McDonagh on behalf of Great Lakes Council v Birdon Dredging Pty Ltd

[1998] NSWLEC 102

Land and Environment Court

of New South Wales

CITATION:	Fyvit Pty Limited v. Gosford City Council [1998] NSWLEC 102
PARTIES:	APPLICANT Fyvit Pty Limited RESPONDENT Gosford City Council
FILE NUMBER(S):	40142 of 1998
CORAM:	Pearlman J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	06/08/98
DATE OF JUDGMENT:	08/11/1998
LEGAL REPRESENTATIVES:	APPLICANT Dr G A Flick SC Ms L Byrne, Barrister Neil Lawson & Co RESPONDENT Mr P C Tomasetti, Barrister P J Donnellan & Co

JUDGMENT:

By its amended class 4 application, the applicant seeks orders in the nature of mandamus and declaratory relief in connection with a condition of development consent granted by this Court on 13 August 1993.

That development consent, numbered 10373, was granted subject to conditions consequent upon an appeal in respect of a proposed development known as "Georgiana Towers" at 107-111 Henry Parry Drive, Gosford ("the site").

Condition 11 of the development consent is in the following terms:

"(11) The development shall be carried out in such a manner that:

(i) there shall be control of erosion and minimisation of downstream sediment transfer during the construction period and for the full period of operation of the development, and

(ii) stormwater run-off from all roofed and paved areas shall be collected in a system of gutters, pits and pipelines for disposal as directed by the Director - Works.

Engineering plans (4 copies) are to be resubmitted with the building application giving full details for both short term control during construction and establishment, plus ongoing operation of the system. The works shall comply with the General Principles as set down in the publication "Urban Conservation and Sediment Control" published by the Soil Conservation Service.

No clearing, earthmoving or construction works are to commence until such plans have been approved by the Council."

There is no issue that two sets of plans (collectively, "the engineering plans") have been lodged with the respondent. One set, prepared by George Floth Engineers, are dated May 1998 and June 1998 and are numbered SW-01 and H01 to H07 respectively. The other set, prepared by D.L. and N.J. Jeffrey Pty Ltd, were, for the purpose of the hearing, numbered DJ 1, DJ 2 and DJ 3 respectively.

The orders which the applicant now seeks may, having regard to the facts I have outlined, be briefly stated. They are:

* An order in the nature of mandamus directing the respondent to approve forthwith the engineering plans pursuant to condition 11;

* An order in the nature of mandamus directing the respondent to issue forthwith to the applicant approved plans for sediment and erosion control and stormwater management pursuant to condition 11 being the engineering plans;

* A declaration that the respondent has, within the meaning of and for the purposes of condition 11, approved plans for sediment and erosion control and stormwater management, being the engineering plans;

* A declaration that the applicant may forthwith commence clearing, excavation, earthworks and construction of footings upon the site.

The competing arguments

The resolution of these proceedings depends upon the proper construction of condition 11.

The applicant claims that condition 11 requires simply the performance of a mechanical task of approving the engineering plans. If the engineering plans satisfy the description in condition 11, then they must be approved. In relation to that approval, either the position is that the council has no discretion and the engineering plans must simply be approved, or that, even if there is a residual discretion in relation to the engineering plans, there can be no rational alternative but to approve them.

The council claims that the approval of the engineering plans is part and parcel of the building application. No separate approval of the engineering plans is required by condition 11. Instead, condition 11 requires the engineering plans to be resubmitted with the building application, and the approval which is referred to in condition 11 is the building approval.

The evidence

No evidence was adduced by the council, but the applicant relied on the affidavit evidence of Mr G A Cotter, a building surveying consultant, Mr D L Jeffery, a civil engineer who is the managing director of D.L. and N.J. Jeffery Pty Ltd, and Mr A Cowley, a senior hydraulics engineer employed by George Floth Pty Ltd.

The evidence of Mr Jeffery and Mr Cowley was adduced to prove that the engineering plans satisfy the description of the plans required to be submitted by condition 11. Mr Jeffery and Mr Cowley each deposed to their opinion that the plans that they had respectively prepared dealt with sediment and erosion control, nutrient control and stormwater run-off, and each of those plans was prepared in accordance with the publication "Urban Conservation and Sediment Control". Neither Mr Jeffery nor Mr Cowley were cross-examined, and, as I have said, the council adduced no evidence. I accept, therefore, that the engineering plans satisfy the description of plans required to be submitted by condition 11.

Mr Cotter deposed to conversations which he had had with various council officers. The applicant claims that some of those conversations establish that the engineering plans have in fact been approved by the council. The relevant evidence is as follows:

Conversation between Mr Gary Lofts, a council officer and Mr Cotter on 17 July 1998:

"Cotter: OK, I'd like to have the approved Sedimentation Control Plan. Do you have them?

Lofts: I'm not sure that I have them with me. I'll have to locate the file and let you know this afternoon.

Cotter: The sediment plans were submitted on 5 June 1998 and we believe they are approved and would like them released. You do have them don't you?

Lofts: Yes, we do have them here somewhere ..."

Conversation between Mr Phil Coon and Mr Rod Burrough, both council officers, and Mr Cotter on 17 July 1998:

"Cotter: I'd like to confirm that you have the stormwater plans and that you are happy with them.

Coon: Yes I have all the plans and they seem to be fine. I may just have to add a few standard conditions to the general notes on plan number HPD1/93-1. Do you mind?

...

Cotter: So, Phil, you are happy with the stormwater plans and do not need any more details?

Coon: Yes."

Further conversation between Mr Lofts and Mr Cotter on 17 July 1998:

"Cotter: Gary have you been able to find the approved Sediment Control Plans yet?

Lofts: I haven't had a chance however I asked Phil Coon and he said he hasn't got them."

Mr Cotter annexed to his affidavit some correspondence between the council and the applicant. One letter, dated 26 May 1998, contained a request by the council to the applicant for further information encompassed in some 42 items. Item 1 dealt with the design and details of sediment and erosion control. In a later letter, dated 16 June 1998, the council advised the applicant that, amongst others, item 1 had been "assessed and accepted".

Mr Cotter was cross-examined at some length about the nature of the development the subject of the development consent. He said that it was a large development and some excavation was required. (I note that the engineering plans show the site to be a sloping one). He conceded that some of the structures delineated in the engineering plans required further detail. He said that a building application had been lodged, and acknowledged that council had been taking the usual steps in assessing it. He confirmed that the building application had not yet been determined.

Finally, Dr Flick formally admitted on behalf of the applicant that an inspection of the council file revealed that it did not contain any evidence that the engineering plans had been the subject of a resolution of the council.

The proper construction of condition 11

In my opinion, condition 11 contemplates the lodgment, processing and approval of the engineering plans as part of the building application approval process. Hence, the reference to "approval" of the council is a reference to the building approval.

I reach that conclusion from a consideration of the purpose of condition 11, the context in which it appears, and the language used. Condition 11 is a condition of development consent in respect of a large development upon a sloping site. In those circumstances, the question of the possibility of adverse impact from erosion, sediment transfer and stormwater run-off bears greater significance than usual. The purpose of condition 11 is to mitigate that adverse impact. Hence, condition 11 requires control of erosion and minimisation of downstream sediment transfer both during and after construction, and the appropriate collection of stormwater run-off from all roofed and paved areas.

That context underlies the requirement for plans which provide "... full details for both short term control during construction and establishment, plus the ongoing operation of the system". The context also explains why condition 11 provides for the engineering plans "... to be resubmitted with the building application ...". The council needs to be satisfied that adverse impact will not occur. That can only be assessed in the light of the proposed construction because the controls are to apply after construction as well as before. The council can only satisfy itself of the mitigation of impact in the course of an assessment of the proposed building works, because the detail of those building works bears upon the possibility of impact.

In that context, too, the last sentence of condition 11 can be understood. No preparatory works are to be carried out on the site until the council has "approved" the engineering plans. That stricture is obviously designed to mitigate adverse impact.

It follows therefore, that I reject Dr Flick's submission that the "approval" required by condition 11 is merely a mechanical task to be undertaken by the council after the engineering plans are lodged. It is not, as he contended, simply a part of the development approval process that the Court left for the council to attend to when the engineering plans were before it.

Nor does condition 11 contemplate some separate council approval. It would be unusual for a council to approve aspects of a development in a piecemeal way, although no doubt it could be done. But it would need clearer language than the language of condition 11. Indeed, the reference to the re-submission of plans "with the building application" indicates a contrary intention.

Furthermore, I do not accept that the council has, in any event, approved the engineering plans. The conversations between Mr Cotter and the council officers do not constitute council approval. Those who were questioned by Mr Cotter obviously believed that they were being questioned about the whereabouts of the engineering plans, not that they were being asked to approve them or at least to confirm their approval. That conclusion is not disturbed by the letter noting that the engineering plans had been "assessed and accepted", nor by Mr Cotter's evidence, in cross examination, that normal practice involves the assessment of various aspects which are then put aside whilst the remainder of the assessment process takes place. The letter to which I have referred is council's reply consequent upon further information being lodged by the applicant in response to the council's request. In that context, it is merely an acknowledgment that the information has been accepted as satisfying the request. And Mr Cotter's ev

idence merely reflects the approval process, it does not establish an approval of the engineering plans independent of the whole building application approval process.

Dr Flick asserted that, if the Court were to hold that approval of the engineering plans contemplated by condition 11 was part of the building approval, it would amount to an illegitimate extension of the statutory requirement for building approval. He submitted that some of the matters set out in the engineering plans would not, individually, require building approval under s 68 of the Local Government Act 1993, and hence a construction of condition 11 which requires building approval in respect of them would be beyond the requirement of s 68.

In my opinion, that contention misconceives the nature and effect of condition 11. It does not purport to require building approval for works which would not require such approval under the statute (even if the engineering plans contained such works). Rather, its effect is to require the assessment of sediment and erosion control and stormwater run-off works, not in isolation, but together with building works as a whole.

The council has not yet completed its assessment of the building application, and I do not understand the applicant to be seeking an order in the nature of mandamus to compel it to complete that assessment and to grant or withhold building approval. I do not deal, therefore, with the submissions put by Dr Flick in relation to the circumstances in which an order in the nature of mandamus might lie.

Orders

In accordance with the foregoing reasons, the application must be dismissed. I make the following formal orders:

1. The application is dismissed.

2. The applicant must pay the costs of the council as agreed or as assessed.

3. The exhibits may be returned.