Moorebank Recyclers Pty Ltd v Liverpool City Council - [2009] NSWLEC 100

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100

PARTIES: Moorebank Recyclers Pty Ltd (ACN 067 281 083) (Applicant)
Liverpool City Council (First Respondent)
Tanlane Pty Ltd (ACN 057 579 718) (Second Respondent)
Boral Bricks Pty Ltd (ACN 082 448 342) (Third Respondent)

FILE NUMBER(S): 40748 of 2007

CORAM: Lloyd J

KEY ISSUES: JUDICIAL REVIEW :- local council - development consent for road bridge - validity - written consent to development application required from landowner - landowner providing written consent for particular area of land - development consent valid as landowner's intention was to consent to the development application - relevant considerations - future use of adjoining land - impact on surrounding land - misleading documents before council in relation to future use - conditions of consent - whether conditions left to later consideration matters which should have been considered

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C and 80A
Environmental Planning and Assessment Regulation 2000 cl 49(1) and cl 115(1)(h)
Liverpool Local Environmental Plan 1997 cl 9, cl 10, cl 24, Sch 4
Liverpool Local Environmental Plan 2008

CASES CITED: Akpan v Minister for Immigration & Ethnic Affairs (1982) 58 FLR 47
Anderson v Minister for Infrastructure, Planning and Natural Resources [2006] NSWLEC 725, (2006) 151 LGERA 229
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172
Bruce v Cole (1998) 45 NSWLR 163
Brunetto v Collector of Customs (1984) 4 FCR 92
Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
El Cheikh v Hurstville City Council [2002] NSWCA 173; 121 LGERA 293
Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33
Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546
Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
Lego Australia Pty Ltd v Paraggio (1996) 52 FCR 542
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Parramatta City Council v Hale (1982) 47 LGRA 319
Price v Elder [2000] FCA 133; (2000) 97 FCR 218
R v Kylsant [1932] 1 KB 442
Scott v Wollongong City Council (1992) 75 LGERA 112
Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363
Sharples v Minister for Local Government [2008] NSWLEC 328
Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341
Waterford v The Commonwealth (1987) 163 CLR 54

DATES OF HEARING: 11 March 2009; 12 March 2009; 13 March 2009, 27 May 2009 and 28 May 2009

DATE OF JUDGMENT:
23 July 2009

LEGAL REPRESENTATIVES:
Applicant:
D P Wilson (barrister)
Solicitors:
Mark McDonald & Associates
First Respondent:
Submitting appearance
Solicitors:
Marsdens Law Group
Second Respondent:
T S Hale SC and J B Maston (barrister)
Solicitors:
Minter Ellison
Third Respondent:
Submitting appearance
Solicitors:
Hunt & Hunt

JUDGMENT:

- 1 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Thursday, 23 July 2009

LEC No. 40748 of 2007

MOOREBANK RECYCLERS PTY LTD v LIVERPOOL CITY COUNCIL & (2) ORS [2009] NSWLEC 100

JUDGMENT

1 HIS HONOUR: The applicants, Moorebank Recyclers Pty Ltd, own a vacant block of land of about 20 hectares in the City of Liverpool. It is bounded on the east by the Georges River, to the north by land owned by Tanlane Pty Ltd, and to the west by land owned by Boral Bricks Pty Ltd. Tanlane and Boral are, respectively, the second and third respondents in these proceedings.

2 Historically, these areas of land were used in the extractive industries and for allied purposes. Boral and Tanlane now wish to redevelop their land for residential and commercial purposes. Moorebank, on the other hand, wishes to establish a concrete recycling plant, a use which Boral and Tanlane consider inimical to their intended use. Herein lies the problem.

3 These proceedings fit amongst the background of related proceedings before Young CJ in Eq: see Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341. Without addressing the proceedings before Young CJ in Eq in any great detail, I simply note that the parties’ primary concern relates to the method of access to the Moorebank and Tanlane land, and that the question before me is a relatively narrow one, namely, whether a development consent for construction of a road bridge is valid. This development consent was approved by Liverpool City Council, the first respondent in these proceedings.

4 Moorebank contends that the consent is invalid due to concerns that construction of the road bridge will, for reasons which become apparent below, prevent it from having sufficient access to its land. Tanlane, on the other hand, contends that the development consent is valid. Boral and Liverpool City Council have filed submitting appearances in these proceedings.

5 In order to appreciate Moorebank’s concerns, it is necessary to understand the nature of access to the Moorebank precinct.

6 Presently, the only access to the Moorebank land is via a pan handle of land stretching north of the Moorebank block. The pan handle belongs to Moorebank and is about 10 metres wide and about 840 metres long. The pan handle is bounded by the Boral land on its west and the Tanlane land on its east and intersects with Newbridge Road to the north.

7 In 2002, a developer deed was made between the Council and Boral. The deed provides for the redevelopment of the Boral land, which comprises of over 110 hectares to the west of the Moorebank land, for residential and commercial purposes. In order to cater for the redevelopment, the deed also provides for the construction of a new road, Brickmakers Drive, which intersects with Newbridge Road and runs south through the Boral land and roughly parallel to Moorebank’s pan handle, before veering west through the Boral land to meet Nuwarra Road.

8 It is proposed that this new road, Brickmakers Drive, will also be the primary form of access to both the Moorebank land and the Tanlane land to the east of Moorebank’s pan handle. Moorebank requires this access because the Roads and Traffic Authority (“RTA”) has made it clear that it will not allow to use the intersection between the pan handle and Newbridge Road for its proposed future use. That is, in any redevelopment of Moorebank’s land and Tanlane’s land, the RTA will not allow direct access onto Newbridge Road. To enable such alternative access, the development consent in question has been approved. The consent relates to a road bridge which runs east-west from Brickmakers Drive, over Moorebank’s pan handle, and onto Tanlane’s land.

9 The contested development consent, however, relates to the construction of the road bridge only. No part of the design as approved by the Council provides for access to Moorebank’s pan handle. The question of the use of the bridge, including use of the bridge by Moorebank, or by Tanlane was to be the subject of a further application.

10 Moorebank’s specific concerns will become apparent when I address its submissions, which may be summarised as follows:

(1) The development consent is invalid because Moorebank’s written consent was not given to the making of the development application.

(2) The development consent is invalid because the development application was not assessed by the Council in accordance with the Environmental Planning and Assessment Act 1979 (“EP&A Act”).

(3) A number of the development consent conditions run foul of the judgment of the Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734.

Issue 1: Was Moorebank’s consent given in writing in accordance with the provisions of the EP&A Act?

11 Clause 49(1) of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”) provides:

“A development application may be made:

(a) by the owner of the land to which the development application relates; or

(b) by any other person, with the consent in writing of the owner of that land.”

12 Clause 115(1)(h) of the Regulation provides that, if the applicant is not the owner of the land, an application for modification of development consent must contain:

“a statement signed by the owner of the land to the effect that the owner consents to the making of the application (except where the application for the consent the subject of the modification was made, or could have been made, without the consent of the owner)”

13 In 2002, Moorebank entered into a deed with Tanlane. Clause 1 of this deed provides that, in consideration for $1, Moorebank agrees to grant to Tanlane an easement for construction and use of a road bridge. The deed specified that the easement was for construction of a maximum 12 metre wide road bridge over the pan handle and between the Boral land and the Tanlane land, with a minimum height of five metres above the ground surface of the access strip.

14 Clause 2(ii) of the deed then provides that the easement shall:

“be in a location to be specified by [Tanlane] but within the hatched area designated on the Plan annexure ‘A’ hereto.”

15 Clause 3 required Moorebank to execute all such documents as may be necessary to obtain the registration of the easement within 28 days of submission of the documents by Tanlane. In accordance with this requirement, Tanlane’s solicitors arranged for the necessary documents to be provided to Moorebank on 30 January 2006.

16 The location of the easement in these documents and as subsequently registered is, however, different to the location of land that had been specifically designated as “2(a) residential” for the purposes of permitting with development consent the road bridge under amendment 75 to the Liverpool Local Environmental Plan 1997 gazetted on 9 July 2004 (“the 2(a) corridor”). This is clear from the evidence of Mr Bevan Asher, a registered surveyor retained by Moorebank.

17 The consent provided by Moorebank, presumably for the purposes of the Regulation, was annexed to the statement of environmental effects. It took the form of a letter dated 1 May 2006 from Mr Tiberiu Orden, in his capacity as a director of Moorebank Recyclers Pty Ltd. The letter relevantly states:

within the area subject to the proposed easement for road bridge

18 Moorebank submits that, because the consent provided by Moorebank only related to the area of land subject to the easement – which was different to the 2(a) corridor the subject of the development application - the application contravenes cl 49(1)(b) of the Regulation.

19 In support of this primary submission, Moorebank relies on the following:

(a) The evidence of Mr Brent Lawson, a director of Moorebank, which indicates that Moorebank did not see the final stamped development application before it was lodged with the Council. This step was required and made clear to the Council by way of a memorandum dated 3 July 2006 from Mr Stephen Monte to the Council’s assessor, Mr Peter Flynn which stated that: “[w] ritten permission must be obtained from the owners of Lot 6 DP 1065574 (Moorebank Recyclers Pty Ltd) for the construction of the proposed bridge over their land. The letter must make reference to the plans submitted to Council as part of the Development Application” .
(b) The Council erroneously made its decision based on the assumption that sufficient owner’s consent had been obtained. This much was made clear by a Council document entitled “Development Application Assessment” for the relevant development application, which appears to be a checklist to assist in the Council’s decision. On this document, there was a tick against owner’s consent.

20 In view of the evidence before me at the hearing, however, I am unable to accept the submission. In the course of cross-examination, Mr T S Hale SC took Mr Lawson, who is and was a director of Moorebank at all relevant times, to correspondence in April 2006 between Moorebank’s solicitors and Tanlane’s solicitors. After being taken to this correspondence, Mr Lawson gave the following answers to Mr Hale’s questions:

“Q: It was your understanding, was it not, from that point on, agreement had been reached between Moorebank and Tanlane to the effect that Moorebank would give owner’s consent but it was entitled nonetheless to object to design elements of the development application, correct?
A: Yes.

Q. At that particular time, as we’ve already discussed, you knew that the road bridge that was proposed to be the subject of the development application is one that would pass through the 2(a) zone corridor, correct?
A. I didn’t put my mind to it but that would be probably correct.

Q. Well it couldn’t be anywhere else, could it?
A. All I was concerned was that it was in the location of the easement.

Q. You mean in the location identified in the deed of 2002?
A. Yes.

Q. Going back one step, you knew that the development application in respect of which owner’s consent was being sought was one which was going to be constructed through the 2(a) corridor, correct?
A. In reflection you’re right, yes.

Q. At the time you knew that?
A. Probably, yes. I’m not – I didn’t sit there thinking about it, I really don’t know but yes, say yes.
Q. And that it would cross the Moorebank access way immediately adjacent to the 2(a) corridor?
A. Yes.”

21 The evidence that Moorebank’s intention was to consent to the making of the development application for a road bridge within the 2(a) corridor is corroborated by the fact that easement over its land did not exist on 1 May 2006; that on 8 May 2006 Moorebank’s planning consultants wrote to the Director-General of the New South Wales Department of Planning stating, inter alia, that it has given permission to the lodgement of the development application over its access handle; and that on 14 July 2006 the same planning consultants wrote to the Council stating that Moorebank does not object to the concept of a road bridge “as discussed in the application” (but nevertheless submitting that consent should not be granted in its current format).

Conclusion on Issue 1

22 The evidence satisfies me that, despite the terms of its letter of 1 May 2006, the intention of Moorebank in writing that letter was to consent to the making of a development application for a road bridge in the location of the 2(a) corridor. Accordingly, I am satisfied that there has been no contravention of cl 49(1) of the Regulation. If, however, I am wrong in so concluding, then in the exercise of the Court’s discretion I would not be prepared to make a declaration of invalidity in the circumstances here. The Court, of course, has a discretion, and where the evidence is that it was Moorebank’s intention to consent to a development application for a road bridge within the 2(a) corridor, the discretion should be exercised against the grant of declaratory relief.

23 On 22 May 2007, an application was made to modify the development consent under s 96 of the Act. The application for modification was accompanied by the same letter of consent dated 1 May 2006 noted in par [17] above. The modifications which were sought and subsequently approved all relate to a number of inconsequential amendments to some of the conditions of the consent, so as to more properly reflect the intent of the conditions which the Council had imposed on the original consent. The modifications relate to matters of detail rather than substance when compared with the original consent. In these circumstances the development as modified is essentially the same as that to which the original development application relates and may thus be said to be the same application to which the letter of owner’s consent relates. Accordingly, I am satisfied that there has been no contravention of cl 115(1)(h) of the Regulation.

24 If, however, I am wrong in concluding that there has been no contravention of the Regulation and that the Regulation calls for a fresh statement of the owner’s consent no matter how minimal or inconsequential the modification, then again in the exercise of the court’s discretion I would nevertheless not be prepared to make a declaration of invalidity. There is simply no point in making a declaration of invalidity in circumstances where a director of the corporate owner of the land, giving evidence on behalf of the corporation, has stated that the corporation knew that the development application which was the subject of the owner’s consent was for a bridge to be constructed at the location of the 2(a) corridor.

Issue 2: Was the development application assessed by the Council in accordance with the EP&A Act?

25 Moorebank further submits that, in contravention of section 79C of the EP&A Act, the Council failed to take into account relevant considerations in approving the road bridge. Moorebank relies on a number of documents in the Council’s file and upon evidence of its expert witness, Mr Marshall. It is necessary to set out that evidence insofar as it is relevant.

Documentary Evidence

26 On 1 July 2004, the Roads and Traffic Authority (“the RTA”) wrote to the Council and stated that RTA’s support for the draft Local Environmental Plan was contingent upon:

“more information [being] provided in relation to the development’s proposed vehicular access and traffic movement to/from and within the Boral Moorebank precinct … Previous correspondence between the RTA and Council outlined the need to remove existing access points along Newbridge Road in the event of redevelopment of land owned by [Moorebank] Recyclers, [Tanlane] and Flower Power and the upgrading of the Newbridge Road/Governor Macquarie Drive intersection. The intention of the proposed service road … was to provide vehicular access for [Moorebank] Recyclers, [Tanlane] and Flower Power once development of their land occurred and existing access on Newbridge Road is removed. The RTA was of the understanding that once the service road is constructed (and the existing driveway off Newbridge Road closed) ingressing truck movements for [Moorebank] Recyclers would enter through the upgraded Newbridge Road intersection…”

The reference to “the proposed service road” is a reference to the new road within Boral’s land now known as Brickmakers Drive, noted in par [7] above.

27 In relation to a Pt 3A major project application lodged by Moorebank with the Department of Planning, the Department wrote to Council requesting Council’s requirements for environmental assessment. On 3 March 2006, Mr Peter Flynn of the Council, who was the assessing officer of the proposed development, raised concerns with the Department of Planning in respect of the road bridge in question as follows:

“The following information should be provided by the applicant so as to enable a full assessment of the proposal to be carried out:
…

· Owners consent to be obtained for any permanent or interim access obtained over neighbouring properties.

· Details of any temporary access arrangements and their compatibility or otherwise with the master planning of the area.

· Arrangements satisfactory to Council are to be made for the level of contribution for the provision or upgrading (or both) of the arterial roads to service the land …

· Details of the interaction of proposed accessway design with the proposed bridge/easement over the accessway by the adjoining property.

· Design details of the accessway (long and cross sections). The width of the driveway to be a minimum 8 metres to allow for two trucks to pass. Surface to be hard paved so that no mud/debris is carried on to roadway.

· The accessway should be designed to have the ability for trucks (including trucks with dog trailers and articulated vehicles) to enter and leave the site, staying within the kerb side lane, as well as allowing trucks to enter and leave the site simultaneously.”

28 The development application for the proposed road bridge was accompanied by a statement of environmental effects for the proposed development dated May 2006. The introduction states:

“The parameters of the assessment and design required for this development were determined based on legal advice and the consideration of a number of important issues as follows:

· The assessment of impacts from the development such as noise and traffic impacts are properly limited to the construction of the bridge. Therefore any assessment which considers through traffic on the bridge, future traffic networks or future development is entirely speculative and therefore cannot form part of this assessment. Accordingly the noise and traffic impacts resulting from changes to traffic volumes from any future development will need to be addressed as part of the development application lodged for that future development.

…

· There has been considerable consultation with Liverpool Council and adjoining landowners in relation to this development (the road bridge) particularly in respect of access. As a result of this consultation, the development has been designed to provide a single point of access for properties east of Brickmakers Drive ([Tanlane], [Moorebank] Recyclers and Flower Power Sites).

In addition, this development has been designed to accommodate Liverpool Council’s express desire that the road bridge is compatible with the future development of a suitable access for the [Moorebank] Recyclers Site.

· This has been done by designing separate access ramps and associated structures that can be ‘bolted on’ to the road bridge development proposed in this application. These ramps and structures will be the subject of a separate development application and will satisfy the access needs in relation to the [Moorebank] Recyclers Site. The design for the ramps and structures is being funded jointly by the owners of the [Moorebank] Recyclers and [Tanlane] Sites.

In summary, this proposed road bridge design for access to the [Tanlane] Site (as attached) will allow [Moorebank] Recyclers to construct additional ramps for heavy vehicle access without any changes to the attached proposed road bridge design. Therefore the approval and construction of the proposed bridge can proceed without constraining [Moorebank] Recyclers future plans.”

29 By memorandum dated 7 July 2006, comments were made to the Council’s assessing officer, Mr Flynn, by Mr W Petschler, who notes that:

“The SEE [Statement of Environmental Effects] … makes reference to ‘separate access ramps and associated structures that can be ‘bolted on’ to the road bridge’. It is not clear to me what is intended by this. Any approval of the proposed road bridge design should require appropriate details to be provided.”

30 On 14 July 2006, Moorebank’s planning consultants wrote to the Council objecting to the approval of the road bridge. The letter relevantly states:

“Moorebank Recyclers Pty Ltd does not object to the concept of a ‘road bridge’ as described in the Application if such an access arrangement is deemed to be necessary. Rather, it is our submission that the Application should not be consented to in its current format

…

It is clear that [Boral’s] consent has not been given for the lodgement of any application for connection of the proposed ‘road bridge’ to Brickmakers Drive, nor has [Boral’s] consent been given for any ramps or such like which might be ‘bolted on’ to the proposed road bridge to gain access to the Moorebank Recyclers’ land.

…

it is our opinion that the Council is being asked to approve a ‘road bridge’ which effectively connects the [Tanlane] site to nowhere. This is reinforced on the plans provided with the Application which clearly show that the ‘road bridge’ does not connect to Brickmakers Drive. We are of the opinion that, if the Application is to be for access from the [Tanlane] Site to Brickmakers Drive, then the Application should:

(a) be amended to accommodate that access,
(b) provide full engineering detail of both the proposed bridge and how that structure will connect to Brickmakers Drive, and
(c) provide landowners consent for that total development from Boral.

Notwithstanding the above, with regard to the proposed development providing access to the Moorebank Recyclers’ land, this is clearly not the case. As can be seen from the plans provided with the Application, the Application seeks approval for access only to the [Tanlane] Site and does not provide any detail as to how the ‘bolt-on’ ramps to gain access to the Moorebank Recyclers’ land are to be configured.

…

It is also noted that the majority of the land which will accommodate the ramps to give ingress to and egress from the Moorebank Recyclers’ land is zoned 7(c) Environment Protection – Conservation pursuant to the Liverpool Local Environment Plan 1987 … ‘roads’ are a prohibited use in the 7(c) zone. As such, the construction of access to the Moorebank Recyclers’ land which is stated in the SEE as being ‘unfettered’ by the proposed ‘road bridge’ is a prohibited use in the zone land and, as such, cannot be consented to by the Council without a rezoning of the 7(c) land.

In light of the above, we are of the opinion that the Council should not grant consent to the proposed incomplete access and should only consider a development application which not only provides for access to the [Tanlane] site but also caters for access to Brickmakers Drive and provides for access to the Moorebank Recyclers’ land.

We are of the opinion that the most effective means by which the complete access arrangement can be assessed by the Council is for the Application to be amended to a Staged Development Application

…

31 On 26 July 2006, the Council adopted the Boral Moorebank Land Development Control Plan No 50 which states as one of its access objectives:

“Link the site with its surroundings by connecting to external road networks, pedestrian and cycle paths, public transport routes and public open space networks.”

32 Under the list of access controls, the Development Control Plan states:

“Provide a new link road between Nuwarra and Newbridge Roads within a 30m wide road reserve from the north for the first 220m narrowing to 18m, designed in consultation with RTA and Council.”

33 On 2 August 2006, Tanlane wrote to the Council to confirm a number of issues. The letter states:

“With the help of our legal advisors we have made a thorough examination of the Environmental Planning and Assessment Act and Regulations and as yet we have not discovered a heads of consideration which requires us or Council to consider proposed access for possible future developments on neighbouring properties.

While we are happy to assist Moorebank Recyclers, subject to normal commercial parameters, the issue of access for Moorebank Recyclers is not properly considered within the assessment process for the development application for the road bridge.

…

It is important for Council to realise that in determining our development application for a road bridge, any consideration of future developments or uses which encompass issues such as access for Moorebank Recyclers, details of intersections, cycle ways or pedestrian access is entirely improper. These are appropriately addressed as part of future applications.”

34 On 22 August 2006, the Department of Environment and Conservation wrote to Mr Tolhurst of the Council. The letter states:

“The DEC understands… that as part of the planning process for the Boral site, it was determined that a road connection was required to allow the development of the three eastern properties to access the new proposed Link Road to be constructed as part of the Boral project. The LEP amendment allowed for an 18 metre wide corridor to facilitate this connection. However, during the detailed design phase it has become evident that a wider corridor is required to permit the bridge construction and entry/exit ramps.
The ‘concept plan’ submitted with your correspondence indicates that it is proposed to rezone an area for the road works (435m2) and an ‘additional zone 2a area’ (2217m2) of land currently zoned 7(c) Environment Protection – Conservation to 2(a) Residential. It is noted that the correspondence did not include any justification for the size or location of the proposed ‘additional zone 2a area’. It is noted however, that during a telephone conversation on 14 August 2006 between yourself and … the DEC, you indicated that it may [be] possible to reduce the size of the area detailed in the plan required to be removed from the 7(c) zone for the works.

The DEC has considered the proposed rezoning and generally has no major objection to the proposed amendment to widen a portion of the corridor to permit the road works. However, DEC does not support the proposed ‘additional zone 2(a) area required’ not subject to road works being removed from the 7(c) Environmental Protection zone. A review of the ‘concept design’ clearly indicates that the total area to be removed from this zone is unnecessary for the proposal and there is scope to significantly reduce the total area required to be rezoned. It is also important for Council to note that the current option may be inconsistent with the assumed concurrence that was granted by the DEC on the basis of LEP Amendment no. 75…
It is therefore recommended that Council explore options with the applicant to minimise the extent and area of land required to be zoned 2(a) residential to permit the construction works. Council is advised that DEC will provide additional comments on the proposal following receipt of the alternative options.”

35 By fax dated 23 August 2006, Tanlane responded to Moorebank’s objection to the development application noted in par [30] above. The letter states that the issue of future access for Moorebank was not relevant to the outcome of the development application:

“We further note that the main issue raised by Moorebank Recyclers Pty Ltd is the issue of their future access. Given that our proposed development in no way denies or impedes Moorebank Recyclers Pty Ltd access, this issue [is] not a matter that Council can properly consider in determining the development application. Again, we note that Moorebank Recyclers Pty Ltd does not contend that the proposed development is interfering in any way with their existing access. However, it is essential that Council recognise that this application is not about Moorebank Recyclers Pty Ltd’s access. The view of our legal advisers is that if Moorebank Recyclers Pty Ltd requires alternative access it needs to negotiate an agreed solution on an appropriate commercial basis with adjoining landowners who may be able to provide that alternative access. Council has no role in this process.”

36 The Council’s Development Assessment Panel report dated 22 November 2006 recommended approving the development. Under the heading “Comments on Submissions”, the report states:

“1. The applicant is under no obligation as to when an application for the bridge to provide additional access to its property is lodged, commenced or completed. The bridge is within the corridor designated for road access and is permissible. Nor is the applicant obligated to provide access for [Moorebank] Recyclers. The development does not preclude it occurring later, subject to the rezoning of additional land and subject to owner’s (Boral’s) consent. The bridge if approved and constructed now may end up preceding the approval or commencement of adjoining development (eg the foreshadowed turning paths on the bridge are based on a 8.8m rigid vehicle which would appear inadequate for future subdivision traffic) or even in excess of what may be required. This is a business risk for the developer . If the bridge is inadequate for what may be approved or proposed for adjoining land it may be required that the bridge will need to be upgraded, supplemented or rebuilt .

The development timeframes of the various parties involved in the access road do not need to coincide although in an ideal situation they would and parties would not be concerned about relative commercial advantages or disadvantages. The applicant has stated that a staged development has not been requested. In the long run the adjoining Boral land will become public land.

The proposed bridge if it is desired by the applicant to be taken over by Council will not be accepted unless and until subdivision/development occurs to the east and such transfer would be subject to further conditions deemed appropriate at that time.

2 Although access ramps are not proposed for the bridge at this stage the applicant has supplied details that such ramps can be physically accommodated at a future point in time. The ramps will substantially fall outside the road corridor on to adjoining 7(c) zoned land. DEC has indicated to Council that it does not object to the widening of the road corridor into the 7(c) zoned land. Council will need to rezone the required land. The surrounding 7(c) land is currently owned by Boral but is proposed to be transferred to public ownership. A condition is proposed to be imposed that the bridge design is to be able to accommodate the proposed bolt on ramps. [Moorebank] Recyclers current access arrangements, ie, the 10 metre accessway on to Newbridge Road is insufficient for the proposed usage of the site for material recycling.”
(emphasis added)

37 Under the heading “Section 79C Considerations”, the report states:

(a) Likely Impact of the development on both the natural and built environment

…

(iv) Relationship to Adjoining Developments

The bridge proposal as submitted can be viewed as the first stage in providing access to development properties to the east of the Boral development.

…

(b) Suitability of the Site

(ii) Traffic & Parking

The bridge is adequate to provide car and limited truck access to the [Tanlane] site from the Boral site. The bridge because of the residential zoning of the corridor cannot be utilised to provide access to the current development on the [Tanlane] site. The current development on the [Tanlane] site is not permissible in residential zoned land, unless the road is dedicated as a public road. Also the approvals on the [Tanlane] site would need to be appropriately modified to permit alternate access.

…

(e) Public Interest

The public interest is considered to be the provision of infrastructure in an orderly and efficient manner.”

38 Under the heading “Checklist and Determination” the report states:

“Objections do not warrant refusal of the application. The proposal is only for the construction of the bridge only. A separate development application will be required for the use of the bridge.

Although access ramps have not been proposed, the applicant has provided conceptual details which show that future ramps can be accommodated at a future point in time. However, such ramps would fall outside the corridor and onto the adjoining 7(c) zoned land. Notwithstanding this, the Department of Environment and Conservation has indicated to Council that it does not oppose the widening of the corridor into the 7(c) zoned land.

It is considered that the bridge is required to provide flood free, and safe access from the [Tanlane] site to the Boral site . Such an arrangement is unlikely to hinder access to the Concrete Recycler’s site. ”
(emphasis added)

39 On 11 December 2006, in an addendum to the Council’s Development Assessment Panel report, Mr Adam Coburn, the manager of statutory planning and compliance for the Council, indicated he was unable to support the proposal in its form and based on the information that forms part of the application. After proposing that the application go to the Council’s Independent Hearing and Assessment Panel (“the IHAP”), he noted that the main issues that needed to be resolved before sending it to IHAP were:

· “The premature nature of the bridge, and that it does not provide any access to a developed or approved activity;

· The proposed bridge does not connect to the Brickmakers Drive area, leaving a small section of land;

· The bridge does not promote the orderly and economic use of land in accordance with the objectives of the Act;

· Whether there would be a legal constraint regarding the proposed dedication of the bridge over private land in the future, ie over [Moorebank] Recyclers access handle?

· The original structure plan for the area identified the current location of the access, so that it could facilitate [all] properties within the area, [Moorebank] Recyclers, [Tanlane]. While there is some merit to the proposed bridge, it provides access to the [Tanlane] site at the detriment of the [Moorebank] Recyclers property, which is already zoned for redevelopment;

· While there are plans for future add on of an ‘on’ and ‘off ramp’ onto the bridge for use and construction by [Moorebank] Recyclers, this would require an LEP amendment to allow for encroachments into the Environment Protection land. Without the LEP amendment, this development in my view is premature.”

40 The development application was considered by an Independent Hearing and Assessment Panel appointed by the Council. The IHAP report is dated 1 March 2007. Its recommendation is that the application be refused due to “the likely impacts of the development, including environmental impacts on both the natural and built environment”.

41 The IHAP report states:

“In response to the criticism by Moorebank Recyclers that the proposed bridge stops before it reaches Brickmakers Drive the applicant said: ‘From a practical perspective we note that the proposed bridge construction is carried out up to the boundary of the Brickmakers Drive Intersection. Any perceived ‘gap’ is inconsequential from a planning or construction perspective. We note however, that the bridge has not been connected to Brickmakers drive because the nature of the intersection design and connection will be dependant upon the outcome of any development application from [Moorebank] Recyclers and the outcome of our rezoning application’.

Proposed condition 7 states: ‘ Consent is not granted nor implied to any future usage of the road bridge as a private road that provides access to development that is not permissible within a Residential 2(a) zone’ . Moorebank Recyclers claimed: ‘There is no activity located on the [Tanlane] site which is permissible in the 2(a) zone, the [Tanlane] site being zoned 1(a). As such, the proposed bridge does not connect to Brickmakers Drive nor can it be used for any purpose for which the [Tanlane] site is being used. As such why is such a bridge required, and for what planning purpose is it proposed?’

The response was to quote the Assessing Officers report: ‘This issue has been discussed at length with the assessing officer and legal advice has been obtained and provided to Council on this matter. The development provides a benefit to the applicant and whether the bridge is ‘premature’ is not a matter to be properly considered by Council. The proposed bridge suits the applicant access requirements.
It is also apparent that this statement points to one hand of Council not knowing what the other hand is doing. We confirm that the bridge application is a direct response to Council’s initiatives to develop a shared access arrangement for the properties east of Brickmakers Drive i.e. for [Moorebank] Recyclers, Flower Power and [Tanlane]. The need for this solution was discussed at length at meetings between the landowners (including Boral) and Council which were convened by Council for this very purpose in January and February 2006. The ultimate purpose of the bridge is to facilitate access in accordance with Council’s structure Plan and our rezoning application which has been with Council for 12 months. Our Company has made a business decision to progress the matter now to anchor this solution. On what basis does Council decide a discretionary business decision and private development is premature?’

Moorebank Recyclers claimed that they have ‘stated on many occasions, if the proposed development provided access to both the [Tanlane] site and the Moorebank Recyclers’ land, then Moorebank Recyclers would have no concern with such a development proposal’.
The response was ‘Future access from the bridge to Moorebank Recycler’s site is accommodated and provided for by this application’. Also, ‘Moorebank Recyclers are clearly alleging suffering some sort of detriment in respect of access as a result of this development. This is not the case and has been dealt with in the IHAP report at page 101 and 102.
The IHAP committee was advised verbally, and we now confirm in writing that the future access design contained in the IHAP report was developed in collaboration with Moorebank Recyclers and [Tanlane] and Moorebank Recylers each paying 50% of the costs of retaining Patterson Britton Engineers to undertake this task. This is the design which incorporates the bot on ramps discussed in the report and submitted by Moorebank Recyclers themselves to Council by their own planning consultant. For Moorebank Recyclers to now submit the ‘new’ design is dishonest.
The ‘new’ design tendered at the IHAP meeting is simply a version of previous Moorebank Recyclers design that has been superseded because it contains considerable flaws. These flaws are addressed at point 6.’

Point 4 related to future possible applications.

On the question of adequacy of the bridge the [Tanlane] Response included ‘We are happy with the design and understand the risks inherent in building something that may not suit a future development. However, we would point out that this is a business risk for our company and is not a consideration for Council. Moorebank Recyclers are scaremongering in relation to this issue as development applications may be made in say, 5 or 50 years. Issues will need to be dealt with on their merits as they arise. In summary, the bridge design works for [Tanlane’s] range of future uses and we have demonstrated that Moorebank Recyclers can access this structure to meet their needs which includes the extreme number and size of heavy vehicles they are contemplating let alone what would accompany a normal commercial industrial development.’

In the Officer’s report at page 98 the Council’s Manager of Statutory Planning and Compliance raised six issues that he believed would be resolved and dealt with prior to sending it to IHAP. Some of these issues were also expressed in similar terms in the objection by Moorebank Recyclers.

42 The IHAP report then refers to the case of Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68, quoting Cole JA (at 77):

“[D]evelopment consent should not be granted unless, having weighed the factors requiring consideration pursuant to s 90 [since replaced by s 79C], it could be said, on balance, that consent should be granted. If, at the time of considering whether consent should be granted, the incompatibility between the proposed development and that on an existing adjacent property cannot be resolved by the imposition of conditions upon the developer/applicant, the development should be refused. In my opinion it must be recognised that the decision maker considering the grant of a consent has no power to impose conditions upon a neighbouring land holder or his exercise of a legally permitted use on that land.”

43 The IHAP report is annexed to a final report dated 16 April 2007 which was signed by Mr Coburn and which was also before the Council. In contrast to the IHAP report, Mr Coburn recommends that the Council consent to development application subject to conditions. It is necessary to set out the report:

“The road bridge is proposed to provide access through a nominated road corridor, from Brickmakers Drive through to land owned by [Tanlane]. The bridge has been designed to cater for additional ‘on’ and ‘off’ ramps that will facilitate vehicle access to the adjoining [Moorebank] Recyclers site, sometime in the future.

On the merits of this application, the road bridge is worthy of support, it poses no adverse environmental impacts and is necessary to facilitate the future development of the locality.

…

The current owner of the road corridor, and the land adjoining the corridor, is Boral. The road corridor is to be dedicated to Council within the next few months, along with the dedication of Brickmakers Drive… The land adjoining the corridor, zoned 7(c) Environmental Protection, is required to be dedicated to Council at the time that 480 lots are released within the Boral development (under the terms of the Developer Agreement).

The main issue raised in the submission from the adjoining [Moorebank] Recyclers property, relates to the provision of vehicle access to their site. [Moorebank] Recyclers currently have vehicle access to Newbridge road, via a 9m wide access handle, however there is no approval for activity on the site. While the proposed road bridge does not alter the existing access arrangements for the [Moorebank] Recyclers site, it does not provide for direct vehicle access from the bridge to the [Moorebank] Recyclers site. Notwithstanding this, the bridge design provides for additional on and off ramps to be provided either side of the bridge at a later date. These ramps will provide direct vehicle access from the bridge to the [Moorebank] Recyclers property, and its design has been certified from an appropriately qualified Engineer.

The on and off ramps discussed above, are located outside the 2(a) road reserve and are within the 7(c) Environment Protection Zone. While the current zoning and land ownership prevents [Moorebank] Recyclers proceeding with on and off ramps, there will be a time in the future, in which they will be able to access the bridge. This is dependent on Boral dedicating the 7(c) Environment Protection land to Council, which has been earmarked to occur by the end of the year. This has been confirmed in writing by Boral to Council.

The on and off ramps are required given the nature of the large articulated vehicles that [Moorebank] Recyclers will operate from their site once approval is obtained, particularly the large swept curves of these vehicles. [Moorebank] recyclers are currently discussing a Part 3a Project Application with the Department of Planning. A hurdle to [Moorebank] Recyclers lodging this application with the Department of Planning, has been that their current access via the long access handle is not sufficient to cater for the traffic volumes and articulated vehicles.

It is likely in any event that the limited width of the 18m wide corridor would prevent access to the [Moorebank] Recyclers site, given the geometry of the 90 degree turning movement required and the change in level. [Moorebank] Recyclers would require large turning movements for trucks and other large articulated vehicles associated with their proposed recycling business, and even in its present form, access from their site onto the road corridor is likely to prevent such movements.

There have been other concerns raised regarding the premature nature of the bridge and that it is not currently required. The bridge is considered an important infrastructure device which would be required to facilitate development on adjoining sites in any event on both [Tanlane] and [Moorebank] Recyclers sites. While it is rare that the infrastructure is proposed prior to development occurring, the development raises no adverse environmental or built form impacts and will assist the timely delivery of future development.

The location of the road corridor and the bridge also correlates with the structure plan for the Moorebank precinct. The structure plan nominated indicative land uses and access points, but does not go into detail as to the timing of the provision of access, or land uses.

This application is currently subject to a Class 1 deemed refusal appeal before the Land and Environment Court. This matter is set to be listed for hearing and court appointed experts to be determined by the court. Approval of the application is likely to result in the court matter being withdrawn.

The Acting Corporate Manager – City Planning and General Manager recently met with all affected land owners which include Boral, [Tanlane] and [Moorebank] Recyclers to discuss access arrangements over the Moorebank and Link Road precinct. The meeting attempted to mitigate the issues raised by [Moorebank] Recyclers and the needs of the applicant and landowner. While a full agreement had not been reached there had been a partial agreement on the bringing forward of the 7(c) Environment Protection Land, which will help facilitate the timely access to the proposed road bridge to all affected landowners.

In summary the road bridge is necessary to provide flood free access through the nominated road corridor, and is located within the corridor identified in the structure plan for the Moorebank precinct. There are some minor ancillary issues that are proposed to be dealt with by imposition of additional conditions of consent, namely pedestrian access and lighting, temporary vehicle turning heads to be shown on the [Tanlane] site, submission of plans showing the completion of the road bridge so that it meets up with Brickmakers Drive and that all works are at no cost to Council.

Expert Evidence

44 Two engineering experts gave evidence in these proceedings in relation to condition 45 of the development consent, which states: “The bridge is to be certified that it complies with Australian Standard 5100 – Bridge Design Code (AS5100)”.

45 Moorebank’s expert, Mr Marshall, deposed that a bridge could be certified as complying with AS5100, even though it did not carry vehicles typically used by Moorebank for its intended use. Tanlane’s expert, Dr French, deposed that all possible loading conditions will be considered in the detailed design process of the bridge and that AS5100 provides “ample” requirement to design to Moorebank’s requirements, and that full provision is made for those loads in AS5100.

46 Both experts were required for cross-examination. Moorebank’s expert, Mr Marshall, was taken to AS5100, and specifically the requirements under AS5100 for design loads mentioned in cl 6.2(b). Mr Marshall gave the following responses in cross-examination:

“Q: If the bridge is designed to comply with each of the 12 standards identified in 6.2(b) then it will be sufficient strength, will it not – or the bridge will have sufficient strength to deal with the heaviest or largest legal trucks carrying the maximum load they are permitted to carry?

A: Yes, it would probably be over designed.

Q: If the bridge under consideration is designed to comply with each of the criteria in 6.2(b) then that bridge would probably be over designed?

A: Yeah you used the word ‘if’, so yes.”

47 As I understand the evidence, Mr Marshall’s qualified response to the second question above was made in reference to the evidence he gave that, under the standard, the Council had an overriding discretion under cl 1.2 of AS5100 to modify the design loading so that the criteria in cl 6.2(b) would not need to be satisfied.

48 The question that needed to be resolved, therefore, was whether the Council has an overriding ability under AS5100 to allow a bridge to a lower standard than the criteria required by AS5100 for the heaviest or largest legal trucks, and if so, whether the Council has exercised that ability. This was addressed by Dr French in cross-examination.

49 Dr French provided the following evidence:

(a) On his interpretation, in order to comply with condition 45 of the development consent, the bridge would have to comply with the standard full loadings of AS5100, that is, each of the criteria in cl 6.2(b) mentioned in par [46] above.

I don’t see this geometric vehicle as giving me authority as an engineer to design to a lesser standard than the code

much more clear and specific direction by the Council

50 I conclude from this evidence, therefore, that condition 45 of the development consent which requires the bridge to be designed in accordance with the loads prescribed in AS5100 would be sufficient to deal with the trucks and loads required for Moorebank’s future use. Even if cl 1.2 of AS5100 allowed Council to modify the requirements of load prescriptions, I reject any suggestion that the Council had modified those requirements, merely by virtue of the stamped approved plans showing a design vehicle with a load capacity lower than the standard loads prescribed by AS5100. I also reject Moorebank’s submission that condition 45 was ambiguous.

Moorebank’s Submissions

51 Section 79C of the Environmental Planning and Assessment Act relevantly states:

(1) Matters for consideration - general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument

…

that apply to the land to which the development application relates,

(d) any submissions made in accordance with this Act or the regulations,

52 Mr D P Wilson, appearing for Moorebank, submits that the above documentary evidence (pars [26] to [43]) demonstrates the following contraventions of s 79C:

(a) The Council failed to consider whether the bridge would harm Moorebank’s access, and erroneously considered that the bridge would not harm Moorebank’s access.

(b) The Council failed to consider what the bridge might have to carry. The design and structure of the road bridge was insufficient to allow access for the purposes of concrete recycling, a permitted use on Moorebank’s land. The approved plans were of the lowest possible standard for the construction of a road bridge, and even though provision was made in the development consent for “bolt on” ramps, Council did not consider how these proposed “bolt-on” ramps would be configured. The Council erroneously believed that, even though there was a possibility that the bridge would not provide adequate access to Moorebank, this was a “business risk” to Moorebank and should not be taken into consideration by their decision.

(c) The Council did not consider how the bridge would be connected to Brickmakers Drive.

(d) The Council failed to properly consider the local environmental plan due to a misunderstanding of the constraints imposed by the zoning. On Moorebank’s interpretation of the local environmental plan, the Council erroneously believed that the 7(c) Environmental Protection land to the north and south of the 2(a) corridor would need to be rezoned in order to accommodate the ramps, as a ‘road’ was not a permitted use within a 7(c) zone. In so doing, the Council tied itself to not considering what its proper options were.

(e) The Council failed to properly consider its options available under the EP&A Act. The approval could have been made subject to a deferred commencement condition so that the development was contingent upon further details of the proposed access onto and off the bridge. Alternatively, the approval could have been conducted as part of a staged development.

(f) The Council erroneously considered that this would be the first stage of a staged development.

(g) The Council did not properly consider design details of the bridge to accommodate bicycle and pedestrian movements, or the adequacy of the bridge to accommodate those movements.

53 Moorebank further submits that Council failed to consider the possibility that access may never be obtained from the bridge onto its land.

54 At present, the land to the left and right of the proposed bridge is owned by Boral. However, the developer deed, mentioned in par [7] above, requires Boral to dedicate this land, currently zoned 7(c) under the Liverpool Local Environmental Plan 2008, to the Council for the purposes of the ramps. Clause 6.1 of the deed relevantly provides that Boral must dedicate to the Council the land designated as “Dedicated Land” within the time limit provided in cl 6.2.

55 Dedicated Land” is defined in the deed to include the land for the proposed bolt-on ramps and cl 6.2 of the deed provides that the time limit for dedication of this specific land is:

“Prior to the release by the Council of any plan of subdivision that would result in greater than 480 lots being created from the subdivision of the Boral land .”

56 Clause 14.2 of the deed states:

“14.2 Entire Deed

This Deed is the entire agreement of the parties on the subject matter. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this Deed.”

57 Clause 4.2 of the deed relevantly states;:

“The parties acknowledge and agree that:

…

58 Hence, the terms of the agreement place no limit in time and place no obligation upon Boral to perform the deed to the extent necessary to trigger the dedication of the land to the north and south of the bridge which would be necessary for the provision of access to Moorebank in the circumstances. As Boral’s interests are adverse to those of Moorebank, Moorebank submit that Boral will delay the dedication and, at worst, the dedication will never occur.

59 Moorebank therefore submits that the consequence of the consent, if implemented, seems obvious. That is, if built, the bridge, as a structure, would landlock Moorebank’s land in the event of redevelopment of that land in view of the denial of direct access into Newbridge road by the RTA. As a consequence, an application for development by Moorebank could not satisfy adequate access considerations under s 79C.

60 Moorebank further submits that, as evidenced by the final report of Mr Coburn dated 16 April 2007, noted in par [43] above, the Council was misled into believing that it had written confirmation that Boral would dedicate the land to the Council by the end of the year. Moorebank contends that even if this written confirmation was provided, it is not binding by reason of cl 14.2 of the deed, noted in par [56] above.

Conclusions on Issue 2

61 Mr Wilson’s submission noted in sub-par [52](a) above can be considered together with his submissions noted in pars [53] and [58] to [60] above - namely, the Council failed to consider the possibility that a consequence of granting the consent is that Moorebank might never be able obtain access to its land if it were to seek to develop it for the permissible purpose of concrete recycling. In this respect the use of Moorebank’s land for the purpose of a “material recycling yard” is expressly allowed, with the consent of the Council, by the Liverpool Local Environmental Plan 1997: cl 10(13) and Sch 4.

62 I find that two of the reports to the Council were materially misleading on the question of whether access could or would be available to Moorebank‘s land. The Council had previously been advised by the RTA on 1 July 2004 of the need to remove existing access points along Newbridge Road in the event of redevelopment of Moorebank’s land: par [26] above. The Council was also told by its development assessment panel in its report of 22 November 2006 that “[r]ecyclers current access arrangements, i.e, the 10 metre access way on to Newbridge Road is insufficient for the proposed usage of the site for materials recycling”: par [36] above. The same report goes on to refer to the fact that the applicant for development consent has provided conceptual details which show that future ramps can be accommodated “at a future point in time”, and that a condition is proposed to be imposed that the bridge design is to be able to accommodate the proposed bolt on ramps. The report concluded with this statement: “Such an arrangement is unlikely to hinder access to the [Moorebank] Recyclers’ site”: par [38] above. As I will demonstrate, this statement is misleading.

63 As I have noted, the IHAP report dated 1 March 2007 recommended that the application be refused: par [40] above. However, the subsequent report of Mr Coburn of 16 April 2007, noted in par [43] above, which was the final report before the Council, departed from the IHAP recommendation and recommended approval subject to conditions. That report, insofar as it refers to access to Moorebank’s land, is also misleading. The misleading content is in the statements in the report to which I refer below and which I have emphasised.

64 The report of Mr Coburn notes that the land adjoining the road corridor, owned by Boral “is required to be dedicated to Council at the time that 480 lots are released within the Boral development under the terms of the Developer Agreement”.

65 The report then states that the bridge design provides for additional on and off ramps on either side of the bridge “at a later date”, which will provide direct access from the bridge to the Moorebank Recyclers’ property.

66 The report notes that the on and off ramps are located outside the 2(a) road reserve and within the 7(c) Environmental Protection zone, and that while the current zoning and land ownership prevents Moorebank Recyclers proceeding with on and off ramps, “there will be a time in the future, in which they will be able to access the bridge”. The report states that this is dependent on Boral dedicating the 7(c) Environmental Protection land to the Council “which has been earmarked to occur by the end of the year”.

67 Finally, the report states that Moorebank will have access to the road bridge and that this will be dependent on the timing of the dedication of the 7(c) Environmental Protection land by Boral, which adjoins the road bridge, and “while the 7(c) land is not required to be dedicated until 480 lots are released on the Boral residential site, Boral have committed … to bring forward the dedication of this land by the end of 2007”, which will then “enable the on and off ramps to be attached to the road bridge, which cannot occur now given the zoning and land ownership constraints”. Upon the 7(c) land being dedicated to the Council “the zoning constraint is removed as roads can be carried out without consent”.

68 The emphasised statements above in the report of Mr Coburn are misleading because they are, at best, half-truth. The events to which they refer may never occur. A statement may amount to a misleading statement as much by what it does not say, as well as what it expressly states: see, for example, the cases on misleading conduct under s 52 of the Trade Practice Act 1974 (Cth), such as Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 at 555 and 557. A statement which is a half-truth, such as the statements made by Mr Coburn here, is misleading: R v Kylsant [1932] 1 KB 442, Lego Australia Pty Ltd v Paraggio (1996) 52 FCR 542, Price v Elder [2000] FCA 133; (2000) 97 FCR 218 at [12].

69 The events referred to in the emphasised statements may never occur because Boral opposes to the development of a materials recycling yard on Moorebank land since it would adversely affect residential development on its own land. Boral may never release 480 lots within its development. It could stop its development at 479 lots, in which event its obligation under the developer deed to dedicate the 7(c) land to the Council would not arise. Thus, the opportunity for the provision of the on and off ramps to service Moorebank land, within the 7(c) land, may never arise. The reference in the report to “a later date”, or to the fact that “there will be a time in the future”, in which Moorebank will be able to access the bridge, are thus misleading. As noted in par [56] above, the deed comprises the entire agreement between the parties, so that any statement by Boral that it would bring forward the dedication of the land by the end of 2007 is not binding.

70 As Biscoe J noted in Sharples v Minister for Local Government [2008] NSWLEC 328 at [77], materially misleading statements have the capacity to vitiate a decision in some statutory contexts. For example, in El Cheikh v Hurstville City Council [2002] NSWCA 173; 121 LGERA 293 at [12], it was held that a public notice required by s 66(1)(a) of the EP&A Act that was misleading, was not a public notice as required by that section. In Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 it was held that a public exhibition of a draft local environmental plan, required by s 66(1)(b) of the Act, that was misleading, was not a valid public exhibition within the meaning of that section. In both El Cheikh and Castle Constructions the council’s duty to give a public notice in each case was the subject of an express statutory obligation. The question in the present case is whether the statutory context in which the misleading statements were made invalidates the Council’s decision to grant its consent.

71 The IHAP report, noted at par [42] above, refers to Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd in support of its recommendation that the development application be refused. In that case the trial judge, in considering the relationship of a proposed development to existing development on the adjoining land, had wrongly given primacy or a superior public interest to the proposed development. The Court of Appeal held, however, that the use of the adjoining land as an existing use was not to be afforded a lesser status or weight. The present case is distinguishable from Inghams Enterprises – the use of Moorebank’s land for materials recycling is a permissible use with consent (amongst others). But there is at present no such use of the land and no consent for such use.

72 In Anderson v Minister for Infrastructure, Planning and Natural Resources [2006] NSWLEC 725, (2006) 151 LGERA 229, Biscoe J held that misleading conduct which was not characterised by fraud, bad faith or the like is, at least generally, insufficient to vitiate an administrative decision. In Broad Henry v Director-General of the Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172, Preston J, the Chief Judge of the Land and Environment Court, said that the correctness or incorrectness of a conclusion reached by a decision-maker is entirely beside the question. His Honour continued at [124]:

Akpan v Minister for Immigration and Ethnic Affairs

Brunetto v Collector of Customs

73 In Akpan v Minister for Immigration & Ethnic Affairs (1982) 58 FLR 47, Sheppard J held (at 50) that the grounds of irrelevant or relevant consideration were not be equated with factual incorrectness or correctness.

74 In Brunetto v Collector of Customs (1984) 4 FCR 92, Toohey J held (at 97-98) that a wrong assessment of relevant considerations does not mean that there has been a failure to take relevant considerations into account.

75 It is settled law that there is no error of law in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 at 77, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356, Bruce v Cole (1998) 45 NSWLR 163 at 187, Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154.

76 In the present case, it cannot be said that the Council failed to take into consideration the relationship of the proposed development on the adjoining land. It clearly did so. The consequence is that although the report of Mr Coburn is misleading, the misleading statements would not vitiate the Council’s decision.

77 I am thus not persuaded that the Council’s decision to grant its consent to the development application is vitiated as a consequence of its misunderstanding of the effect upon future access to Moorebank’s land.

78 For the same reasons, I am not persuaded that the decision of the Council is vitiated as a consequence of the other factors relied upon by Mr Wilson, noted in par [52](b) to (h) above. As to sub-par (b), the Council did not need to consider how the proposed “bolt-on” ramps would be configured because they were not part of the development application. In relation to the structural adequacy of the bridge, I am satisfied that the Council took this into consideration. This is reflected in condition 45 of the development consent which requires the bridge to be built in accordance with the AS5100 - Bridge Design Code, and, as noted in par [50] above, I am satisfied by the expert evidence that this condition is adequate to allow for Moorebank’s proposed use. As to sub-par (c), the Council did not need to consider how the bridge would be connected to Brickmakers Drive because that connection was not part of the development application, but was clearly to be the subject of a separate development application. As to sub-par (d), it is not correct to say that the Council erroneously believed that a road was not a permitted use which the 7(c) zone. Although the zoning table in cl 9 of the Liverpool Local Environmental Plan 1997 shows that roads are prohibited within the zone, the fact is that cl 24 allows land adjoining a zone boundary to be developed for a purpose which is permissible in an adjoining zone. In the present case, roads are a permissible use within he adjoining 2(a) zone. The fact remains, however, that so long as Boral retains ownership of the 7(a) land, that land was not available to either the Council or Moorebank for road purposes. Moreover, even if the Council were in error in its understanding, the error will only vitiate a decision if it materially affects the decision: Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275, Parramatta City Council v Hale (1982) 47 LGRA 319 at 335. In the present case the Council’s belief, if erroneous, would not materially affect the decision. As to sub-par (e) and sub-par (f), the council was not bound to take into account these considerations and thus any failure to take them into account does not render the consent invalid: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. As Deane J stated in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 (affirmed on appeal: (1982) 42 ALR 676), the duty of a decision-maker to have regard to relevant matters does not mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that one of them was not specifically taken into account. As to sub-par (g) and sub-par (h), I am not persuaded that the Council did not take these matters into account. The council clearly considered the public interest, as evidenced by par [37] above. It also considered the provision of pedestrian and cycleway access, as illustrated by condition 32 extracted at par [86] below.

79 The Council took into consideration the matters called for under s 79C of the Act. As noted above, if it came to incorrect conclusions in the course of doing so, that does not invalidate the decision.

Issue 3: Did the development conditions run foul of the requirements in Mison?

80 The consent is dated 24 April 2007 and was subsequently modified on 25 May 2007.

81 Moorebank submits that the development consent falls foul of the requirements in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, firstly because the consent relates to construction only, and not use contrary to s 81A of the Act. In support Mr Wilson submits that the conditions of consent 5 to 11 are not conditions at all, as they do not place any conditions upon that which is permitted. Conditions 5 to 11 provide as follows:

“5. Consent is not granted nor implied to any usage of the bridge. Any usage will require separate development approval.

6. Consent is not granted nor implied to the vesting of the road bridge and associated works as public road.

7. Consent is not granted nor implied to any future usage of the road bridge as a private road that provides access to development that is not permissible within a Residential 2(a) zone.

8. Consent is not granted nor implied to any approval to the rezoning or development of adjoining land.

9. Consent is not granted nor implied to any approval of any future road layout, design or pattern on adjoining land.

10. Consent does not imply that the bridge will supply a satisfactory level of access (vehicular, cycle or pedestrian) to any future development on adjoining property.

11. Consent is not granted nor implied any future direct public road connection to the proposed bridge. ”

82 Moorebank’s second submission is that the development consent does not contain adequate conditions to allow for proposed use of the Moorebank’s land. In support, Mr Wilson refers to:

(a) The stamped and approved bridge plan attached to the development consent. On this plan, the design vehicle is a rigid truck of two axles with a length of 8.8 metres.

(b) Condition 1, which requires development to be carried out in accordance with the plans referred to in par (a) above.

(c) Condition 45 of the consent, which requires the bridge design to be certified so that it complies with AS5100 – Bridge Design Code.

(d) Conditions 5 and 7, referred to in par [81] above.

(e) Condition 14, which requires the bridge to be designed and constructed such that it is able to accommodate the access ramps as designed in concept by a specified firm of consulting engineers, Patterson Britton and Partners Pty Ltd. In contrast to the approved plan, this concept plan is for a three-axle semi-trailer, of around 15 metres in length.

(f) Evidence of the two engineers, Mr Marshall and Dr French, which indicates that a bridge could be designed in compliance with AS5100 which has a load and geometrical capacity of less than that which is required to accommodate Moorebank’s proposed use.

83 Moorebank submits that, in light of the above evidence, there were no requirements for the design and load capacity of the bridge to accommodate Moorebank’s proposed future use. Mr Wilson suggests that there has been no contemplation, beyond the approved plan in par [82](a) above, as to what the bridge might have to carry.

84 Moorebank’s third submission is that condition 78 falls short of what is required by s 80A of the EP&A Act because it does not require a construction certificate, and only requires a site assessment report. Condition 78 reads as follows:

“78. The applicant shall undertake an appropriate Site Contamination Assessment to confirm the presence of pollutants or other contaminants that represent or potentially represent a direct or indirect threat to public health and safety. The Site Contamination Assessment shall be carried out by a suitably qualified and accredited consultant or Site Auditor as defined under the provision of the Contaminated Land Management Act 1997. The works shall be in conformance to the EPA Guidelines for Consultants Reporting on Contaminated Sites and Australian Standard AS 4482.1 – 1997 Guide to the sampling and investigation of potentially contaminated soil Part 1: Non volatile and semi volatile compounds. The Report detailing the findings of the site assessment and any recommendations including remediation works shall be submitted to the Principal Certifying Authority prior to the issue of construction certificate.”

85 Moorebank’s fourth submission is that conditions 26, 27, 31, 33 and 34 leave to later consideration important matters which should have been considered prior to granting consent:

“26. The Acid Sulphate Soil Risk Map – Edition two (DLWC [Department of Land and Water Conservation] 1997) maps the site as disturbed terrain and of high probability of occurrence of acid sulphate materials within the soil profile. A preliminary assessment of the risk of exposing acid sulphate soils is required to be completed in accordance with the Acid Sulphate Soils Manual (Acid Sulphate Soil Management Advisory Committee, 1998). Appropriate control and mitigation measures are to be implemented to prevent any adverse environmental impacts from the construction and use of the bridge.

....

…

33. Details of a temporary turning head or equivalent at the intersection of the road bridge with the [Tanlane] site are to be lodged with and approved by Council or an accredited certifier, so that vehicles are able to adequately turnaround in an opposite direction. This condition is imposed given that there is no connection point on the [Tanlane] site. Details of compliance are to be provided to Council prior to the issue of a Construction Certificate. Upon connection of the road bridge with a future road on the [Tanlane] site, then the temporary turning heads shall be removed.

86 Moorebank’s fifth submission is that conditions 14 and 32 are incompatible, and leave to later consideration important matters which should have been considered. These conditions provide:

“14. The bridge is to be designed and constructed such that it is able to accommodate the access ramps ([Moorebank] Recyclers Access Option A) as designed in concept by Patterson Britton and Partners Pty Ltd.

…

32. Full details are to be shown on the concept plan of the proposed bridge that allow for pedestrian and bicycle movements on the proposed roadway. Pedestrian and bicycle movements are only required on one side of the bridge and shall be able to accommodate a combined bicycle/pedestrian path of at least 3.5m and shall be accompanied by a detailed lighting plan. Details are to be provided and written approval given by Council or an accredited certifier prior to the issue of a Construction Certificate. As a result the road bridge is to be widened from 11 metres to 12 metres and amended plans are to be lodged with Council or an accredited certifier.”

87 Mr Wilson submits that: (i) the inclusion of a pedestrian path and a detailed lighting plan, as required in condition 32, is not something which can be left for later consideration; (ii) the pedestrian path contemplated by condition 32 will need to be some 1.7 metres wider than the bridge shown in the approved plan, indicating that there may be some necessity for further concrete piles; and (iii) the requirement for pedestrian access is incompatible with the concept plan proposed by Patterson Britton and Partners Pty Ltd, as the ramps on that plan would hinder the addition of any pedestrian access way.

Conclusions on Issue 3

88 The relevant principle explained by the Court of Appeal in Mison is that if a condition imposed on a development consent will leave open the possibility that it will significantly alter the development in respect of which the application is made, then there has been no consent to the application: Mison at 737 per Preistley JA (Meagher JA concurring). Moreover, a consent must both be final and certain, and if a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the development in a fundamental respect, it is difficult to see how that consent could be regarded as final: Mison at 739-740 per Clarke JA (Meagher JA concurring).

89 Since the decision of the Court of Appeal in Mison, s 80A of the EP&A Act was enacted, which modified the Mison principle. It relevantly states:

80A Imposition of conditions

(1) Conditions—generally

A condition of development consent may be imposed if:

(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

...

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or

(g) it modifies details of the development the subject of the development application, or

...

(2) Ancillary aspects of development

A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.

(4) Conditions expressed in terms of outcomes or objectives

A consent may be granted subject to a condition expressed in a manner that identifies both of the following:

(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b) clear criteria against which achievement of the outcome or objective must be assessed.”

90 I reject Moorebank’s first submission that the consent is void because it relates to construction only and not use. That was what the development application sought. Consent was granted to that application and could only be granted to that application and not to some other application. Section 81A of the Act has no role to play in these circumstances. There is no prohibition in the Act against the granting of a consent which is limited in that way.

91 I also reject the second submission relating to the structural adequacy of the bridge. Mr Wilson submits on behalf of Moorebank that condition 45 requiring the bridge to comply with AS5100 – Bridge Design Code, enables a bridge to be constructed which has a load and geometric capacity less than that which would accommodate Moorebank’s proposed use. That condition must, however, be read with condition 14 which requires the bridge to be designed and constructed so that it is able to accommodate the access ramps designed in concept by Patterson Britton and Partners Pty Ltd (Moorebank Recyclers Access Option A). The concept plan of Patterson Britton shows a design vehicle which is described as “[Moorebank] Recyclers Service”, which is an articulated truck more than 15 metres in length. It is self-evident that if access ramps are to have the structural adequacy to accommodate such vehicles then so, too, must the bridge to which the access ramps are attached. In this respect I reject the evidence of Moorebank’s engineering expert, Mr. Marshall, to the contrary. Conditions 5 and 7 do not change this conclusion.

92 I reject the criticism of condition 78. It is a condition that is clearly allowed by s 80A noted in par [89] above and is not otherwise unlawful.

93 I reject Moorebank’s fourth submission that the identified conditions leave to later consideration important matters which should have been considered before the consent was granted. As to condition 26 and 27, the evidence shows that concrete piles to support the bridge will require that soil be excavated and the site has potentially acid sulphate soils and soils of moderate salinity. These conditions are clearly directed to the treatment of soil excavated for the concrete piles and which may contain acid sulphate soils or saline soils. There is no uncertainty or ambiguity of language in these conditions; neither do they change the development in any significant or fundamental respect. As Basten JA said in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [55], a degree of practical flexibility or imprecision may not result in invalidity. Statements to a similar effect may be found in Scott v Wollongong City Council (1992) 75 LGERA 112 at 118 (Samuels AP, Meagher and Handley JJA concurring) and in Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33 at 44 per Gleeson CJ. Conditions 26 and 27 are of this type. Moreover, condition 31 applies to physical works such as the excavation for the piling, which requires certification by the Council or an accredited certifier, the plans for which must incorporate “proposed remediation required”.

94 Neither do conditions 33 and 34 leave open the possibility that the development will be altered in a significant or fundamental respect. As I have noted, the development application was for a bridge alone, and that was the development for which the consent was granted. Conditions 33 and 34 are ancillary matters of design which are allowed by s 80A(2) of the Act.

95 Finally, I reject Moorebank’s fifth submission regarding conditions 14 and 32. The fact that the provision of the combined bicycle/pedestrian path will result in a bridge some 1.7 metres wider is, in my opinion, a matter of detail. Neither would the requirement for pedestrian access be incompatible with the concept plan for access ramps proposed by Patterson Britton. An examination of that plan shows that pedestrian access can be readily achieved across the entry/exit points of the access ramps, as at any other intersection.

Conclusion and final orders

96 For completeness I note that Moorebank’s points of claim raise allegations that certain other conditions of the consent are invalid, but these allegations were not the subject of any submissions on behalf of Moorebank. In the absence of any such submissions I am unable to discern any invalidity.

97 None of the grounds of challenge to the validity of the consent establish that the consent is invalid. It follows that the application must be dismissed with costs. The orders of the Court are:

(1) The application is dismissed.

(2) The applicant must pay the second respondent’s costs.

(3) The exhibits may be returned.

I hereby certify that the preceding 97 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

**********************

Actions

Download as PDF Download as Word Document

Citations

Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100

Most Recent Citation

Moorebank Recyclers Pty Ltd v Liverpool City Council [2013] NSWLEC 33

Cases Citing This Decision

7

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445

Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286

Tanlane v Moorebank Recyclers [2010] NSWSC 802

Cases Cited

29

Statutory Material Cited

4

Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341

Weal v Bathurst City Council [2000] NSWCA 88

CITATION:	Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100
PARTIES:	Moorebank Recyclers Pty Ltd (ACN 067 281 083) (Applicant) Liverpool City Council (First Respondent) Tanlane Pty Ltd (ACN 057 579 718) (Second Respondent) Boral Bricks Pty Ltd (ACN 082 448 342) (Third Respondent)
FILE NUMBER(S):	40748 of 2007
CORAM:	Lloyd J
KEY ISSUES:	JUDICIAL REVIEW :- local council - development consent for road bridge - validity - written consent to development application required from landowner - landowner providing written consent for particular area of land - development consent valid as landowner's intention was to consent to the development application - relevant considerations - future use of adjoining land - impact on surrounding land - misleading documents before council in relation to future use - conditions of consent - whether conditions left to later consideration matters which should have been considered
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 79C and 80A Environmental Planning and Assessment Regulation 2000 cl 49(1) and cl 115(1)(h) Liverpool Local Environmental Plan 1997 cl 9, cl 10, cl 24, Sch 4 Liverpool Local Environmental Plan 2008
CASES CITED:	Akpan v Minister for Immigration & Ethnic Affairs (1982) 58 FLR 47 Anderson v Minister for Infrastructure, Planning and Natural Resources [2006] NSWLEC 725, (2006) 151 LGERA 229 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172 Bruce v Cole (1998) 45 NSWLR 163 Brunetto v Collector of Customs (1984) 4 FCR 92 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 El Cheikh v Hurstville City Council [2002] NSWCA 173; 121 LGERA 293 Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33 Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Lego Australia Pty Ltd v Paraggio (1996) 52 FCR 542 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Parramatta City Council v Hale (1982) 47 LGRA 319 Price v Elder [2000] FCA 133; (2000) 97 FCR 218 R v Kylsant [1932] 1 KB 442 Scott v Wollongong City Council (1992) 75 LGERA 112 Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 Sharples v Minister for Local Government [2008] NSWLEC 328 Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341 Waterford v The Commonwealth (1987) 163 CLR 54
DATES OF HEARING:	11 March 2009; 12 March 2009; 13 March 2009, 27 May 2009 and 28 May 2009
DATE OF JUDGMENT:	23 July 2009
LEGAL REPRESENTATIVES:	Applicant: D P Wilson (barrister) Solicitors: Mark McDonald & Associates First Respondent: Submitting appearance Solicitors: Marsdens Law Group Second Respondent: T S Hale SC and J B Maston (barrister) Solicitors: Minter Ellison Third Respondent: Submitting appearance Solicitors: Hunt & Hunt