Neighbourhood Association DP 285249 v Watson - [2008] NSWLEC 245

No judgment structure available for this case.

Reported Decision: 162 LGERA 322

Land and Environment Court

of New South Wales

CITATION: Neighbourhood Association DP 285249 v Watson [2008] NSWLEC 245
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
FIRST APPLICANT:
Neighbourhood Association DP 285249
SECOND APPLICANT:
Neighbourhood Association DP 285433
THIRD APPLICANT:
Neighbourhood Association DP 285486
FOURTH APPLICANT:
Terry Cunnington
FIRST RESPONDENT:
Anthony Rupert Watson
SECOND RESPONDENT:
Sammy One Pty Limited

FILE NUMBER(S): 41094 of 2006

CORAM: Biscoe J

KEY ISSUES: Real Property :- Real Property :- Community titles legislation - Whether unregistered development applications and plans are incorporated in development consents referred to in registered development contracts and statutory covenants - Whether such plans form part of the development contracts - Whether continuation or completion of community scheme has become impracticable and, if not, whether community scheme should be varied - Whether specific performance should be ordered of original proprietors' obligations under development contracts and statutory covenants - Whether original proprietors in breach of development contracts - Damages for breach of development contracts.

LEGISLATION CITED: Access to Neighbouring Land Act 2000 (NSW), s 7
Community Land Development Act 1989 (NSW), preamble, ss 3(1), 3(2), 3(4), 4(1), 5, 13(1)(a), 25, 26, 31, 35, 36, 41(1), 70, Schedule 2, Schedule 3
Community Land Development Regulation 1990 (NSW), cl 39(2)
Community Land Development Regulation 2007 (NSW), cl 30
Community Land Management Act 1989 (NSW), preamble, ss 3(1), 3(2), 15, 16, 60(1)(b), 85, 106, Schedule 2 Part 1, Schedule 2 Part 3
Conveyancing Act 1919 (NSW), s 88K
Disability Discrimination Act 1992 (Cth)
Electricity Supply Act 1995 (NSW), s 72
Environmental Planning and Assessment Act 1979 (NSW), ss 83B, 121H
Interpretation Act 1987 (NSW), s 8(b)
Land and Environment Court Act 1979 (NSW), ss 20(2), 20(5), 71
Limitation Act 1969 (NSW), s 14
Local Government Act 1993 (NSW), s 68
Local Government Act 1919 (NSW), s 311
Real Property Act 1900 (NSW), s 36(11)

CASES CITED: Amber Holdings (Aust) Pty Ltd v Polona Pty Ltd [1982] 2 NSWLR 470
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64
Community Association DP 270212 v Registrar General for the State of New South Wales (2004) 62 NSWLR 25
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] A.C. 1
Council of the City of Sydney v Pink Star Entertainments Pty Ltd [2008] NSWLEC 176
Hadley v Baxendale (1854) 9 Exch 341
Hobbs v Petersham Transport Co Pty Limited (1971) 124 CLR 220
Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 85 LGERA 37
Kindimindi Investments Pty Ltd v Lane Cove Council [2005] NSWLEC 398
Loreto Normanhurst Association Inc v Hornsby Shire Council (2001) 122 LGERA 347
Mackay v Dick (1881) 6 App Cas 251
Newmont Pty Ltd v Laverton Nickel NL (1982) 44 ALR 598
Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Quinn Villages Pty Ltd v Mulherin [2006] QCA 433
Sanctuary Investments Pty Ltd v St Gregory’s Armenian School Inc [1999] ANZ Conv R 454
Secured Income Real Estate (Australia) Limited v St Martins Investments Proprietary Limited (1979) 144 CLR 596
Sheldon v McBeath (1993) Aust Torts Reports 81 – 209
Shell Company of Australia Ltd v Parramatta City Council [No 2] (1972) 27 LGRA 102
St George Bank Ltd v Indigenous Business Australia (2007) 215 FLR 79
Stebbins v Lismore City Council (1988) 64 LGRA 132
Tip Fast Pty Limited v South Sydney City Council (2002) 120 LGERA 292
Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 239 ALR 75
Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Limited [2004] NSWLEC 551
Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 156 LGERA 283
Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508
Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244

DATES OF HEARING: 28-30/04/08, 1-2/05/08, 5-7/05/08, 12-16/05/08, 19-23/05/08, 26-30/05/08, 2-5/06/08

DATE OF JUDGMENT:
27 August 2008

LEGAL REPRESENTATIVES: APPLICANTS:
Mr P. Tomasetti SC (until 22/05/08) and Mr N. Eastman
SOLICITORS:
Cosgriff Orchard Legal

RESPONDENTS:
Mr C. Leggat SC and Mr J. Young
SOLICITORS:
GDA Lawyers

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BISCOE AJ

5858/06 NEIGHBOURHOOD ASSOCIATION DP 285249 & ORS v WATSON & ORS

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

41094/06 NEIGHBOURHOOD ASSOCIATION DP 285249 & ORS v WATSON & ORS

27 August 2008

JUDGMENT

INTRODUCTION

1 HIS HONOUR: In these two closely related proceedings there are claims for variation of a community development scheme and related development contracts and also for specific performance and damages for breach of those contracts. The scheme and contracts relate to an 85 berth houseboat marina on Deep Creek. Deep Creek is a quiet, picturesque lagoon joined to the Murray River by a narrow channel. It is situated 17 kilometres by road west of the twin towns of Moama (in New South Wales) and Echuca (in Victoria).

2 One of the proceedings is in the Supreme Court. The other is in the Land and Environment Court. They have been heard together by me as an acting judge of the former and as a judge of the latter. In this way duplication of costs and judicial resources has been minimised. An order has been made that evidence in one is evidence in the other. The two proceedings are in different courts because the legislature has given exclusive jurisdiction:

Community Land Development Act 1989

Development Act

Land and Environment Court Act 1979

Community Land Management Act 1989

Management Act

OVERVIEW OF THE CASE

3 Deep Creek Marina is the subject of a community scheme and subsidiary neighbourhood schemes established under the New South Wales community titles legislation. That legislation essentially comprises two companion statutes, the Development Act and the Management Act. The legislation enables a subdivision of land which incorporates common property and offers facilities in accordance with a pre-determined theme.

The development applications and consents

4 In 1990, development application 18/90 (DA 18/90) was lodged with Murray Shire Council for a 100 berth marina as Stage 1 and a tourist complex as Stage 2 on land with an area of 243 hectares and frontages to the Murray River and Deep Creek. The land was formally described as Lot 12 in deposited plan 846348 being part of Lot 1 in deposited plan 521202, Parish of Benarca, County of Cadell. The registered proprietors and original developers of the land were Anthony Watson and Sammy One Pty Ltd (Sammy One), a company owned and controlled by Mr Watson and his wife.

5 Accompanying DA 18/90 were four plans showing the completed development including marina berths, an access track behind the eastern berths, and a public wharf. The plaintiffs place particular reliance on one of these plans, Plan 4, entitled “Detailed Landscape Masterplan”: a copy is annexure A to this judgment. The land described as a “wildlife refuge” on Plan 4, on the opposite side of Deep Creek from the development, was sometimes later called “the island” (although it is not actually an island). In 1991, the council granted consent to DA 18/90.

6 In 1992, development application 66/92 (DA 66/92) was lodged with the council for subdivision of the land under the community titles legislation in two stages. The plaintiffs place reliance on three accompanying Stage 1 subdivision plans: copies are annexures B, C and D to this judgment. These plans show that community property included, inter alia, a substantial amount of the foreshores and the whole of the waters of Deep Creek. The plaintiffs also place reliance on the accompanying Stage 2 subdivision plan: a copy is annexure E to this judgment. It shows subdivision of the developers’ residual parcel into five lots and shows essentially the same facilities as are shown on Plan 4 accompanying DA 18/90. In 1992, the council granted consent to DA 66/92.

Registration of the community plan

7 In January 1995, the developers registered a community plan, community development contract and community management statement. The community plan effected a subdivision of the land in which most of the community property shown on the plans accompanying DA 66/92 had disappeared, including most of the foreshores and waters of Deep Creek. Instead that area was shown as part of the lot owned by the developers. This gross loss of community property has led to serious access problems for houseboat mooring lot owners at the Deep Creek Marina and, ultimately, to this litigation. One sheet of the community plan as originally registered in January 1995 is annexure F to this judgment. It was subsequently amended. The community plan as registered on 16 May 2006 is annexure G to this judgment.

8 In 1995, 1997 and 1998 the developers registered three neighbourhood plans for mooring berths together with related neighbourhood development contracts and neighbourhood management statements.

Access at the Deep Creek Marina

9 Notwithstanding the disparity between the plans accompanying DA 66/92 and the registered community plan, access difficulties did not arise until about 2005. That is because access roads to the moorings physically existed over the developers’ land (now called Lot 16 and so described in these proceedings), even though they were not shown on the registered community plan. Mooring berth owners used these access roads for vehicular access. On the western side of the marina, where the foreshore is steeper, access was facilitated by several access stairs, apparently constructed by the developers, leading from the access road to the mooring berths. Also, until 2005, there was no impediment to access to the public wharf and boat ramp.

10 The developers represented orally in marketing material and in at least one contract for sale of mooring berths that the existing access roads were for use by mooring berth owners. The developers also represented that the berth owners’ access rights would be formalised in due course.

11 All this changed following reconstitution of the ownership of Lot 16 (see [28] below). The current proprietors of Lot 16 are Mr Watson, Hillington Valley Pty Ltd (Hillington) and Perricoota Boat Club Investments Pty Ltd (Perricoota Company). In or about 2005 the developers closed the access roads to the mooring berths, fenced off the public wharf and, for a time, blocked access to the boat ramp. The consequential access difficulties are examined in detail below.

Claims in the Supreme Court proceedings

12 In the Supreme Court proceedings, the plaintiffs claim that the community scheme has become impracticable, both in its continuation and its completion. This is said to be because (a) what was proposed cannot be delivered and (b) what has been delivered is not physically functional and practical. The plaintiffs seek variation of the scheme by amending the related development contracts and the community management statement under s 70 of the Development Act in order to alleviate impracticability and to provide what is said to be appropriate.

13 The alleged impracticability arises largely because of access problems in three respects:

14 The plaintiffs claim that the consents to DA 18/90 and DA 66/92 respectively incorporate those applications, including the plans accompanying each application, subject to the conditions of each consent.

15 The plaintiffs’ proposed variations involve accretions to community property to reflect the plans which accompanied DA 66/92 (annexures B to E to this judgment). These variations would convert foreshores and the waters of Deep Creek owned by the developers into community property, or at least to the extent of providing vehicular access to the moorings. The proposed accretions are shown on the plan which is annexure H to this judgment.

16 The plaintiffs’ proposed variations under s 70 of the Development Act also involve variation of the development contracts, primarily by appending a plan showing facilities, which is itself a variation of Plan 4 accompanying DA 18/90 and the Stage 2 plan accompanying DA 66/92. These proposed variations are shown on the plan which is annexure J to this judgment. The plaintiffs propose related amendments to the text of the development contracts and the community management statement.

17 There is an alternative claim for a right of vehicular access to the moorings under s 88K of the Conveyancing Act 1919 (NSW).

Claims in the Land and Environment Court proceedings

18 In the Land and Environment Court proceedings the plaintiffs allege that the defendants are in breach of the development contracts in respect of: (a) developing the community scheme in accordance with what was proposed; (b) providing electricity and telephone services; and (c) doing road works and sealing.

19 The plaintiffs claim specific performance of the development contracts and damages for electricity and road works already undertaken. Alternatively, they claim damages only.

20 The following plans annexed to this judgment, to which I have already referred, are essential to an understanding of the issues:

A Plan 4 accompanying DA 18/90 to which Murray Shire Council consented.

B, C and D Three Stage 1 subdivision plans accompanying DA 66/92 to which council consented.

E Stage 2 subdivision plan accompanying DA 66/92 to which council consented.

F Sheet 2 of the community plan for Community Association DP 270076 registered in January 1995.

G Additional sheet 12 of the community plan registered on 16 May 2006.

H Plaintiffs’ plan of proposed accretions to community property, pursuant to variation under s 70 of the Development Act.

J Plaintiffs’ plan of proposed facilities to be provided by the original developers to be included in community and mooring neighbourhood development contracts, pursuant to variation under s 70 of the Development Act. This shows a modification of the facilities shown on annexures A and E above, and is Schedule 2 to the plaintiffs’ Second Further Amended Statement of Claim as further amended.

THE PARTIES

21 In each of the proceedings, the plaintiffs are the owners of Lots 2, 3 and 6 (respectively, the Central, Eastern and Western Neighbourhood Associations), which are the mooring neighbourhoods, and the owner of Lots 14 and 15 (Mr Cunnington). (For ease of reference I will refer to the applicants and respondents in the Land and Environment Court proceedings as plaintiffs and defendants).

22 In the Supreme Court proceedings the defendants are the current developers and proprietors of Lot 16 (Mr Watson, Hillington and Perricoota Company), the Registrar–General, the community association, the Lot 16 mortgagee (Statewide Secured Investments Ltd), Murray Shire Council, and the owner of Lot 12 Neighbourhood Association DP 285882 which is called “Murray River’s Edge”. In the proceedings “Murray River’s Edge” was generally referred to as the “Honeyman Lot”.

23 In the Land and Environment Court proceedings the defendants are the original developers and proprietors, Mr Watson and Sammy One. They caused development consents 18/90 and 66/92 to be obtained. They caused to be registered in 1995 the community plan, community management statement and community development contract for the community association. They caused to be registered the neighbourhood plan, neighbourhood management statement and neighbourhood development contract in 1995, 1997 and 1998 for, respectively, the Central, Western and Eastern Neighbourhoods. They were the parties to the community development contract and neighbourhood development contracts under which they became bound by certain covenants, including those found in Schedule 2 to the Management Act, on which the plaintiffs rely (see [57] below).

24 The defendants other than the developers have filed submitting appearances or have not appeared or have taken no active part in the proceedings.

THE COMMUNITY ASSOCIATION AND ITS MEMBERS

25 The community association for Deep Creek Marina is Community Association DP 270076 which, under s 25 of the Development Act, was incorporated in January 1995 upon registration of community plan DP 270076. The land in this community plan has been subdivided and re-subdivided over the years. The current subdivision is indicated in the registered sheet of the community plan copied at annexure G to this judgment.

26 Currently, the community association has seven members. Three are neighbourhood associations of mooring berths (Lots 2, 3 and 6 – Lot 6 was originally Lot 4). One is a neighbourhood association whose property is under development for holiday cabins and related facilities (Lot 12, the Honeyman Lot). One is the owner of the hotel/restaurant (Lot 14). One is the owner of the supermarket (Lot 15). Finally, one is a residual development lot (Lot 16) owned by the current developers, which includes the foreshores and waters of Deep Creek, a public wharf and much more. Further details are as follows:

Lot	Member	Unit Entitlement
2	Neighbourhood Association NP DP 285249 (*Central Neighbourhood*). Registered 19 January 1995. 45 mooring berths. Neighbourhood property: 2 metre wide walkway adjoining the berths.	3,060
6	Neighbourhood Association NP DP 285433 (*Western Neighbourhood*). Registered 30 September 1997. 11 mooring berths. Neighbourhood property: 2 metre wide walkway adjoining the berths.	1,300
3	Neighbourhood Association NP DP 285486 (*Eastern Neighbourhood*). Registered 25 March 1998. 30 mooring berths. Neighbourhood property: 2 metre wide walkway adjoining the berths.	3,300
12	Neighbourhood Association NP DP 285882 known as “Murray River’s Edge” (*Honeyman Lot*). Registered 11 November 2004. Neighbourhood property: under development mainly for holiday cabins and related facilities. This neighbourhood scheme was developed by Construct Co Developments Pty Ltd (directors: Thomas Honeyman and Fiona Honeyman).	602
14	Terry Cunnington. Property: hotel/restaurant.	28
15	Terry Cunnington. Property: supermarket.	19
16	Anthony Watson, Hillington and Perricoota Company. This residual lot includes the foreshores and waters of Deep Creek, the public wharf and much more.	1,691
TOTAL:	10,000

Central”

Western

Eastern

annexure G

THE DEVELOPERS

27 It is convenient hereafter to generally refer to the owners from time to time of what is now Lot 16 as “the developers”. Lot 16 has had a number of changes in nomenclature over the years. Originally, most of it was called Lot 5.

28 In 1990 Anthony Watson and Sammy One were the registered proprietors of the subject land. Sammy One was a company owned and controlled by Mr Watson and his wife. On registration of the community plan in 1995, those original proprietors owned the largest lot in the community scheme, which was then Lot 5 (but is now mostly Lot 16). In June 2003 they transferred part of their interest in that Lot so that it was owned in equal one third shares by Mr Watson, Hillington owned by Gary and Jayne Bares, and Ozzie Erections Pty Ltd (Ozzie) owned by Mr Steven “Ozzie” Robertson. By transfer dated 9 October 2006 Ozzie sold its share to Perricoota Company owned by Mr Paul Jarman. Thus, the current developers and proprietors of Lot 16 are Mr Watson, Hillington and Perricoota Company.

29 Mr and Mrs Bares have been associated with Deep Creek Marina since 1997 when Accredited Aged Care Services Pty Ltd, the sole director of which was Mrs Bares, became the first buyer of seven mooring lots in the Western Neighbourhood. That company was the trustee for Mr Bares’ superannuation fund. It was he who made the decision to purchase the moorings. The trustee leased out six of the moorings and Mr Bares used the seventh. Commencing in May 2002, it sold its moorings at a substantial gross profit. Throughout the five years of its ownership one could drive a car to the moorings and access them via stairs. It was only after they commenced to be sold that Mr Bares took the position that mooring owners were not entitled to use the access roads and, later, with the other developers, closed the access roads.

30 Mr Jarman has been associated with Deep Creek Marina since 2000-2001 when he worked for Mr and Mrs Watson as the manager of their hotel/restaurant on what is now Lot 14. After a break he then worked for Mr and Mrs O’Brien, the new owners of the restaurant/bar and supermarket on, respectively, Lots 14 and 15, from October 2004 to January 2005. From 2005 he has been employed by the developers as their site manager and to represent them at community association meetings.

31 In 2002 the developers began to use a company which has had several names. At one time it was called DC Marina Pty Ltd. In 2004 its name was changed to Deep Creek Marina Pty Ltd. From December 2002 its directors and secretaries were Messrs Watson, Robertson and Bares and its shareholders were Hillington, Ozzie and Perricoota Investments Pty Ltd. Currently, it appears, its directors are Mr Watson and Mr Bares and its shareholders are Mr Watson and Hillington. The name of this company was sometimes erroneously used in communications as if it were the owner of Lot 16. In fact it was a service company for the developers.

32 By a transfer stamped in April 2002, Mr and Mrs Watson transferred to Hillington a one half share in land known as Lot 23 immediately to the east on Deep Creek. It has been developed as a houseboat marina development called Perricoota Boat Club: see [129] – [130] below. The moorings at Lot 23 have good pedestrian and vehicle access. There is a one metre wide concrete path adjacent to them. Then there is approximately two metres of grass. Then there is a sealed vehicular access road approximately 2.4 metres wide. Houseboats moored at the Lot 23 marina have to cross the waters at the Deep Creek Marina in order to reach the Murray River. Lot 23 enjoys the benefit of easements of access of variable width over those waters as well as over Lot 16 land just to the north of the upper access track to the eastern moorings.

33 The developers wish to develop Lots 16 and 23 into a very large residential and tourist development and are seeking to have the land rezoned for residential purposes.

THE COMMUNITY TITLES LEGISLATION

34 The Deep Creek Marina may have been the first houseboat marina in New South Wales to come under the community titles legislation, which essentially comprises the Development Act and the Management Act. This legislation commenced on 1 August 1990, a little over two months after DA 18/90 for development of Deep Creek Marina was lodged with the local council. Following council consent to that application in 1991, in 1992 DA 66/92 was made to the council for subdivision to bring the land under the community titles legislation. The council approved this application in 1992: see [79] – [93] below.

35 The concept of community title, its historical context and potential use, as well as the general scheme of the community titles legislation, were described in the Second Reading Speech by the Minister for Natural Resources, as follows:

…Generally known as the community titles legislation, the bills will introduce a new form of land subdivision in New South Wales and will permit greater innovation in subdivision design and greater flexibility in residential, commercial and industrial development. So that honourable members will appreciate the significance of the legislation I should remind them of some of the milestones preceding the bills. In 1961 the Parliament of New South Wales approved legislation permitting titles to be issued evidencing ownership of flats by enabling land to be subdivided into strata lots.

Prior to 1961 the only way of subdividing land was the conventional method, creating blocks used mainly for freestanding cottages for separate occupation. The concept of strata title gained widespread acceptance and encouraged the development of less traditional options for residential accommodation. The 1961 legislation had a number of deficiencies and in 1973 it was replaced by the Strata Titles Act, which continues to function as the operative legislation for all strata-based developments. The original intention of the strata legislation was to permit the strata subdivision of completed buildings of at least two storeys. Despite this intention, since the introduction of the legislation developers have been looking for ways to use it to accommodate types of development it was never designed to permit.

An ever-growing shortage of land available for residential occupation has discouraged developers from employing the traditional method of subdividing land into a grid pattern of rectangular blocks fronting a public road. There has been also a demonstrated demand for developments designed around a theme, such as retirement villages, tourist resorts, industrial parks and sporting complexes. As a consequence there was a clear need to devise an additional means of subdividing land which would combine elements of both conventional and strata subdivision and introduce the context of shared communal property into a land subdivision. The aim of the four bills to be considered today is, therefore, to introduce that much needed alternative system of land subdivision, which will be as innovative today as the strata title legislation was in 1961. The system proposed will enable a subdivision of land incorporating common property which may be developed in stages in accordance with a pre-determined theme.

…[T]he model proposed by this legislation offers sufficient flexibility to allow it to be used for low or medium density residential projects; large, mixed-use developments; small urban schemes; rural communes; and theme development specially designed to accommodate the specific needs of special interest groups. The legislation has been divided into two principal bills – the Community Land Development Bill, covering the procedure for establishing a scheme, and the Community Land Management Bill, governing the day-to-day management of schemes and the resolution of disputes. The remaining two bills make associated amendments to the Strata Titles Act and a number of other Acts.

The Community Land Development Bill will permit the creation in subdivisions of shared land known as association property. Individuals purchasing into a scheme will receive a separate title to their lots, which may or may not contain improvements, and will acquire an interest in the association property. Because amenities can be shared, residents will be able to acquire the use of facilities such as sporting and recreational complexes which would have been prohibitively expensive for an individual homeowner. The common elements and communal facilities within a scheme will be shared and managed by the participants themselves. Management will be controlled by a body corporate, referred to in the legislation as an association, which will be constituted on registration of a plan and will be made up of the individual lot owners. The legislation has been designed to enable a development to be completed as a staged or non-staged scheme. Allowing developments to proceed in stages will make it possible for savings in initial development costs, as one stage can be used to finance the construction of later stages. With a reduction in initial development costs, purchase prices should be correspondingly reduced.

The Community Land Management Bill will complement this development flexibility by providing a range of options for the management structure which may operate within the scheme. When a staged scheme is embarked upon, the community will have two tiers of management. However, where the community is sufficiently large or complex, the developer may elect to interpose a further tier and thereby create three levels of management. Where it is not proposed to develop the land in stages, only one level of management—known as a neighbourhood association—will be created. An important feature of the legislation is the opportunity it will provide for a development or organizational theme to be introduced throughout a scheme. For example, a theme may simply be used to establish a uniform architectural or landscaped design or a development may be designed around a sporting theme, offering facilities such as a golf course or equestrian activities. Safeguards have been built into the legislation to ensure that a theme does not impose restrictions based on race or creed or on ethnic or socioeconomic groupings.

To ensure that purchasers are made aware of any matters that will affect the day-to-day maintenance of a community, a developer will be required to prepare a management statement to accompany each stage of the scheme. This statement will bind the developer and the individual owners buying into a scheme and will be available for public inspection. The statement will set out the rules governing the use of association property including any access ways, and the use of any facilities which may be erected on the communal land. It will provide details of how services such as water and electricity are to be maintained and the insurance cover taken out by the association.

It is envisaged that large developments may be constructed over many years, and with changes in economic and social conditions likely during the period, it would not be appropriate to compel detailed disclosures to be made at the time the community plan initiating the project is registered. However, to balance the need to safeguard the interests of people buying into such a scheme against the danger of shackling developers to a static project indefinitely, at each stage of a community scheme the developer will be obliged to make binding promises about the facilities to be provided within that stage. This document will be known as a development contract and will be lodged with each neighbourhood plan to place on public record a description of the development, any theme proposed and details of amenities to be provided. The role of local councils in approving and overseeing development will be preserved by this legislation. Both the management statement and development contract will be submitted to the local council for approval with the relevant plans. Where people are living closely in a community, conflicts will inevitably arise.

The Community Land Management Bill will establish procedures designed to simplify the running of an association and to avoid disputes by regulating the calling and holding of meetings and the keeping of records and accounts. A community schemes board is to be constituted to hear disputes and a community schemes commissioner will be established. The role and powers of the commissioner and board will be similar to those of the Strata Titles Commissioner and Strata Titles Board. Some amendment to the Strata Titles Act is required to ensure that strata schemes forming part of a community scheme are subject to the by-laws of the community association and the provisions of the community titles legislation. This is done in the Strata Titles (Community Land) Amendment Bill. In addition, the Miscellaneous Acts (Community Land) Amendment Bill will amend various Acts to ensure that, where appropriate, reference is made to the proposed community titles legislation.

The legislation proposed marks a significant advance in land development. By offering a further means of subdivision, traditional concepts of land development can give way to more imaginative and sympathetic approaches to land use. The legislation will promote higher-density housing without loss of amenity and will encourage cheaper accommodation by reducing initial development costs. Commercial development will also be advantaged by providing an appropriate legislative base for projects such as tourist complexes and industrial parks.

36 One of the passages emphasised above refers to the developer, at each stage of a community scheme, being “obliged to make binding promises about the facilities to be provided within that stage” in a neighbourhood development contract. There is also provision in the legislation for the developer, if it wishes to do so, to register at the outset a community development contract to which statutory covenants will attach about developing the land in accordance with the development contract and development consent: Development Act s 26 and Schedule 2 to the Management Act: see [47] and [57] below. Such a community development contract was registered in the present case. It and the development consents are at the heart of these proceedings.

37 The preamble to the Development Act states that it is an Act “to facilitate the subdivision and development of land with shared property; and for other purposes”. The object of the Development Act is stated in s 4(1) as follows:

Strata Schemes (Freehold Development) Act 1973

38 Section 3(2) provides:

Real Property Act 1900

39 “Community scheme” is defined in s 3(1) of the Development Act as follows:

Community Land Management Act 1989

Strata Schemes (Freehold Development) Act 1973

40 In the present case, there was a registered community plan and three registered subsidiary neighbourhood plans, but no precinct plan.

41 “Community plan”, “neighbourhood plan” and “development contract” are key concepts and are defined in s 3(1) of the Development Act as follows:

community plan means a plan for the subdivision of land into 2 or more community development lots and 1 other lot that is community property, whether or not the plan includes land that, on registration of the plan, would be dedicated as a public road, a public reserve or a drainage reserve.

neighbourhood plan means a plan (other than a community plan, a precinct plan or a strata plan) for the subdivision of land into 2 or more lots for separate occupation or disposition and 1 other lot that is neighbourhood property, whether or not the plan includes land that, on registration of the plan, would be dedicated as a public road, a public reserve or a drainage reserve.

development

contract

42 Other relevant definitions in s 3(1) of the Development Act include the following:

community association means the corporation that:
(a) is constituted by section 25 on the registration of a community plan, and
(b) is established as a community association by section 5 of the Community Land Management Act 1989 .

community development lot means a lot in a community plan that is not community property, a public reserve or a drainage reserve and is not land that has become subject to a subsidiary scheme or a lot that has been severed from the community scheme.

community management statement means a statement that is registered with a community plan as a statement of the by-laws and other particulars governing participation in the community scheme.

community parcel means land the subject of a community scheme.

community property means the lot shown in a community plan as community property.

developer means:

(a) in relation to a community scheme—the person who, for the time being, is the registered proprietor of a community development lot in the community plan, or
(b) in relation to a precinct scheme—the person who, for the time being, is the registered proprietor of a precinct development lot in the precinct plan, or
(c) in relation to a neighbourhood scheme—the original proprietor of the neighbourhood parcel.

development , in relation to land, means:

(a) the erection of a building on the land, or
(b) the carrying out of a work in, on, under or over the land, or
(c) the use of the land or of a building or work on the land, or
(d) the subdivision of the land, not excluded by regulations under the Environmental Planning and Assessment Act 1979 from the definition of development in that Act.

development application means an application under Division 1 of Part 4 of the Environmental Planning and Assessment Act 1979 for consent to carry out development.

development consent means consent under Division 1 of Part 4 of the Environmental Planning and Assessment Act 1979 to carry out development.

development lot means a community development lot or a precinct development lot that has not been severed under section 15 from the applicable scheme.

neighbourhood association means the corporation that:

(a) is constituted by section 25 on the registration of a neighbourhood plan, and
(b) is established as a neighbourhood association by section 7 of the Community Land Management Act 1989 .

neighbourhood lot means land that is a lot in a neighbourhood plan but is not neighbourhood property, a public reserve or a drainage reserve.

neighbourhood property means the lot shown in a neighbourhood plan as neighbourhood property.

neighbourhood scheme means:

(a) the manner of subdivision of land by a neighbourhood plan, and
(b) the proposals in any related development contract, and
(c) the rights conferred, and the obligations imposed, by or under this Act and the Community Land Management Act 1989 in relation to the neighbourhood association, its neighbourhood property and the proprietors and other persons having interests in, or occupying, the neighbourhood lots.

original proprietor , in relation to land, means the registered proprietor in fee simple of the land at the time of registration of a community plan, precinct plan or neighbourhood plan subdividing the land.

scheme means a community scheme, a precinct scheme, a neighbourhood scheme or a strata scheme.

staged scheme means a community scheme or precinct scheme developed in stages.

subsidiary scheme means

43 Section 3(4) of the Development Act provides:

A reference in this Act to a development consent, development contract, community management statement, precinct management statement or neighbourhood management statement includes a reference to the consent, contract or statement as from time to time modified or amended in accordance with this Act.

44 Section 5 of the Development Act provides for subdivision of land by the registration of a community plan as a deposited plan and permits registration of a development contract for the community scheme, as follows:

5 Community plan

Community Land Management Act 1989

45 In the present case, development lots were subdivided by neighbourhood plans. This is provided for in s 13(1)(a) of the Development Act:

13 Subdivision of a development lot by a neighbourhood plan or strata plan

(a) by a neighbourhood plan registered as a deposited plan…

46 Section 25 provides for incorporation of a community or neighbourhood association upon registration of a related community or neighbourhood plan:

25 Incorporation of associations

Community Association D.P. No

Neighbourhood Association D.P. No

Community Land Management Act 1989

47 A community development contract is optional but a neighbourhood development contract is mandatory. In that regard, section 26 provides as follows:

26 Development contract

48 Schedule 2 to the Development Act, prescribes matters to be included in a development contract. It relevantly provides:

Schedule 2 Development contracts

( Sections 5, 9, 13, 18, 26)

1 Matters to be included

Unless clause 3 applies, a development contract that relates to a neighbourhood scheme (whether or not it is part of a community scheme) must consist of instruments, plans and drawings that are prepared in the approved form and include, but need not be limited to:
(a) a description of the land to be developed under the scheme, and
(b) a description of the amenities proposed to be provided, and
(c) a description of the basic architectural design and landscaping under the scheme and any theme on which the scheme is based, and
(d) a simple pictorial representation of the anticipated appearance of the completed development, and
(e) any other matter prescribed by the regulations.

2 Inconvenience and damage

Unless clause 3 applies, a development contract for any scheme (whether or not it is a neighbourhood scheme) must include:
(a) details of access and construction zones, working hours and any related rights over association property, and
(b) an undertaking by the developer not to cause unreasonable inconvenience to proprietors of lots in the scheme and to repair without delay any damage caused to association property or common property by development activities, and
(c) such other matters as may be prescribed.

…

4 Warning to be displayed

49 It can be seen that cl 1(d) of Schedule 2 requires a “simple pictorial representation of the anticipated appearance of the completed development” to be included in a neighbourhood development contract. Plan 4 in DA 18/90 or the Stage 2 plan in DA 66/92 (annexures A and E to this judgment) would satisfy that requirement. However, in the present case no pictorial representation was included in the neighbourhood development contracts. There is no statutory requirement for a pictorial representation to be included in a community development contract.

50 Clause 39(2) of the Community Land Development Regulation 1990 (NSW) (now repealed and replaced by cl 30 of the Community Land Development Regulation 2007 (NSW)) prescribed that, in addition to containing the matters referred to in Schedule 2 to the Development Act, all development contracts must prominently display on the first page a warning in a prescribed form as follows:

WARNING

(1) This contract contains details of a *neighbourhood /* precinct/*community scheme which is proposed to be developed on the land described in it. Interested persons are advised that the proposed scheme may be varied, but only in accordance with section 16 of the Community Land Management Act 1989.
*If the scheme forms part of a staged development, interested persons are advised of the possibility that the scheme may not be completed and may be terminated by Order of the Supreme Court.
NOTE: Delete if not applicable.

(2) This contract should not be considered alone, but in conjunction with the results of the searches and inquiries normally made in respect of a lot in the scheme concerned. Attention is drawn in particular to the management statement registered at the Land Titles Office with this contract, which statement sets out the management rules governing the scheme and provides details of the rights and obligations of lot owners under the scheme.

51 Section 31 of the Development Act provides for vesting of association property in an association upon registration of a relevant association plan:

31 Vesting of association property

52 Section 35 provides for easements:

35 Creation, release and variation of easements or restrictions

(a) execute a dealing creating an easement which burdens its community property or a restriction on the use of land or a positive covenant which burdens its community property or the whole of the community parcel…

53 Section 70 of the Development Act empowers the Supreme Court to vary a development contract or terminate a staged scheme where completion of a staged scheme has become impracticable, and to vary (or terminate) a scheme where its continuation has become impracticable:

70 Variation or termination of scheme by Supreme Court

Conveyancing Act 1919

54 It can be seen the Court’s discretionary power under s 70 is enlivened if the Court is satisfied that completion of a staged scheme or continuation of a scheme has become impracticable. Continuation of a scheme may have become impracticable because a problem, inherent in the terms of the scheme itself, is eventually seen as inevitably producing impracticability during the life of the scheme. In Community Association DP 270212 v Registrar General for the State of New South Wales (2004) 62 NSWLR 25 at [19] – [22] and [28] Palmer J held:

In my opinion, s 70(1) does not require the applicant for termination of a scheme to prove that continuation of the scheme is impracticable in the sense of being totally impossible; rather, the applicant must show that in the particular circumstances of the case the scheme cannot continue as a matter of practicality. There is well established authority for construing impracticable in this way.

In Re El Sombrero Ltd [1958] 1 Ch 900, the applicant sought an order convening a meeting of a company under a provision of the Companies Act 1948 (UK) which enabled the court to make such an order if for any reason it is impracticable to call a meeting of the company in any manner in which meetings of that company may be called .

impracticable

impossible

impracticable

In Thornley v Heffernan (McLelland J, 12 September 1995, unreported) McLelland J had to consider the meaning of a clause in the constitution of the Liberal Party of Australia which provided for what could be done if ... time or circumstance ... make it impracticable to hold a meeting . His Honour, referring to Re El Sombrero Ltd , said (at 8): The expression impracticable in [the relevant clause] does not mean impossible . It directs attention to considerations of a practical rather than a theoretical nature arising out of the particular circumstances ... . See also Re South British Insurance Co Ltd (1980) CLC (34,419) 940-664.

…

has become impracticable

has

become impracticable

55 The preamble to the Management Act states that it is an Act “to provide for the management of community schemes, precinct schemes and neighbourhood schemes established by the subdivision of land under the Community Land Development Act 1989; and for other purposes”. The relevant definitions in s 3(1) are to the same effect as those in the Development Act, and s 3(2) likewise provides:

Real Property Act 1900

56 Sections 15 and 16 of the Management Act relevantly provide:

15 Binding effect of development contract

(1) If a development contract is registered with a community plan, it has effect as if it included an agreement under seal with covenants to the effect of those set out in Part 1 of Schedule 2.
…
(3) The development contract registered with a neighbourhood plan has effect as if it included an agreement under seal with covenants to the effect of those set out in Part 3 of Schedule 2.
(4) Any attempt to exclude, modify or restrict the operation of the covenants is void.
…

16 Amendment of development contract with approval of association

57 The plaintiffs rely on Part 1 of Schedule 2 to the Management Act which prescribes the following important covenants in a community development contract lodged with a community plan:

Part 1 Community schemes

1 Covenant by original proprietor—community scheme

covenants

that the land will be developed in accordance with the development contract and the development consent.

2 Covenants by subsidiary bodies and subsequent proprietors—community scheme

The:
(a) subsidiary bodies, and
(b) subsequent proprietors,
under a community scheme covenant jointly, and each of them covenants severally, with the original proprietor of the land the subject of the community scheme that the original proprietor will be permitted to develop the land in accordance with the development contract and the development consent.

58 Mr Jarman in cross-examination indicated that his solicitor who acted on the conveyance of the interest in Lot 16 to Perricoota Company “sort of” made him aware, during the conveyance, of the covenant in cl 2 of Part 1.

59 Although it is not mandatory to lodge a community development contract, in the present case one was lodged with the community plan. It was executed by the original proprietors, Mr Watson and Sammy One. Under s 15 that contract contains the covenants in Part 1 of Schedule 2 to the Management Act. Therefore, the original proprietors, Mr Watson and Sammy One, covenanted that the land would be developed in accordance with the development contract and “the development consent”, and the subsequent proprietors – relevantly, Hillington and Perricoota Company – covenanted that they will permit the original proprietors to do so.

60 In the present case, there is a question as to what is the “development consent” referred to in cl 1 of Schedule 2 Part 1 to the Management Act. Generally, it may be anticipated that there will only be one development consent which brings land under the community titles legislation, providing both for subdivision and proposed facilities for the community scheme. In the present case, the community titles legislation commenced about two months after the original DA 18/90 was lodged. Plan 4 accompanying that DA showed proposed facilities. In 1992, DA 66/92 was lodged to effect a subdivision which would bring the land under the community titles legislation. The Stage 2 subdivision plan showed essentially the same facilities as had been shown on Plan 4 accompanying DA 18/90. Hence, in the present case there are two relevant development consents.

61 The plaintiffs submit that under their statutory covenant the original proprietors covenanted to develop the land in accordance with both consents — or at least consent 66/92 — including the plans in the development applications to which the consents related (annexures A to E to this judgment).

62 The mandatory neighbourhood development contract was registered with each of the mooring berth neighbourhood plans. Under s 15(3), each of those contracts contain the covenants found in Part 3 of Schedule 2 to the Management Act. These statutory covenants in a neighbourhood development contract are as follows:

Part 3 Neighbourhood schemes

4 Covenant by original proprietor—neighbourhood scheme

Under the agreement included by section 15 in the development contract lodged with a neighbourhood plan, the original proprietor of the land the subject of the neighbourhood scheme covenants:
(a) with the neighbourhood association, and
(b) with the subsequent proprietors jointly and with each of them severally,
that the land will be developed in accordance with the development contract and the development consent.

5 Covenants by neighbourhood associations and subsequent proprietors

63 On 23 May 1990, upon the instructions of Mr Watson and Sammy One, Mr B Mitsch of Veitch and Mitsch, consulting town planners, lodged DA 18/90 with Murray Shire Council. The application was for a 100 berth marina as Stage 1 and a tourist complex as Stage 2. It described the development for which development consent was sought as follows:

Marina – initially for 30 river craft with extension to 100 craft Tourist development complex as stage 2.

64 The application stated that the development involved the erection of buildings and that, when erected, their proposed use would be “managers residence – boat storage – tourist accommodation”.

65 An environmental impact statement (EIS) accompanied the development application. The EIS included a concept drawing, which showed the proposed development, including houseboat moorings along the northern side of Deep Creek, a speed boat ramp, houseboat ramp, supply jetty, motel, restaurant, units, tennis court, swimming pool, houseboat service centre, manager’s residence, office and other facilities. The significance of the manager’s residence was emphasised in paragraph 2.5.2 of the EIS, which stated:

A manager’s residence will be incorporated into the project to ensure that day to day activities on the site are carried out in an orderly and environmentally safe manner.

66 In June 1991 a supplementary environmental impact statement (SEIS) was lodged with the council. It included a location map and four plans:

Existing Conditions Plan

Landscape Masterplan

Refer to Detailed Landscape Masterplan for enlargement of the central area

Stage One Development Plan

Detailed Landscape Masterplan

67 Plan 4 (annexure A to this judgment) shows, among other things, mooring berths, a public wharf, a boat ramp, a manager’s residence and a central carpark with (it seems) some 60 car parking spaces. It shows an “access track” roughly parallel with, and some distance to the north of, the eastern moorings with three paths leading from it to those moorings. The position of this “access track” appears to be slightly different from the existing upper vehicular access track to the eastern moorings. There also exists a lower vehicular access track to the eastern moorings, close to and roughly parallel with them, but this lower access track is not shown on Plan 4.

68 The SEIS indicated as follows that Plans 2 and 3 were the “masterplan” for the marina development and that Plan 4 showed Stage 1 of the development:

…[The developers] propose a carefully staged development, to include a 100 houseboat marina with full service facilities, cabin style family accommodation, motel and restaurant facilities.

The existing conditions of the proposed development site are illustrated on Plan 1.

The Masterplan for the marina development is shown on Plans 2 and 3. Plan 2 shows the whole development site including the marina’s relationship to the lagoon and Murray River, the proposed road access, fencing of the island and recycled-water woodlot. Plan 3 illustrates the detailed masterplan for the development, showing mooring sites, boat ramp and jetty, kiosk, cabin and motel accommodation, sewage pump out treatment facilities, fuel supply location, restaurant, carparks, tracks and roads.

Stage One of the development will see the construction of the marina facilities. This includes 100 houseboat moorings, kiosk, sewage pump out and fuel supply facilities, manager’s residence, carpark, dry storage area and associated storage and maintenance structures. Stage One of the marina development is shown on Plan 4. Stage One will be implemented over a 12 month period to be completed by December 1992 and can be divided into 4 phases. The first phase will commence in September and will include excavation of the creek, entrance, construction of 30 moorings and associated earthworks, establishing gravel entrance roads and sewage system, power and water supply, fencing, stormwater retention wetland and site planting.

During Phase 2, all of the buildings associated with Stage One, a further 30 moorings and houseboat hardstand area will be constructed and the fuel supply installed.

During Phase 3, the winter months, there will be no construction.

69 Paragraph 4.2 of the SEIS stated that the Landscape Masterplan (Plan 2) showed the main features of the proposed marina and associated facilities:

4.2 THE MARINA DEVELOPMENT

70 Also enclosed with the SEIS was a large scale map entitled “Map 1: Location Map”. It showed a large area on both sides of the Murray River with a relatively small shaded part marked “Deep Creek Proposed Marina”.

71 The SEIS addressed the public components of the proposal, including the public wharf, in paragraph 4.1.6:

4.1.6 The Department of Conservation and Environment raises the issue of the provision of a public component in the development of such facilities as the proposed marina.

While the main objective of the marina proposal (as encapsulated in the Stage 1 Development Plan) is the provision of mooring and associated facilities for houseboats, there is also provision for public components in the proposal. It is envisaged that the general public will have access to the restaurant, motel and cabin components of the development, the kiosk, wharf area, picnic facilities and public conveniences and to the area to the east of the creek which is to be established as a native flora and fauna area with access provided by canoes or rowing boats.

72 Paragraph 4.2.20 addressed the sealing of the main access road and the surfaces of other roads and carparks as follows:

The main access road into the site will be sealed with asphalt and 6.2 metres in width. Access roads to the restaurant and public wharf will also be asphalt sealed. It is proposed that all other roads, and the carparks and houseboat storage area be surfaced with gravel. It is envisaged that these gravel surfaces will fit more comfortably into the rural landscape character of the development while proving satisfactory for access and storage purposes.

73 Paragraph 4.4 noted that the NSW State Pollution Control Commission’s main area of concern related to the “marina’s likely impact on water quality of the Murray River and a proper effluent management plan for the treatment and disposal of all … effluent from the complex”.

74 On 10 September 1991, the council’s Health and Building Surveyor submitted a Special Report to the ordinary meeting of Murray Shire Council. It described the application as being for the following development:

Stage 1 is proposed to include excavation of the creek entrance, construction of 30 moorings and associated earthworks, gravel entrance road, sewerage system, power and water supply, fencing, stormwater retention wetland and site planting.

Stage 2 a further 30 mooring sites and houseboat hardstand area and fuel supply installed.

Stage 3 the remaining 40 mooring sites will be constructed, roads will be surfaced and site planting.

Development consent

75 At a meeting on 10 September 1991, Murray Shire Council conditionally approved DA 18/90. The notice of determination was signed by the Shire Clerk on 12 September 1991. The notice stated that the conditions of consent were “as per attached letter”. The attached letter was dated 12 September 1991. In the letter the council notified Mr Mitsch that it had granted development consent and set out the conditions of approval.

76 It is necessary to pay close attention to the terms of the notice and the letter because there is an issue of construction about whether the consent incorporated the terms of the development application, particularly the enclosed plans, as the plaintiffs contend. The notice, after identifying Mr Mitsch as the applicant in respect of DA 18/90, stated:

PURSUANT TO SECTION 92 OF THE ACT NOTICE IS HEREBY GIVEN OF THE DETERMINATION BY CONSENT AUTHORITY OF THE DEVELOPMENT APPLICATION

NO: 18/90 RELATING TO THE LAND DESCRIBED AS FOLLOWS:
PART PORTION 19, PARISH OF BENARCA

~~(a) GRANTING OF CONSENT UNCONDITIONALLY;~~

~~(c) REFUSING OF CONSENT.~~

AS PER ATTACHED LETTER.

77 The terms of the attached letter dated 12 September 1991 from the council to Mr Mitsch bear on the issue of whether the development application, particularly the enclosed plans, forms part of the development consent. The letter stated:

Development Consent 18/90
Deep Creek Marina and Tourist Development
Part Portion 19, Parish of Benarca

Council resolved at the meeting of 10th September, 1991 to grant development consent for the abovementioned Marina and tourist development subject to the following conditions:-

Stage 1

2. The sewerage system shall be installed to the requirements of the State Pollution Control Commission.

3. Gravel roads shall be constructed to a design and standard approved by the Shire Engineer.

Stage 2
4. The houseboat storage area shall be surfaced with crushed rock and be screened from the main road by the planting of suitable screens of advanced trees.

5. The fuel supplies shall be installed to the requirements of the Dangerous Goods Branch of the Department of Labour and Industry. Bund walls shall be provided around fuel storage areas.

6. The access road shall be surfaced with bitumen and the intersection with the main road shall be constructed to a standard required by the Traffic Committee.

General
7. Water testing as specified by Council’s Health Surveyor shall be carried out in Deep creek on a monthly basis and on the sewage treatment plant on a half yearly basis. The results of these tests shall be forwarded to Council.

8. Water quality within the Marina shall be maintained to a base standard which will be a standard set by water sampling before work on the Marina commences.

9. Approval under Section 21D of the Soil Conservation Act shall be obtained for removal or pruning of any tree within 20 metres of the bank of the river.

10. Approval shall be obtained from the Department of Water Resources for any excavation works proposed to the River bank and the boat ramp.

11. A potable water supply shall be provided for the motel, cabins, restaurant and kiosk.

12. Buildings shall not be constructed nearer than 60 metres from the bank of the River or Deep Creek.

13. Internal roads and parking areas shall be sealed with bitumen when restaurant, motel and cabins are developed.

14. Houseboats shall not be occupied for more than three consecutive days while moored within the Marina.

15. The destruction of any tree not being permitted in the proposed wild life refuge area.

16. All buildings to be finished in a colour that blends into the surrounding landscape.

17. One sign only of an approved size being permitted on the entrance to the development.

18. Moorings within the Marina shall be restricted to the area shown on the map in the supplementary Environmental Impact Statement.

19. Access to the sewage treatment works shall be from within the property and a separate entrance to this facility shall not be permitted from the main road.

20. Stock shall be fenced off from Deep Creek.

The reasons for the imposition of the conditions are sit [sic] out as follows:-

78 In cross-examination Mr Watson agreed that this development consent included consent to Plan 4. I do not consider that his view is relevant to the construction issue although it may be relevant to discretionary relief if the case reaches that stage.

DEVELOPMENT CONSENT 66/92
Development application

79 On 7 October 1992, Mr Mitsch lodged DA 66/92 which described the development for which consent was sought as: “Community title subdivision to create 1 community scheme and 2 two neighbourhood schemes”. The consent of the owners, Mr Watson and Sammy One, appeared on the application.

80 Accompanying DA 66/92 was a letter from Mr Mitsch dated 7 October 1992. The letter explained that consent was sought to a subdivision in two stages, to be effected under the terms of the new community title legislation, involving a community association and neighbourhood associations.

81 The first stage was described in Mr Mitsch’s letter as follows:

82 The second stage was described in Mr Mitsch’s letter as follows:

This is the residue parcel and is designed to be further subdivided into neighbourhood lots to comprise the following:

Neighbourhood Lot 1 will comprised [sic] the open space consisting of the wildlife refuge on the island and the Murray River Foreshore setback Area.

Neighbourhood Lot 2 will incorporate the Motel Unit and the Restaurant area.

Neighbourhood Lot 4 will incorporate the holiday cabins, tennis court and swimming pools.

83 Mr Mitsch’s letter explained that:

Each stage of the development involves the incorporation of a association, i.e community association for the overall development and neighbourhood associations for the further subdivisions. These associations are controlled by the appropriate Development Contract and a Management Statement. The Development Contracts and Management Statements form part of the title to the individual Lots and are lodged at the Land Titles Office with the subdivision plan. They are binding on not only the proprietors of the land but also successors in title. Both Development Contract and Management Statement are approved by Council. The Development Contract cannot be varied except with Councils consent.

84 His letter referred to access as follows:

The access way to the site will be part of the community association property and will be established as a private access way. This remains vested in the community association which is responsible for the maintenance and upkeep of that facility. A private access way allows the community association to control and limit its use to those members of the association and their guests.

85 The letter enclosed drafts of a community management statement, community development contract, neighbourhood management statement and neighbourhood development contract.

86 A “Subdivision Outline”, which formed part of DA 66/92, included the following description:

1. COMMUNITY SUBDIVISION

LOT 1: Association Property

LOTS 2-11 Development lots;

To be subdivided into individual berths by neighbourhood plans.

LOT 12: Development lot;

Further development for Marina Complex in accordance with Development Contract.

2. NEIGHBOURHOOD SUBDIVISIONS

LOT 2-12 inclusive:

LOT 2 Motel Units and Restaurant

LOT 3 Managers Residence
Houseboat Storage
Houseboat Maintenance

553 Clause 1.2.1 of the development contract required the original developers to provide “all” electrical services and cl 1.2.1 of the neighbourhood development contract required all electrical services to be provided to “each” lot.

554 An individual meter for each lot was, in my opinion, one of those electrical services. The contractual obligation was not discharged by providing only one meter to one privately owned lot (Lot 15) – and leaving it to the Lot 15 owner to work out an arrangement with the mooring lot owners as to how the electricity bill might be shared among them. Section 72 turns its face against arrangements where a person in the position of the Lot 15 owner would charge others for electricity on-supplied. The practice reflected in the Service and Installation Rules provides a solution by the installation of individual meters collectively on common property.

555 The community titles legislation and the strata title legislation are analogous in a number of respects. Take as an analogy a conventional residential strata building with 85 strata lots (the same number as the mooring lots in the present case. Suppose that: (a) a strata titles development contract contained a provision equivalent to cl 1.2.1 of the development contracts in the present case; (b) the developer, in purported fulfilment of that contractual obligation, installed one transformer and one meter in one residential strata lot from which electricity was on-supplied to all the other strata lots. The owner of that lot would be in the invidious position of having to enter into an arrangement with other lot owners for them to pay a proportion of his electricity bill and to enter his strata lot to inspect the meter. I think that would be a breach of the developers’ contractual obligation. The present situation seems to me to be indistinguishable.

556 In my opinion, failure to supply individual meters was a breach of cl 1.2.1 of the development contracts.

557 The alternative analysis is that it was negligent in the sense of a breach of an implied contractual obligation to provide the electrical services with care, diligence and skill. It is true that the plaintiffs’ pleading does not plead its case in that way. However, the report of Mr Wilson with which the developers were served prior to the trial supported such a case; the trial was conducted on both sides as though the matters in Mr Wilson’s report were issues in the case; and the pleading point was not taken by the developers until final written submissions. In those circumstances, if it were necessary to decide the claim on the alternative basis, I would be inclined to do so favourably to the plaintiffs. That is, it seems to me to have been negligent to have provided only one meter on Lot 15 and not to have provided individual meters.

Third alleged breach: defects in cable depth

558 The plaintiffs submit that the developers failed to ensure that the cables were laid at an adequate depth of 500 mm prescribed by Australian Standard AS 3000 – 1991.

559 The developers submit:

560 Australian Standard AS 3000 – 1991 “Electrical installations – Buildings, structures and premises” (known as the “SAA Wiring Rules”) states minimum depths for laying of underground wiring. Table 3.7 requires cables to be laid 0.5m below ground (other than where the cables are laid under continuous concrete paved areas of a minimum thickness of 75mm).

561 On 14 April 2008, Mr Dennis Compton, an underground cable locater, measured the depths of electrical cables at Deep Creek Marina. He gave evidence that in many locations around Deep Creek cables are buried shallower than 500mm. Mr Compton measured the depths of cables at 47 locations. At 15 of those locations (being Location Numbers 4, 5, 7, 15, 16, 19, 20, 23, 26, 28-32 and 39), the vertical depths of the cables were less than 500mm.

562 To measure cable depth, a transmitter was attached to the cable where it was above ground. The transmitter sent a signal down the cable which a receiver picked up. The receiver was placed on the ground at the point where the strongest signal was received. The machine which measured the depth had an inbuilt margin of error of 20mm.

563 In cross-examination, Mr Compton acknowledged that the location at which the receiver was placed would affect the reading. Where the land was not smooth or flat, for example at Location No 30, Mr Compton acknowledged that it would be fair to say that the reading may change by about 100-200mm if the receiver was moved a few centimetres to the left or right.

564 Mr Compton also acknowledged in cross-examination that the depth of the cable at the date of measurement is not necessarily indicative of the depth at the date the cable was laid. First, the cable itself may have been the subject of further works. Secondly, the level of the ground surface may be affected by works, or other factors such as erosion, irrigation, flooding or wheel tracks. There has been quite significant flooding at Deep Creek at times. These factors may mean that Mr Compton’s measurements do not reflect the depths at which the cable was laid. As Mr Compton said in cross-examination: “Any work that’s carried out after the pipe or cabling has been put in the ground, anything would affect” the depth of the cabling.

565 In cross-examination, the following exchange occurred between counsel for the developers and Mr Compton:

Q. …having regard to the factors that you've identified, your report is in fact consistent or not inconsistent with cables having been laid at that location [Location Number 4] at 500 millimetres. That's fair to say?
A. That's right.

566 Mr Watson was present when MES laid the cables. On the basis of his actual observations, he said that all cable laid by MES was at a depth of “at least” 600mm. In cross-examination, Mr Watson said he was there every day of the work, although he may have been away for an hour at a time. He said he did not measure the depths himself, but was “99 per cent sure” that all wire went in at least 600mm.

567 Two documents entitled “Notification of Electrical Work”, referred to above at [545] and [549], were tendered, dated 2 December 1994 and 4 April 1996. These Notifications were provided to MRE, an independent supply authority, by the Electrical Contractors Association of NSW. The Notification is a prerequisite to an inspection by MRE.

568 The Notification dated 2 December 1994 was in regards to the connection of electricity to the 18 berths in October 1994. The Notification dated 4 April 1996 was in regards to the connection of electricity to the 67 berths in 1996.

569 After inspecting the electrical work, the MRE inspector wrote “insp ok” (presumably meaning “inspection ok”). Mr Wilson said that the words “insp ok” conveyed to him that it was more likely than not that the electrical work installed at the marina was inspected by MRE and found to be “okay”. Mr Wilson said that he had signed a number of certificates such as “Notification of Electrical Works”; that before signing he would always satisfy himself that the cabling had been buried at at least 500 mm; and that he would not have signed a certificate unless satisfied that the cable had at least 500mm of covering.

570 I accept the evidence of Mr Watson and Mr Wilson. I am not satisfied that the cables were installed at a depth which was less than that prescribed by the Australian Standard. The probable explanation for the later measurement of those cables at lesser depths rests with post-installation events. The plaintiffs’ claim in relation to the cable depth is rejected.

Damages

571 I turn to the assessment of damages for breach of the electricity provisions of the development contracts. I have allowed two of the electricity claims: the need to upgrade from a 200 kVA to a 500 kVA transformer and the failure to provide individual meters to lots. The plaintiffs claim damages proportionate to their unit liability under the community scheme being 7,707 out of 10,000. The amounts to which they seek to apply this proportion are identified below.

572 First, the plaintiffs claim damages for the upgrade from a 200 kVA transformer to a 500 kVA transformer. The cost incurred by the community association for the latter was $46,110.57. On the proportion that they claim, the plaintiffs are therefore entitled to damages in the sum of $35,537.

573 Secondly, the plaintiffs claim that damages for the non-supply of individual metering should be on the basis of the lump sum quote of $774,302 dated 16 February 2006 by Brolec to the CTTT compulsorily appointed manager, which was discussed in Mr Wilson’s report. On the proportion that they claim, the plaintiffs seek damages of $596,754 (7,707/10,000 x $774,302).

574 The Brolec lump sum quote was for the following items:

Item 1 was excluded from the amount of the quote.

575 The Brolec lump sum quote incorporates a number of items which are irrelevant to the claim for failure to provide individual meters. The relevant items appear to 2, 3, 6, 11 and possibly 10.

576 Only the actual cost of the cabling referred to in item 3 is known. The “2 hire boat moorings” referred to in item 3 were owned by the developers and at one time were kept on the public wharf but are no longer there. The new individual meters can only work if they are connected by 85 cables to the houseboat moorings. On 3 May 2006 Mr Brockwell of Brolec sent an email to the compulsorily appointed manager of the community association recommending that an order for this cabling should be locked in because of a forecast of an imminent rise in the price of copper. The cabling was supplied by Brolec to the community association. The price was $280,313 as recorded in Brolec’s invoice dated 3 July 2006 addressed to the community association c/- the compulsorily appointed manager. The community association paid the invoice.

577 Apart from item 3 of Brolec’s quote of 16 February 2006, there is substantial difficulty in allocating part of the lump sum quote to the other relevant items in the quote. There are invoices in evidence relating to progress claims, however they are so expressed as to be of no real assistance. The developers submit that the shortcomings in the quantum evidence are such that no damages should be awarded.

578 The new individual meters have been installed in a shed in the carpark, behind the hotel on community property. There is no evidence as to the actual cost of the shed and the meters. However, it is clear from the evidence and the site inspection that their cost must have been substantial. Difficulty in assessing damages is not generally a bar to recovery of the damages: Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64 at 83, 125, 153. The Court should endeavour to do the best it can on the available evidence.

579 On the other hand, apart from item 3 in the Brolec quote, the difficulties in the evidence entitle the Court to take a conservative approach to the quantification of damages in order to ensure that there is no injustice to the developers. In the circumstances, I propose to take a conservative approach and to apportion $50,000 of the Brolec quote to the cost of the individual meters, the shed and any other relevant items. This will be added to the cost of the cabling ($280,313). The total is $330,313. On the proportion claimed by the plaintiffs, damages will be assessed in the sum of $254,572 (7,707/10,000 x $330,313).

580 Aggregating the said sums of $35,537 (for the 500kVA transformer) and $254,572, the plaintiffs should be awarded damages for their electricity claims against Mr Watson and Sammy One in the sum of $290,109.

An elaborate theory of causation

581 For completeness, I should mention that the plaintiffs put forward an elaborate alternative theory of causation of damages to support the proposition that the original developers should pay damages quantified by a reference to a schedule of damages in the sum of $1,111,126.44 plus whatever amount was required to repay the loan raised by the community association’s compulsorily appointed manager. However, in final oral submissions the plaintiffs did not press some items in that schedule. The amounts in this schedule appear to relate largely to works commissioned by the compulsorily appointed manager and paid from community association funds (financed by a loan) and (so far as the schedule is pressed) appear to relate to electrical and carpark works.

582 The plaintiffs submit that this damage was caused by the developers’ failure to discharge their contractual obligations (discussed earlier) in relation to the electrical works and sealing of the carpark and access road.

583 The steps in the plaintiffs’ causation theory are as follows:

(ii) the developers had an overall plan to upgrade the marina and develop neighbouring land, and it was in their interest to upgrade the original marina originally built by the Watson interests;

(iii) the developers had a number of outstanding obligations in relation to development consent which they were required to do;

(iv) the developers did not want to pay for the work (both required under the development contract and other development consents);

(v) the developers were concerned that as a consequence of not complying with conditions of the consent, the council would not approve other developments on adjoining land which they had planned;

(vi) the developers used access as a tool for negotiation to require community contribution for the payment of these works and engaged in a course of pressure tactics to endeavour to secure their ends;

(vii) this failing, the developers had a compulsory manager appointed;

(viii) the compulsory manager was required to comply with a range of orders, specifically drafted by the developers to secure their plans for the marina (but now at 16 percent of the price);

(ix) the compulsory manager was advised during the process by the developers’ lawyers;

(x) the compulsory manager was advised by the developers’ site manager, Mr Jarman;

(xi) Mr Jarman directed and had significant inputs into works while also having a significant vested interest in the land in Lot 16;

(xii) the works were conducted against the will of the plaintiffs;

(xiii) the plaintiffs had the works, being done at their cost, cease on retaining control of the community association;

(xiv) the developers had brought new CTTT proceedings with a view to restoring the 2006 situation whereby a compulsory manager was appointed and performed prescribed work.

584 The plaintiffs are entitled to receive such loss as fairly and reasonably either arises naturally, that is, according to the usual course of things, from the breach of contract, or if it does not so arise, may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it: Hadley v Baxendale (1854) 9 Exch 341 at 355; St George Bank Ltd v Indigenous Business Australia (2007) 215 FLR 79 (Hammerschlag J). It is unnecessary to pass judgment on the accuracy of the various links in the plaintiffs’ alleged chain of causation. In my opinion, even if they were to be proved, the chain is incapable of establishing that the claims for breaches of contract (in relation to electricity and the sealing of the carpark and access road), which I have upheld, caused the claimed damages within either limb of the principle in Hadley v Baxendale.

CLAIM IN RELATION TO TELEPHONE CONNECTIONS

585 The plaintiffs claim that the original developers are in breach of their obligations under cl 1.2.1 of each of the neighbourhood development contracts by failing to provide any telephone services for mooring lots. Clause 1.2.1 relevantly provides that all telephone/telecom services “are to be provided to each lot by the developer”. The plaintiffs claim damages of $59,193.20, which is the amount of a quote dated 23 June 2006 from Brolec to the CTTT compulsorily appointed manager for the supply of Telstra telephone conduits, pits and related services to all moorings.

586 It is clear, in my opinion, that the developers provided some but not all telephone services for mooring lots. On the one hand, there is evidence from Mr Bares, which I accept, that he was able to arrange telephone connections for three of his moorings in the Central and Western Neighbourhoods for $100 each. They appear to be connections to the telephone services provided by the developers. Therefore, telephone services appear to have been provided for at least the Western Neighbourhood and the western side of the Central Neighbourhood.

587 On the other hand, there is evidence from Mr Dennis Compton, an underground cable locater, which I accept, that he did not find underground telephone services to moorings on the eastern side of the marina with the exception of one telephone pit. This pit is near the boat ramp and has a connection from behind the supermarket. A connection runs from this pit to the first mooring on the eastern side of the marina. I conclude that telephone services have not been completely provided on the eastern side of the marina, although to precisely what extent is less than clear.

588 The developers submit that a telephone tower near the marina provides full telephone services. The submission is cryptic but I deduce that it is to the effect that the tower enables mobile telephones to be used at the moorings. The submission refers only to a very short piece of evidence by Mr Wilson in cross examination. I am not satisfied that that evidence supports the submission. In any case, I do not think that the contractual obligation is limited to providing telephone services that would only enable mobile telephones to be used.

589 The Brolec quote was for telephone services to all moorings. It therefore appears to be an upgrade so far as concerns telephone services that have already been provided. Consequently, the difficulty in apportioning part of it to the telephone services that have not been provided is such that I propose to take a particularly conservative approach to ensure that there is no injustice to the developers. I apportion $5,000 of the Brolec quote to the telephone services that have not been provided. On the proportion of the plaintiffs’ unit liability, I assess damages at $3,853 (7707/10,000 x $5,000).

590 In the Land and Environment Court proceedings the plaintiffs seek specific performance of the development contracts in relation to:

Development Act

591 The developers submit that this is not a proper case for specific performance because:

592 The developers also submit that insofar as specific performance is sought for access, access has either already been provided or is in the process of being provided. In that regard they refer to their undertaking to the Court, considered at [472] – [474] above. However, it is unnecessary to consider access relief, given my decision that the foreshore land should become community property pursuant to an order under s 70 of the Development Act.

593 The High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [78] – [80] gave general approval to the speech of Lord Hoffmann in Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] A.C. 1. Lord Hoffman held at 13:

Shiloh Spinners Ltd. v. Harding

what the court has to do is to satisfy itself, ex post facto, that the covenanted work has been done, and it has ample machinery, through certificates, certificates, or by inquiry, to do precisely this.

Wolverhampton Corporation v. Emmons

Jeune v. Queens Cross Properties Ltd

Spry, Equitable Remedies

594 The legislative intention for community titles schemes is easily set at nought or diluted unless specific performance is generally available in relation to the statutory covenants in Schedule 2 to the Management Act. The original proprietors thereby covenant to develop land in accordance with the registered community development contract and the development consent, and subsequent proprietors covenant to permit them to do so.

Manager’s residence

595 I have explained earlier what facilities I consider should be included in the plan that is to become an appendix to the community development contract pursuant to s 70 of the Development Act: see [462] – [463]. One of those facilities is the manager’s residence shown on Lot 16 adjacent to the carpark.

596 Mr Watson at one point in his evidence stated that the manager’s residence shown on Plan 4 (and referred to in the brochure) had now been moved to the top of the supermarket. I reject that evidence. The supermarket is on Lot 15 which is not in the ownership of Mr Watson or the other current owners of Lot 16. Mr Watson’s evidence is inconsistent with a statement made by Mr Jarman to a council meeting on 6 October 2005 indicating that the manager’s residence on top of the supermarket was not to replace the manager’s residence available to the marina at large. When confronted with that statement in cross-examination, Mr Watson conceded that his evidence was incorrect. He agreed that there is no reason why the manager’s residence shown on Plan 4 cannot be built. He also agreed that the development contract, as he understood it, provided for an ongoing obligation on the original developers to build it. He said he was unsure when he proposed to build it.

597 In my opinion, an order for specific performance should be made in relation to the manager’s residence shown on the plan which is to become an appendix to the community development contract pursuant to s 70 of the Development Act. The importance of the manager’s residence to the development was emphasised in the developers’ EIS accompanying DA 18/90, quoted at [65] above. The manager’s residence appears next to the carpark on what is now Lot 16 on plans accompanying DA 18/90 and 66/92 which I have held were incorporated in the consents thereto. If the manager’s residence is not built where indicated on Lot 16 in the development consent plans, the community association would have to find a location for the manager’s residence on community property. In the circumstances, that is unreasonable. Damages for breach would also be very difficult to assess and I do not think damages would be an adequate remedy.

598 I disagree with the plaintiffs’ proposal that the order should require the original developers to construct a manager’s residence. As discussed at [416] above, in my opinion development consents 18/90 and 66/92, insofar as they were concerned with facilities, were on their proper construction for the use of the locations shown on the relevant plans for the facilities shown. They did not authorise construction of the buildings. Construction of buildings would require a further application to the council for approval, for which the council would no doubt require plans and specifications at an appropriate level of detail.

599 An appropriate order, I think, would be to the effect that the developers use all reasonable endeavours to within (say) two years: (a) obtain all necessary approvals for the construction of a manager’s residence consistently with the plan which is (to become) appendix 2 to the community development contract; and (b) construct the manager’s residence in accordance with the approvals. Anything will suffice that is consistent with the general description of a manager’s residence in the general location shown in the plan. This is an order to achieve a result, of which Lord Hoffman spoke in Co-operative Insurance. There should be liberty to apply to allow for the possibility of an appropriate application for a ruling on compliance with the order or for extension of the time for compliance.

600 I consider it appropriate to make orders to the effect that the original developers:

Other matters

601 Apart from the manager’s residence and sealing, I accept that damages are an adequate remedy.

602 One of the orders sought by the plaintiffs is an order to “construct or plant, or effect the development of, shelterbelt planting”. Shelterbelt planting is a landscaping requirement. By-law 4.5.2 of the community management statement states “the developer is responsible for the landscaping of community property only”. The developers did plant shelterbelt on the community property along the access road. The plants died because they were not watered by the community association. If there remains any breach of a planting obligation, I think that damages are an adequate remedy.

603 In summary, in the Supreme Court proceedings I have held that the plaintiffs are entitled to relief to the following effect under s 70 of the Development Act:

annexure H

annexure J

604 In summary, in the Land and Environment Court proceedings I have held that the plaintiffs are entitled to:

annexure J

605 There should be liberty to apply in both proceedings.

606 I will hear the parties as to the form of relief and, if not agreed, costs. Subject to hearing the parties, it seems to me that the developers should pay the plaintiffs’ costs. The parties are to bring in agreed or competing short minutes of orders in both proceedings to give effect to my decisions.

Annexure A

Annexure B

Annexure C

Annexure D

Annexure E

Annexure F

Annexure G

Annexure H

16/09/2008 - typographical errors - Paragraph(s) para 75 change "2001" to 1991, paras 200, 204 change "mortgagor" to "mortgagee"para 212 change "Honeywell" to "Honeyman"para 466 line 5 change "Development" to "Management"

28/11/2008 - Typographical error - Paragraph(s) Annexure

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Citations

Neighbourhood Association DP 285249 v Watson [2008] NSWLEC 245

Most Recent Citation

Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17

Cases Citing This Decision

1

Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17

Cases Cited

20

Statutory Material Cited

15

Community Association DP270212 v Registrar-General for State NSW [2004] NSWSC 961

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54

Commonwealth of Australia v Amann Aviation Pty Limited [1991] HCATrans 40

CITATION:	Neighbourhood Association DP 285249 v Watson [2008] NSWLEC 245 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	FIRST APPLICANT: Neighbourhood Association DP 285249 SECOND APPLICANT: Neighbourhood Association DP 285433 THIRD APPLICANT: Neighbourhood Association DP 285486 FOURTH APPLICANT: Terry Cunnington FIRST RESPONDENT: Anthony Rupert Watson SECOND RESPONDENT: Sammy One Pty Limited
FILE NUMBER(S):	41094 of 2006
CORAM:	Biscoe J
KEY ISSUES:	Real Property :- Real Property :- Community titles legislation - Whether unregistered development applications and plans are incorporated in development consents referred to in registered development contracts and statutory covenants - Whether such plans form part of the development contracts - Whether continuation or completion of community scheme has become impracticable and, if not, whether community scheme should be varied - Whether specific performance should be ordered of original proprietors' obligations under development contracts and statutory covenants - Whether original proprietors in breach of development contracts - Damages for breach of development contracts.
LEGISLATION CITED:	Access to Neighbouring Land Act 2000 (NSW), s 7 Community Land Development Act 1989 (NSW), preamble, ss 3(1), 3(2), 3(4), 4(1), 5, 13(1)(a), 25, 26, 31, 35, 36, 41(1), 70, Schedule 2, Schedule 3 Community Land Development Regulation 1990 (NSW), cl 39(2) Community Land Development Regulation 2007 (NSW), cl 30 Community Land Management Act 1989 (NSW), preamble, ss 3(1), 3(2), 15, 16, 60(1)(b), 85, 106, Schedule 2 Part 1, Schedule 2 Part 3 Conveyancing Act 1919 (NSW), s 88K Disability Discrimination Act 1992 (Cth) Electricity Supply Act 1995 (NSW), s 72 Environmental Planning and Assessment Act 1979 (NSW), ss 83B, 121H Interpretation Act 1987 (NSW), s 8(b) Land and Environment Court Act 1979 (NSW), ss 20(2), 20(5), 71 Limitation Act 1969 (NSW), s 14 Local Government Act 1993 (NSW), s 68 Local Government Act 1919 (NSW), s 311 Real Property Act 1900 (NSW), s 36(11)
CASES CITED:	Amber Holdings (Aust) Pty Ltd v Polona Pty Ltd [1982] 2 NSWLR 470 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64 Community Association DP 270212 v Registrar General for the State of New South Wales (2004) 62 NSWLR 25 Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] A.C. 1 Council of the City of Sydney v Pink Star Entertainments Pty Ltd [2008] NSWLEC 176 Hadley v Baxendale (1854) 9 Exch 341 Hobbs v Petersham Transport Co Pty Limited (1971) 124 CLR 220 Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 85 LGERA 37 Kindimindi Investments Pty Ltd v Lane Cove Council [2005] NSWLEC 398 Loreto Normanhurst Association Inc v Hornsby Shire Council (2001) 122 LGERA 347 Mackay v Dick (1881) 6 App Cas 251 Newmont Pty Ltd v Laverton Nickel NL (1982) 44 ALR 598 Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Quinn Villages Pty Ltd v Mulherin [2006] QCA 433 Sanctuary Investments Pty Ltd v St Gregory’s Armenian School Inc [1999] ANZ Conv R 454 Secured Income Real Estate (Australia) Limited v St Martins Investments Proprietary Limited (1979) 144 CLR 596 Sheldon v McBeath (1993) Aust Torts Reports 81 – 209 Shell Company of Australia Ltd v Parramatta City Council [No 2] (1972) 27 LGRA 102 St George Bank Ltd v Indigenous Business Australia (2007) 215 FLR 79 Stebbins v Lismore City Council (1988) 64 LGRA 132 Tip Fast Pty Limited v South Sydney City Council (2002) 120 LGERA 292 Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 239 ALR 75 Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Limited [2004] NSWLEC 551 Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 156 LGERA 283 Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244
DATES OF HEARING:	28-30/04/08, 1-2/05/08, 5-7/05/08, 12-16/05/08, 19-23/05/08, 26-30/05/08, 2-5/06/08
DATE OF JUDGMENT:	27 August 2008
LEGAL REPRESENTATIVES:	APPLICANTS: Mr P. Tomasetti SC (until 22/05/08) and Mr N. Eastman SOLICITORS: Cosgriff Orchard Legal RESPONDENTS: Mr C. Leggat SC and Mr J. Young SOLICITORS: GDA Lawyers

A	Plan 4 accompanying DA 18/90 to which Murray Shire Council consented.
B, C and D	Three Stage 1 subdivision plans accompanying DA 66/92 to which council consented.
E	Stage 2 subdivision plan accompanying DA 66/92 to which council consented.
F	Sheet 2 of the community plan for Community Association DP 270076 registered in January 1995.
G	Additional sheet 12 of the community plan registered on 16 May 2006.
H	Plaintiffs’ plan of proposed accretions to community property, pursuant to variation under s 70 of the Development Act.
J	Plaintiffs’ plan of proposed facilities to be provided by the original developers to be included in community and mooring neighbourhood development contracts, pursuant to variation under s 70 of the Development Act. This shows a modification of the facilities shown on annexures A and E above, and is Schedule 2 to the plaintiffs’ Second Further Amended Statement of Claim as further amended.