North Sydney Council v Ligon 302 Pty Ltd

[1996] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S27 of 1996

B e t w e e n -

NORTH SYDNEY COUNCIL

Applicant

and

LIGON 302 PTY LIMITED

Respondent

BRENNAN CJ
DAWSON J
TOOHEY J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 20 JUNE 1996, AT 10.17 AM

Copyright in the High Court of Australia

MR P.D. McCLELLAN, QC:   May it please the Court, in this matter I appear with my learned friend, MR B.J. PRESTON, for the appellant.  (instructed by Mallesons Stephen Jaques)

MR A.R. EMMETT, QC:   May it please your Honours, I appear with my friend, MR T.S. HALE, for the respondent.  (instructed by Dunhill Madden Butler)

BRENNAN CJ:   Mr McClellan?

MR McCLELLAN:   I trust your Honours have a volume that has been prepared, I think, by both parties within which there are photocopies of the authorities referred to and also some statutory extracts towards the rear of the volume. 

This case concerns the question of whether or not Ligon has made a valid development application to North Sydney Council and it turns upon whether or not the application conforms with section 77(1)(b) of the Environmental Planning and Assessment Act, New South Wales.  Now, that section of the Act is behind tab 24 in the volume.  I think it is the third page behind that tab.  Section 77(1) firstly provides that the

application may be only made by

(a)  the owner of the land....., or

(b)  any person, with the consent in writing of the owner of the land to which that development application relates.

And it is subsection (1)(b) which is brought up for consideration in this case.  The form of the development application is to be found in the appeal books.  At page 4 of the book is the standard form which was lodged with the Council.

The existing development on lot 1, if I can call it that, which is land owned by the North Sydney Club, Ligon having rights in relation to the prospective redevelopment of that site, is developed and used for the purpose of a businessmen’s licensed club and on page 4, the land upon which that Club sits is identified as “LOT 1 IN DP 580468” in section A at about line 7 on that page.  It is said that the development, this is in section B, is:

Refurbishment of existing structure and construction of new building above.

and it is referred to as “CLUB/RESIDENTIAL”.  In general terms, consent has been sought to construct a development which maintains a large part of the existing Club facilities but which will add to the Club so as to, in general terms, double the floor space of the Club with commensurate car parking and other facilities and also, consent is sought to erect a wholly new component which is a ten-storey residential flat building which generally will sit on top of the modified Club premises.

The respondent lodged various plans with the Council and if the Court would go to page 67 of the appeal book, the issue starts to emerge.  On that page you can see what is referred to as the “site” which is dotted.  You can see that the dotted area extends over two parcels of land.  The shorter parcel is the site of the existing Club.  The longer parcel with the trees shown on it, proximate to the Warringah Expressway is, in fact, land owned by the Roads and Traffic Authority of New South Wales which is to be incorporated to provide access to the proposed development.

You can then see, coming to the south, a piece of land on the corner of Walker Street and Berry Street over which you can see four rights of way, although only three are identified by the words rights of carriageway or right of footway.  There is a fourth one which you can see marked out; the narrowest one and the one closest to the Warringah Expressway.  Now, the outline which, when you look at it, is the outline of a building sitting on that land is a residential flat building known as the Century Plaza Development.  In order to access the proposed redevelopment of the Club site, it is intended that the rights of carriageway on the Century Plaza land will be used both for pedestrian access and also to enable vehicular pick up and drop off of persons.

DAWSON J:   But nothing will be done by way of construction or alteration ‑ ‑ ‑

MR McCLELLAN:   Nothing is intended to be physically done.  The original intention of Ligon was that there would be some minor works done but after this issue emerged it was decided that that would not be pursued.

TOOHEY J:   In what circumstances, Mr McClellan, were those easements created?  Were they all created at the same time or over a period of years and in favour of whom?

MR McCLELLAN:   They were created - I am not sure whether they were created at the same time, I think they were, yes, and they were created in favour of the Club.

TOOHEY J:   Do you not mean, the registered proprietor of the land on which the Club is situated?

MR McCLELLAN:   Yes, that is right.

BRENNAN CJ:   What is the boundary of the Club land?  Is that on the north bounded by the line at the edge of the right of carriageway and on the east by the line which is continuous from the old site?

MR McCLELLAN:   The Club’s land, as I understand it, is the whole of the land stippled, or dotted, but confined to the shorter portion, not that long portion with the trees shown on it.

BRENNAN CJ:    Yes.

TOOHEY J:    It is just odd that the right of carriageway stops where it does.  It seems to stop short of providing the sort of access that you would expect.  I mean, of course it can be added to, I suppose, the right of footway but as a right of carriageway, it does not seem to serve the purpose for which it might have been expected.

MR McCLELLAN:   Yes, your Honour raises in my mind - I had made the assumption that that diagrammatic representation was entirely accurate as to that right of carriageway.  Your Honour has raised in my mind, I will have it checked as to whether that is entirely an accurate representation.  For the purpose of the discussion, it would be my respectful submission perhaps that need not matter so much.  What matters is the intention to use the Century Plaza land for the purpose of the access.

BRENNAN CJ:   Now, do I take it that the Club land is the dominant tenement in respect of easements over the areas marked respectively by right of footway or right of carriageway?

MR McCLELLAN:   That is right.

BRENNAN CJ:   Well, then it cannot be an accurate representation, I would not have thought.

TOOHEY J:   That does not quite get you there.

MR McCLELLAN:   Your Honour is right to raise that in my mind.  Can I pass on.  I will come back to that point.  I think there might be some other plans that might help us more accurately.

BRENNAN CJ:   Do we have copies of the respective easements?

MR McCLELLAN:   Yes, they are in the appeal books, your Honour.  Page 276 describes them and, I think, page 278 has a plan which it is difficult to understand and there is a further plan at 286.  The grant is at 286 and the plan at 295-6.  Yes, and if you look at 295, your Honour Justice Toohey is right, it does continue on.  There is a change in level that accommodates the representation that has been made.  Now, the intention of Ligon, made plain in the evidence, is to use those rights, as I have said, to provide pedestrian access to the residential component, provide pedestrian access to the Club and also provide vehicular drop off and pick up facilities for both uses.

If the Court would go to page 73 of the appeal book there is a plan there of what was said to be the proposed access arrangement and your Honours will see there there are arrows demonstrating a means of vehicular entry to the proposed car park across the RTA land.  Your Honours will also see on that plan, on Century Plaza’s land there is a facility to the expressway side of the Century Plaza building which is described there as “residential entry”.  Now, that was originally intended to be some constructed facility but that has not been pursued and is not now pressed.

Between the reference there to “residential entry” and the Club land you can see another rectangular shaped facility.  That is, in fact, an existing stairway and if your Honours would go to page 105 of the book you can see that stairway coming up and giving access to what is referred to as the “residential lobby” with a lift court.  The plan makes plain how that residential access is separate from the Club facilities.  What is proposed is to utilise those existing stairs to gain access to the residential facilities. 

There are two ways in which we put our case.  The first is to relate to the words of the section, section 77(1)(b), which provides that a development application may only be made by a person who has:

the consent in writing of the owner of the land to which that development application relates.

It is our submission that this application relates not only to the Club land but by reason of the intention to provide access from and across the Century Plaza land, it relates also to the Century Plaza site.

TOOHEY J:   When you put it that way, are you suggesting rights of access other than the rights over the existing easements?

MR McCLELLAN:   No, but what I would seek to do is to distinguish the relevant concepts and, with respect, submit the majority in the court below confused them.  There may be and, indeed, there are obviously rights as between the two properties expressed in terms of the easements but the existence of those rights says nothing with respect to the requirement for consent under the relevant planning legislation and although it may be that the Club could not complain about the proposed intensification of the use as being outside the terms of the easement, that says nothing in relation to the planning question which falls for consideration having regard to the terms of the statute.

TOOHEY J:   Yes, I was not so concerned with the quantum of use question as it is developed by the Court of Appeal, but just as a matter of geography, as it were.

MR McCLELLAN:   I am sorry, yes.

TOOHEY J:   We are talking only about access over the existing rights of way, are we?

MR McCLELLAN:   That is right.

TOOHEY J:   Thank you.

DAWSON J:   Who owns the Warringah Expressway?

MR McCLELLAN:   The Roads and Traffic Authority of New South Wales.

DAWSON J:   Well, the application, on your argument, would relate to that land as well.

MR McCLELLAN:   Yes, and the consent of the RTA was given.

DAWSON J:   Yes.

MR McCLELLAN:   Clearly so and, with respect, that makes our point.  They obtained the consent of the RTA, they sought the consent of Century Plaza but failed to obtain it.  That way in which we put the case was the way which found favour with Justice Kirby in the court below and its simplicity has, we would respectfully submit, great attraction for those who are required to administer the planning system.

DAWSON J:   But it makes a nonsense in the end of the scheme, does it not, because it means that an adjoining owner who can object - or if an adjoining owner does object, the objection will be considered on its merits, can forestall an application in the first instance.

MR McCLELLAN:   Well, an owner whose land is a necessary part of the development can refuse to consent.  Your Honour is quite right but, with respect, that is an entitlement ‑ ‑ ‑

DAWSON J:   Well, that begs the question, “a necessary part of the development”.

MR McCLELLAN:   That is the submission we make.  Your Honour, for the purposes of this argument I use the word “necessary” and put the case higher than I need to.  All that the statute invokes is the consent of the owner of land to which the application relates.

GUMMOW J:   But do we not have to look at section 77 with section 84?

MR McCLELLAN:   For the second way in which I seek to put the case, yes.

GUMMOW J:   That is to say the requirement of notification to potential objectors.

MR McCLELLAN:   With respect, no.  What section 77 is seeking to do is to say that when you wish to develop land and that development involves land which you do not own, then you must obtain the consent of the owner of the other land.

DAWSON J:   You have to go back - and no doubt you will in a moment - to the definition of “development”, do you not?

MR McCLELLAN:   For the second argument, yes.  Can I stress again the first argument says nothing in relation to development and the concepts that are there involved but merely turns upon the words of section 77(1)(b).  If as a matter of fact the application relates to adjoining land, that, with respect, fulfils the requirements of the section and the consent of the owner of that land is required.

DAWSON J:   But “relates” is a word of broad significance and must take its meaning from its context.

MR McCLELLAN:   Indeed.  We have given your Honours in the written outline, which I trust the Court has in some way received, reference to a number of cases where the word “relate”, including in a planning context, has been referred to.  Justice Gibbs in the Pioneer Concrete Case embraced it as a word of wide import, as did Justice Cripps, I think, in New South Wales in a matter which Justice McHugh would recall in relation to the old treasury building in Macquarie Street.  But your Honour is right:  it is a word of wide import.

BRENNAN CJ:   What is the meaning of “land”?  Is it a geographical meaning or is it a meaning of land in the sense of a bundle of rights that is possessed by the titleholder?

MR McCLELLAN:   I think the Act picks up the definition in the Interpretation Act and is expressed by reference to - I am sorry, it is expressed as an inclusive definition.  I do not think your Honours will have it in those extracts.  Can I read it.  It is said to include:

(a)  the sea or an arm of the sea,

(b)  a bay.....body of water.....

(c)  a river, stream or watercourse, whether tidal or non‑tidal.

But it is expressed merely to include those matters and does not otherwise speak.

BRENNAN CJ:   It may be that it is only including but it does seem to indicate that it is speaking about the topographical phenomenon, does it not?

MR McCLELLAN:   It appears so and, with respect, your Honour, the purpose of this legislation being to control the use in a physical sense of land, that approach would be relevant to the concepts involved in construing section 77.

DAWSON J:   Except when you go to the definition of “development” it speaks of:

(a)  the erection of a building on that land,

(b)  the carrying out of a work in, on, over or under that land,

(c)  the use of that land -

which seems to confine it to the land on which the building or erection is to take place.  But I do not want to cavil with you.

MR McCLELLAN:   Having made the first point, can I go to the second way we put the case and then perhaps the distinction I make in the first point may be clearer.

BRENNAN CJ:   Before you do that, I would be grateful if you could bear with me for a little longer while I discover the meaning of other words in this paragraph.  “Land” you have taken us to.  “Owner” I see is defined to have the meaning ascribed thereto in the Local Government Act.  What meaning does the Local Government Act give to “owner”?

MR McCLELLAN:   That is behind tab 25 and (b) relates to land other than Crown land.

BRENNAN CJ:   So “owner” then in this section means or includes the freehold owner of the topographical area?

MR McCLELLAN:   Yes.

BRENNAN CJ:   And that is Century Plaza?

MR McCLELLAN:   That is Century Plaza.

TOOHEY J:   Can I hold you up yet a moment, Mr McClellan.  Staying with your first argument which turns upon the meaning of section 77, can you just tell us precisely in what sense it is said that the development application relates to the Century Plaza land.

MR McCLELLAN:   It relates to it because it is proposed to use the Century Plaza land for the purpose of pedestrian access to the redeveloped Club and the new residential flat building.

BRENNAN CJ:   So the existence on your argument of the rights of footway and so forth is irrelevant in the sense that whether they existed or not, if the development proposes the use of the Century Plaza land, that is the relevant relationship?

MR McCLELLAN:   That is right.  You can test it in various ways, with respect.  If Ligon owned the Century Plaza land and sought to properly describe their development application, then it would necessarily include the pedestrian capacity to move across the Century Plaza land.  That is one way of testing the situation.

TOOHEY J:   The picture might be clearer if the proposal included a grant of easements in favour of the subject land by Century Plaza.  It might be clearer then that it relates to, in the sense that rights come into existence which have not previously existed.  I am not suggesting that that is the criterion, merely that it might be a clearer picture.

MR McCLELLAN:   It would be a clearer picture and, to the extent that I am seeking to remove the mist to get to that picture, I do it in the way that I do.  This Court, in a slightly different context, looked at the question of access in the Pioneer Case where the application made in Queensland was for a quarry but the application did not include within it the land over which an access‑way to the quarry had to be constructed to be used for the purpose of removing the material.  The majority in this Court said that that application was defective by reason of the fact that it did not include the element necessary for the development to take place, which was the access facilities.

The ultimate principle - I will come to this again in a moment - is that this development requires access for it to exist, for it to function.  The character of that access for planning purposes is to be described by reference to the purpose which the access is to serve.  So that for planning purposes the access becomes that of the use of club or residential flat development.

The way I have put the case so far just turns upon the construction of section 77(1)(b).  To look at the second question - that is whether or not development consent on the Century Plaza land is required - one needs to look at the definition of “development” which again is behind tab 24.  It is described as meaning a number of things, relevantly:

(c)  the use of that land or of a building or work on that land -

That makes plain, as has always been the case, that when you come to look at development, you are looking at a variety of concepts which may include the erection of buildings, may include the use of buildings, may include the works on land or may merely include the use of land.

DAWSON J:   But “use” there is peculiar.  If you were asked to tick the inconsistent paragraph out of (a), (b), (c) and (d), you would tick (c) because all of the others involve some change in the way in which the land is going to be used, but (c) does not necessarily on its face.  It involves the erection of a building or the carrying out of a work or the subdivision, but does (c) embrace an unchanged use as a development?

MR McCLELLAN:   Yes, it does.  With respect, I am not sure that ‑ ‑ ‑

DAWSON J:   It is hardly ejusdem generis with the other paragraphs, is it?

MR McCLELLAN:   If your Honour would look again at (b), “the carrying out of a work” may not involve change either.

DAWSON J:   Well, it does.  It involves the carrying out of a work.

MR McCLELLAN:   Yes, but it may be a work that is a continuing work.

DAWSON J:   But it means doing something different.

MR McCLELLAN:   Indeed.

DAWSON J:   But you say “use” in (c) does not necessarily involve doing anything different at all.

MR McCLELLAN:   Can I say this:  it does.  Every time a pedestrian moves across the land, that pedestrian is using the land.

DAWSON J:   But not in any different way from that which was available previously.

MR McCLELLAN:   Your Honour is right in that but every time the relevant work takes place, it may be exactly the same work that has previously occurred but it is now occurring again.  I am fortified in the submission I do make, your Honour, by consideration of the section which defined “development” in the Local Government Act which, until 1980, controlled the planning process in New South Wales.  The Local Government Act sections were repealed and the Environmental Planning and Assessment Act came in its place.  We have provided your Honours behind tab 26 with a copy of the old definition of “development” which did import the concept of the change.

DAWSON J:   That embodies the distinction that I was trying to put to you, yes.

MR McCLELLAN:   Indeed, and it has been deliberately, with respect, not included in the definition which is in the Environmental Planning and Assessment Act.

BRENNAN CJ:   What does it mean?  If you have got a manufacture being carried on on premises, each day of manufacture when there is more work going on, there is a development?

MR McCLELLAN:   Yes, and that was done deliberately because of the decision of this Court in Vumbaca v Baulkham Hills Shire Council.  In that case there was a quarrying activity taking place without consent, said to be illegal.  But, because of the form of the Local Government Act including that old definition of “development”, this Court, with respect, rightly found that there was no change in purpose.  The activity was taking place but there was no change in purpose.  As a consequence, although illegal, development consent was not required and the council failed.  When they rewrote the Environmental Planning and Assessment Act they deliberately brought everything in but then, by reason of the careful exclusion of “existing uses” under the “existing use” right provisions, they have protected uses which either have consent or which were lawfully taking place before a relevant date.  So the scheme of control is different and that is the way it is now done.

The consequence is that everything is developed but only those which are not protected require development consent.  Relevantly what is occurring here is a development which involves two components.  One is a development designed to enlarge the Club with consequential activities, including the necessity for access to be obtained to that Club by persons resorting to it in its changed form.  That access is to be obtained across the Century Plaza land.  That activity alone, the redevelopment of the Club including the access to it, would require development consent, in our submission.

Secondly, of course, a new residential flat building is to be constructed which also is to utilise access across the adjoining land, and that is a separate and a distinct purpose which also requires consent.  The access, in our submission, equally requires consent.

BRENNAN CJ:   Where are the “protected uses” provisions of the Act?

MR McCLELLAN:   I regret your Honours do not have those in the extracts.

BRENNAN CJ:   Can you just tell me what the sections of it are.

MR EMMETT:   Your Honours, we do have a print of the Act which we were intending to make available if your Honours do not have it.  It is subject to a qualification though in that it is a reprint effective as at April 1996.  I do not think it incorporates any amendments that would have any relevance to the issues that arise in this case.  I make those available with that reservation, if they are of any use to your Honours.

BRENNAN CJ:   Thank you.

MR EMMETT:  For example, the definition of “owner” has now been changed because it now refers to the new Local Government Act in New South Wales rather than the 1919 Act.

MR McCLELLAN:   Section 106 and following contains the existing use provision, there being a protection of existing uses lawfully commenced, which in general means before planning controls which required consent.  That is in section 107.  Section 108 provides for the making of regulations, and there are now some relatively simple regulations that deal with those matters.  By reason of sections 109, 109A and 109B, further protections for uses the subject of consents are provided.  Your Honours appreciate that in this case there is of course no consent for the residential flat building proposed on the Club land, nor is there an existing consent for the proposed new Club.  There is, however, a consent for the Century Plaza residential flat building on the Century Plaza land - that is plain - but that consent does not authorise and could not, in our respectful submission, the use which is proposed to be made of that site to facilitate the proposed development on the Club site.

If I might direct the Court’s attention just to the written outline to indicate how it is that we have used the relevant authorities ‑ ‑ ‑

DAWSON J:   Just while we are on the Act, what is it that requires you to make a development application?

MR McCLELLAN:   Section 76(2), your Honour.  Your Honours have section 76.

DAWSON J:   Yes.  The development which is specified which may not be carried out except with consent is what?

MR McCLELLAN:   Is both the Club and residential flat building.

DAWSON J:   Why?

MR McCLELLAN:   Because the local environmental plan which controls development in this area so provides.

GUMMOW J:   Where do we have the text for that?

MR McCLELLAN:   Page 167, I think.  The zoning is “(Special Uses ”A”), Zone No 5(a)” at the top of that page and the uses which require consent are there set out.

DAWSON J:   Perhaps if I indicate, Mr McClellan, what is in my mind; it may be quite wrong, but it may help in identifying the particular section.  What is being sought is no change in the use of the land that is owned by Century Plaza.

MR McCLELLAN:   No, that is, with respect - we would say that is wrong.

DAWSON J:   If that is so, there is no development application in relation to that land, is there?

MR McCLELLAN:   If there was no change in use occurring, that would be right.  But, what is going to occur is two changes:  one is, it is now to be used as access to a new residential flat building on the adjoining land - that is a change of use because that use has not been approved.  Secondly, it is to be used as access to the enlarged club.  That has not been approved, either.

DAWSON J:   I see.  If one took the view that there was no change in the use of the Century Plaza land but took the view that there always was use by way of access and that continues, even though the volume of traffic may increase and so on, if one takes that view then would you concede that there was no need to obtain a consent of the Century Plaza ‑ ‑ ‑

MR McCLELLAN:   Not quite in those terms, your Honour, because the submission we make is that the use requires consent.  The concept of change is irrelevant.  What is relevant is whether or not you describe the prospective use as falling within the use which has been permitted.

TOOHEY J:   It might drive you back to your first argument.

MR McCLELLAN:   With respect, not.  It stands separate from, but I appreciate what your Honour says.

TOOHEY J:   In the sense that your first argument stands independently of the matters that Justice Dawson has been canvassing.

MR McCLELLAN:   That is right, yes.  The planning wisdom of the submission we put, we would respectfully submit, is plain.  If you have a consent for, say, a modest residential flat building - two‑story building - which necessarily involves access across the Century Plaza land - and it may be pedestrian or vehicular access for the purpose of the illustration - that application, and its approval, of course, would give rise to limited physical effects, both on the Century Plaza land and on the immediately adjoining public facilities, the roadways.

If an application was then made, to exaggerate the position, for not a two‑unit development, but one containing two hundred units, then the physical characteristics of the proposed development would be, obviously, quite different.

DAWSON J:   That is right, but you can test it the other way.  On your argument, if something were to be done on the Club land, if I might call it that, and made not one whit of difference to the use which would be made of the right of access, you still have to get the consent of Century Plaza land.

MR McCLELLAN:   Yes, although, with respect, that example is unlikely to ‑ ‑ ‑

DAWSON J:   I know it is unlikely, but that is what your argument entails.  I am sure it is so unlikely when you see the way in which people behave in this field of endeavour.  That just, really, leads to a silly result, does it not?

MR McCLELLAN:   Your Honour, what the legislation - the policy behind the legislation is ensuring, if you want to utilise someone else’s land for your development then that other person is ‑ ‑ ‑

DAWSON J:   Contemplates his development.  There is no development of that land at all.  You may object to the development of someone else’s land and your objection will be considered, but this is a question of whether you can even make an application.

MR McCLELLAN:   I think where we would part from your Honour’s analysis is in the approach your Honour takes to the definition of “development”.  Your Honour is importing ‑ ‑ ‑

DAWSON J:   One would look for some solution of the problem and that seems to be the only place one can look for it at the moment.

MR McCLELLAN:   Your Honour is importing the concept of change.  The outcome in the example your Honour puts forward, we would respectfully submit, in practical terms would be this:  if there is truly no change then equity would grant relief to the dominant tenement and require Century Plaza to grant its consent.  That would be the way in which ‑ ‑ ‑

DAWSON J:   Would it?  Equity does a lot of things these days, but ‑ ‑ ‑

MR McCLELLAN:   That would be our submission, and indeed, there is support for that in some recent cases in New South Wales.

DAWSON J:   Yes, there might be too.

MR McCLELLAN:   Justice Kirby suggested it in his judgment in this case.

GUMMOW J:   Yes, I was wondering about that.

MR McCLELLAN:   He did not give any particular, as well.  With respect, that, then, properly analyses the positions.  There is a private relationship that was dealt with in one way, and there is a public relationship which is dealt with under the Act.

I need to correct one thing before I go any further:  the Club land is zoned 5(a) but the Century Plaza land is zoned residential 2(c).  It makes no difference for relevant purposes because consent is required.  Perhaps I should also, in that vein, take your Honours to page 157 of the appeal books, which provides the preamble to the control in the zoning table.  Page 157, line 15, clause 9, the control operates upon development, thereby picking up the definition of “development” which makes it compatible with section 76 and the scheme is thereby made complete.

If your Honours do not seek to delay me further, can I just indicate that in the written outline we have provided, at the bottom of the first page we provided a number of references in relation to the meaning of the word “relates”.  I do not propose to take the Court to any of those.  They are some in a planning context and some not, obviously, but the word, in our submission, is a word of wide import.  We have also provided in the fourth paragraph on the second page various references which draw upon the remarks of Justice Kirby in the Court of Appeal, when his Honour was weighing the prospective interpretations of section 77.  He reinforced the view that he came to by reference to the principle of statutory interpretation, that you do not interfere with vested proprietary rights unless there are clear words.  We have provided your Honours with references to that oft‑stated principle.  I do not propose to take the Court to those.

GUMMOW J:   Is there an interference in vested proprietary rights other than by invoking the doctrine of excessive user of the easement?  The proprietary rights are there.

MR McCLELLAN:   There is, your Honour, because one of the rights which ‑ ‑ ‑

GUMMOW J:   It is not suggested that this would involve that doctrine as a matter of private law.

MR McCLELLAN:   Justice Kirby raised the matter in the way that he did.  His Honour must have been mindful, we would respectfully submit, that one of the rights accorded an owner of land in New South Wales is the protection provided by section 77.  That is the way that his Honour must have reasoned.

BRENNAN CJ:   Do you embrace any manner of construing this Act by reference to private rights?

MR McCLELLAN:   Yes.  We respectfully submit that this Act does provide to those who have interest in land rights drawn from the desire both to protect the public at large, but also individual private owners of land.

BRENNAN CJ:   By way of objections?

MR McCLELLAN:   By way of objections is a general right, but a more particular right given to the owner of land is that provided in section 77.

BRENNAN CJ:   How is it that the provisions of the Act with which we are here concerned affect private rights in your submission?  Or capable of affecting private rights?

MR McCLELLAN:   One would put it in terms that the Act gives to owners of land the right contained in section 77.  It gives to owners of land the right to object.  Indeed, it gives to owners of land, of course, the right to make development applications.  That is the only way I can put it, your Honour.

BRENNAN CJ:   Gives to owners of land.  On your argument, it would give to owners of land a right which they did not have at common law.  Namely, it would give to Century Plaza a right to object to a development on their neighbour’s land.

MR McCLELLAN:   I suppose they would always have that right.  What your Honour is perhaps saying is it would give them the right which it might be thought they had given away by the granting of the easement.  That takes you, of course, to a discussion not necessarily ‑ ‑ ‑

BRENNAN CJ:   I am not talking about the actual easements in this case.  I am talking about the construction of the Act.  If it is right to say that land across which access is to be had to subject land which is to be built upon is, or enlivens the power to refuse permission and thereby to abort the subject landowners proposal to develop his land, then that is a right which, at common law, the owner of the land across which access is to be obtained, did not possess.

MR McCLELLAN:   That may be so, your Honour, but that is, with respect, clearly what the Act provided.

DAWSON J:   That means it is a statutory right.

BRENNAN CJ:   A statutory right.

MR McCLELLAN:   I understand what your Honour says, yes.  I, in faithfulness to his Honour Justice Kirby’s judgment, brought forward those references.  I do not propose to take the Court to them.

I should, perhaps, take the Court, however, to the Pioneer Concrete decision, 145 CLR.  If your Honours are familiar with it I would appreciate being told.  It involved an application in relation to, as I said before, a quarry in Queensland where the applicant company had not included with this application the land over which the access was to go, the consequence being that neighbours to that land had not been notified and afforded the right as a consequence to object by reason of a notification.  The Court divided on the matter.  Justice Gibbs, who presided, determined that it was open to Pioneer to divide up its proposal into effectively two stages so that the company could seek consent for the quarry and at a later time seek consent for the access to serve the quarry.  His Honour, at page 498 at point 2 on the page, discusses the concept of “relates” in relation to the Queensland legislation.  Something has been made, subsequently, of the definition of “use” in the Queensland law, which is set out on page 502 of the report, in the judgment of Justice Stephen, where “use” was defined to include:

any use which is incidental to and necessarily associated with the lawful use of the land -

It was suggested, or has been suggested elsewhere, that that is a statutory extension of the ordinary concept.  Justice Stephen makes plain in his judgment that he does not rely upon that extension to come to the view that the application in that case extended to the access way because it was an incident of the application.

DAWSON J:   On any view, this case is a case about changed use, is it not?  Changed use of the land over which the access road went.

MR McCLELLAN:   Undoubtedly, there was a change occurring; but it is a case about, with respect, a use that required consent - which is the case here.  The use proposed on the Club land requires consent.  An incident of that use is the access way.  So that, relevantly, we would submit, the principles are the same.

The judgment of Justice Wilson is to the same effect as Justice Stephen, and bears out the view of the majority of the Court that it was not open to Pioneer to split the development into two components, but that the law required they be brought together so that the application could be considered as a whole.

In similar vein, we have provided the Court, on page 3 of the submissions, the middle of the page, with reference to the New South Wales decision in Food Barn v Solicitor‑General.  That is a well‑known judgment of Justice Glass dealing with the concepts of dominant and servient uses.  It related to the vexed question that has troubled the law, at least in New South Wales, of wholesaling and retailing, and the extent to which one could sell goods directly to the public.  I think Justice Gummow probably has an intimate knowledge of that case. 

Lizzio v Ryde Municipal Council is a decision of this Court in relation to the selling of flowers.  It endorsed what the Court of Appeal said in Food Barn, to the same effect, that a necessary component of a use is an incident of it, and takes its character and description from the dominant use.  So that, although described as access in this case, the true description of that access is the use for the purpose of residential flat building and/or club, which requires consent.

Perhaps another way of looking at the case, if I may put it, Justice Dawson, in this way, is this:  if we had the situation where, although the easements existed, there was no development presently on either parcel of land, so that the Club sought to erect its club and residential flat building on its land, utilising the Century Plaza land with the benefit of the easements for the purpose of access, it would be our submission that, in those circumstances, the development consent required would extend to consent in relation to the Century Plaza land.  The existence of the private right cannot preclude the necessity to obtain the statutory approval.  Now, in our submission, there is no relevant distinction between that circumstance and the circumstance here.  In both cases, consent is required.

BRENNAN CJ:   Does it follow from your argument that, if you are right then the Council would be able to say, you shall have access for the residential premises only from Walker Street or from Berry Street, whereas if you are wrong, they could not identify the place from which access could be obtained.

MR McCLELLAN:   No, the Council would have a discretion as to the form in which it might approve the application in any event.  The Council could, by reason of a condition, if we leave aside the question of whether or not it constitutes an approval as opposed to a refusal, but if we just assume that it is appropriate to approve it, then the Council could condition the way in which the approval is to operate.

BRENNAN CJ:   I see, yes.

MR McCLELLAN:   So much is plain.  But, your Honour appreciates the first question we say which arises.

BRENNAN CJ:   Yes.

MR McCLELLAN:   Your Honours, I think I have adequately developed for our purposes the material which we advance in support of the appeal, if the Court pleases.

BRENNAN CJ:   Thank you, Mr McClellan.  Mr Emmett.

MR EMMETT:   May it please, your Honours.  May I begin by indicating the scheme of the legislation as we contend it is relevant.

BRENNAN CJ:   Do you have some notes of your argument?

MR EMMETT:   Yes, your Honour.

GUMMOW J:   This looks quite a different footing to that found in the majority judgment of the Court of Appeal.

MR EMMETT:   We think, on analysis, it is probably not, your Honour.  The majority was a fairly short judgment on this aspect, because the appeal was going to be upheld in any event on the more serious ground, which resulted in the matter being referred back to the Land and Environment Court.  Perhaps, I do not know whether your Honours are aware of the history of the proceedings, because it is a bit odd frankly that the matter is before your Honours at this stage ‑ ‑ ‑

DAWSON J:   That is what I thought; they may never arise in the event.

MR EMMETT:   Quite possibly, yes, but ‑ ‑ ‑

DAWSON J:   However, that is no doubt ‑ ‑ ‑

MR EMMETT:   I do not know whether your Honours want to consider that aspect at this stage.

TOOHEY J:   There was an application for adjournment when the special leave application came on, which the Court refused.

MR EMMETT:   There is presently pending in the Court of Appeal another appeal from a further determination made by Mr Justice Bannon following the remission from the Court of Appeal to the Land and Environment Court.

TOOHEY J:   So when you speak of the more important question being before the Land and Environment Court, this particular point, if it is resolved against you, is fatal, is it not?

MR EMMETT:   Well, it may not be, but something we have dealt with in the last paragraph of our written outline, that even if your Honours were of the view that the construction contended for by the Council is correct, the proper order is still the order that was made, namely that it be remitted to the Land and Environment Court, because it may well be that the court would consent to an amendment to the development application which did not involve the use of the rights of way for access at all.  Now that question just has not been resolved one way or the other, so that it is not necessary fatal to this development application that that happen.

TOOHEY J:   It is fatal to the development application in its present form.

MR EMMETT:   To the current form, yes, but not to the disposition of the proceedings.

GUMMOW J:   The relief that the appellant seeks at page 378 in that light is a little peculiar.  In a way what is sought against you, I think, is something tothe effect of a declaration, a declaration here that the Court of Appeal should have allowed the appeal on a further ground.

MR EMMETT:   I am not sure that that is quite what is sought.  The order sought is the order that was actually made, but subject to this difference, that the order that was made was that the matter be remitted to the Land and Environment Court for determination in accordance with the reasons of the Court of Appeal.

GUMMOW J:   The declaration in a way was reflected in the first sentence there, the second paragraph on page 378, as to the correctness of the primary judge’s decision.  I do not know where it all leads at the moment.

MR EMMETT:   Yes, well as I said, I am not sure whether your Honours want to go into the state of the litigation between the parties or whether, leave having been granted on the issue, perhaps I should just address that issue and ‑ ‑ ‑

BRENNAN CJ:   I think you have trailed your coat, Mr Emmett.

MR EMMETT:   Thank you, your Honour.  Can I take your Honours to the scheme of the legislation which, in our submission, is critical to the resolution of the question before your Honours.  One starts perhaps with Division 4 of Part 3.  Part 3 is concerned with environmental planning instruments and there are various sorts of environmental planning instruments which are contemplated by this legislation.  One of them is a local environmental plan, which is dealt with by Division 4.  I do not want to take Your Honours to the detail of that, other than to be aware that that is one of the instruments that are dealt with in Part 4.  Part 4 is concerned with environmental planning control and the pivotal provision is section 76, which provides relevantly in subsection (2) that:

where an environmental planning instrument -

such as an LEP, if I can use that expression -

provides that development specified therein may not be carried out except with consent.....a person shall not carry out that development on land.....unless:

that consent has been obtain and relevantly it is carried out with any conditions, et cetera.

Section 77 is then a procedural provision, which says how and by whom a development application may be made   It:

may be made only by:

(a)  the owner of the land to which that development application relates, or

(b)  any person, with the consent in writing of the owner of the land to which that development application relates.

Subsection (3) provides that a development application must,

relevantly (c) and (d):

where the application is not in respect of designated development -

and the concept of designated development is critical to the understanding of this legislation, as I will indicate to your Honour in a moment, it must -

contain, or.....be accompanied by, such information and particulars as may be prescribed.

Or if it is in respect of designated development, it must:

be accompanied by an environmental impact statement -

There are then provisions whereby consent might be granted or otherwise.  Section 84, to which your Honour Justice Gummow adverted, however, is very important in considering the process of consideration of an application for consent:

Where a development application is made for consent to carry out designated development, the consent authority shall forthwith:

(a)  give written notice of that development application:

(i)  to such persons as appear to it to own or occupy the land adjoining the land to which the development application relates -

So the same expression as appears in section 77:

(ii)  such other persons as appear to it to own or occupy the land the use and enjoyment of which, in the opinion of the consent authority, may be detrimentally affected if that designated development is carried out -

And (b):

cause notice to be exhibited in the prescribed manner on the land to which that development application relates -

“designated development” is defined in Section 4 as:

any class or description of development that is declared pursuant to section 29 or 158 -

What has been declared or has not is not relevant, for present purposes.  What is significant is that the legislation draws a distinction between “designated development” and other “development” and it is only designated development which requires this procedure, that is the procedure under section 84, to be undertaken, that is, of notifying adjoining owners, or any owner whose land might be detrimentally affected, and also to put a notice on the land to which the application relates.  There is then in ‑ ‑ ‑

BRENNAN CJ:   What is the possible explanation for such requirements not being applied in the case of non-designated development?

MR EMMETT:   The practical answer seems to be that designated developments are nasty things, such as quarries and offensive sorts of developments - the legislation does not say that, but when one looks at the regulation which does in fact designate or declare developments, one can see what might have been in the mind of the parliamentary draftsmen.  In other words, it is only nasty developments which impose an obligation on the Council to notify adjoining owners and to put up a notice on the land.  There are other protections for non-designated development, which I will come to now, and that is section 90, which is the pivotal provision for the consideration of a development application, an application for consent:

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

So the new concept is introduced there.  Section 77 was concerned with the land to which the development application relates, as was section 84, but the preamble in section 90 is concerned with the development, the subject of the development application.  Then there are a series of matters which the Council must take into consideration.  The matter upon which the appeal was originally upheld was that Mr Justice Bannon failed to indicate that he had taken all of the relevant matters into account, but, putting that aside.

One looks relevantly, for example, at paragraph (c).  One of the things which the Council has to take into consideration is:

the effect of that development on the landscape or scenic quality of the locality,

(d)  the social effect and the economic effect of that development in the locality,

(h)  the relationship of that development to development on adjoining land or on other land in the locality.

DAWSON J:   How does the adjoining owner get to know about the application?

MR EMMETT:   It is a matter for the Council.

DAWSON J:   Is there provision that they give notice?

MR EMMETT:   Well, I will come to that, but there is nothing in the statute that says that, which is significant, in our submission, when one looks at section 84.  The Council is required to, so far as the statute is concerned, take that into account.  A sensible Council no doubt may establish a procedure whereby it does notify adjoining owners, but there is no legal obligation to do so.

DAWSON J:   Except when it is a designated development.

MR EMMETT:   Unless it is a designated development.  Paragraph (j):

the amount of traffic likely to be generated by the development -

(o)  the existing and likely future amenity of the neighbourhood -

So it is compulsory for the Council to take into account the sorts of matters that might affect an adjoining land owner.

TOOHEY J:   Well, you say that, that it might affect an adjoining landowner, but it might equally affect landowners in the vicinity who are not adjoining landowners.

MR EMMETT:   Yes.

TOOHEY J:   In other words, section 90 is, broadly speaking, an environmental programme, as it were.

MR EMMETT:   Yes, but the point is that section 90 itself recognises the particular interest of an adjoining owner, at least, for example, in paragraph (h).  The Act also recognises, however, that a Council might, not only just as a matter of practice, but might wish to introduce a scheme of its own, which requires there be notification of adjoining owners, and one then goes back to section 75 - perhaps before I do that I will go back to section 30.  Section 30(1), first of all, says that:

an environmental planning instrument -

such as an LEP -

may provide that development specified therein:

(a)  may be carried out without the necessity for consent -

or it may provide that it:

(b)  may not be carried out except with consent -

Subsection (4) however, then says:

an environmental planning instrument may.....provide that the provisions of sections 84.....apply to and in respect of development (not being designated development) specified in the instrument in the same way as those provisions apply to and in respect of designated development.

So that the legislature provides the framework within which a Council can apply section 84 to all development and not just designated development.  What is important, though, is the distinction which the Act draws between the two notions, recognising that there will be circumstances where there is no right to be notified, even for an adjoining owner.

TOOHEY J:   Mr Emmett, the emphasis on notification has been on the role of the Council; what about the role of the developer?  Is the developer required to give notice to adjoining owners?

MR EMMETT:   No, I think it is correct to say.  One then goes, however, to section 97.  An applicant for consent -

who is dissatisfied.....may appeal to the Court -

that is the Land and Environment Court.  Section 98, however:

An objector who is dissatisfied with the determination of a consent authority.....may.....appeal to the Court.

What is significant, however ‑ ‑ ‑

GUMMOW J:   There is a definition of “objector”, is there not?

MR EMMETT:   Indeed; a very important definition of “objector”, meaning an objector to a designated development, but not an objector to a non‑designated development.  So that even if the Council does, in its LEP, incorporate the provisions of section 84, pursuant to section 30(4), so that it imposes upon itself the obligation of notifying adjoining owners of non‑designated development, those adjoining owners have no right of appeal to the court.  They can object, but the Council takes their objections into account and that is the end of it.  It is only if it is a designated development that an objector has a right of appeal.

TOOHEY J:   It is something of a double-edged argument though, is it not?  I mean, it might lend strength to the proposition that the land to which the development relates, and which requires the consent of the owner of that land, should be given the meaning for which the appellant contends.

MR EMMETT:   Except, your Honour, if a legislature expressly gives a right of objection to one class and expressly says the other class does not, it would be odd to construe another section as giving that excluded class a greater right than your right of veto, not just a right of appeal.

DAWSON J:   Except that they are not just adjoining landowners; they are adjoining landowners over which land there is an easement.

MR EMMETT:   Well, that does not seem to be the way in which Justice Kirby put the matter, and I do not understand my learned friend to say that it is just because there is an easement that you have this special right.

DAWSON J:   No, it is not just because there is an easement, but because the easement entails use.  That brings you back within it.

MR EMMETT:   Yes, that is a different matter, but at the moment we are just construing ‑ ‑ ‑

DAWSON J:   All I am saying is, because of that they are not just adjoining landowners.

TOOHEY J:   They are owners of land to which the application relates ‑ ‑ ‑

MR EMMETT:   That is the issue, of course, and that is what I am endeavouring to deal with, by looking at the scheme of the legislation, to see what the legislature had in mind when, in section 77, it talks about the land to which the development application relates.  Now, our submission is, shortly, that it is the land which is shown in the development application, and if, having got consent, that does not enable you to do what you want to do, that is unfortunate for the developer, but all that section 77 is concerned with is not creating rights, but the procedure whereby you remove the prohibition that is contained in section 76.

BRENNAN CJ:   Does the development application have to set out the relevant land over which a building, for example, is to be constructed?

MR EMMETT:   Section 77 says:

A development application shall:

(a)  be made to the consent authority,

(b)  be made in the prescribed form and manner ‑

and contain such particulars.  So that the legislation does not say what has to be set out.

BRENNAN CJ:   Yes.  Well now, in this case, for example, is it necessary for the developer to make a development application which even shows the existence of the Century land?

MR EMMETT:   In our submission, no, except for the purposes of enabling the Council to give the discretionary consideration that is required by section 90.  One of the factors which the Council will have to take into account is access.

BRENNAN CJ:   Yes.

MR EMMETT:   Can your Honours look at the development application itself which is at page ‑ ‑ ‑

BRENNAN CJ:   If that be so, one then has a piece of paper which contains, say, the Club land and, if it was lodged without reference to Century Plaza, or to access, the Council would want to know about access.

MR EMMETT:   Yes.

BRENNAN CJ:   Then, does the development application relate to the land over which access is to be obtained?

MR EMMETT:   In our submission, no.

BRENNAN CJ:   Why not?

MR EMMETT:   It might be the roadway that passes by.

BRENNAN CJ:   Well, it might be.

MR EMMETT:   But that is not the land to which the application relates.  That is something that the Council wants to know about in order to determine whether, in the exercise of its discretion, it would grant consent, and that is one of the matters that has to be taken into account under section 90.

DAWSON J:   Put shortly, the application is to do something on land, and the land to which the application relates is that on which you are doing something.

MR EMMETT:   That is so, and, if your Honours look at page 4, that is the piece of paper that was submitted.

TOOHEY J:   It is a pity then that section 77 did not say so.  It might easily have said the development application may be made only by the owners of the land on which the development is to be carried out.

MR EMMETT:   It could have said that.

TOOHEY J:   That would put the matter, perhaps, beyond arguments.

MR EMMETT:   Yes.

DAWSON J:   But that still does not answer the argument against you.  You have got ‑ ‑ ‑

MR EMMETT:   Of the development is being carried out by the mere use of the access, then the same problem arises.

TOOHEY J:   Yes, perhaps that is right, yes.

MR EMMETT:   But this application says:

Description of the land to which the development application relates
.....
LOT 1 IN DP 580468

That “DP” appears at page 66.  It is a rectangular parcel of land, and the description of the development is:

Refurbishment of existing structure and construction of new building ‑

As my learned friend pointed out, there was, in response to a question from one of your Honours, this development application did in fact relate to an additional piece of land and it became necessary then to get the consent of the RTA, because there was, in fact, going to be some construction, namely the building of a slip roadway, actually on the RTA’s land.  There is no question about that consent being required, because it was proposed to carry out development in relation ‑ so, the development application ‑ ‑ ‑

DAWSON J:   To do something on that land?

MR EMMETT:   That is right.  There was going to be landscaping and various other things being done on that land.  We are not concerned with that.  What we say is that when one looks at this application it relates to that rectangular parcel of land.  If, as a consequence, something else might be affected, then that is a matter to be taken into account by the Council under section 90.  If it is a designated development, then the adjoining owner must, of necessity, be notified and has a right of objection.

In fact, under this LEP, section 30(4) has been triggered and this LEP contains requirements whereby adjoining owners have to be notified irrespective of whether they are ‑ ‑ ‑

GUMMOW J:   Which provision is that, Mr Emmett?

MR EMMETT:   On 186 of the appeal book, clause 28 of the LEP.

DAWSON J:   And you would concede, of course, if construction of walkways, or work was required on the Century Plaza land, you would need to have the consent of the owner of that land?

MR EMMETT:   Without question.  What we say in relation to the right of way, is that the right of way, the easement, is something which forms part of lot 1.  The easement is an incorporeal hereditament attached to and forming part of the ownership of lot 1.  The ownership of the Century Plaza land is less than a full unencumbered fee simple.  It is subject to the rights of the easement being the servient tenement, and when application is made for consent in relation to this development, it would include, in our submission, whatever might be involved on the pathway, or the other roadways, that are the subject of the right of way.  So that, even if we are wrong in our primary submission, it follows that the application is being made with the consent of the owner, but perhaps I will come to that.

BRENNAN CJ:   That depends on the definition of “land”, does it not?

MR EMMETT:   It does, your Honours.  We had anticipated that sort of argument.  Might I hand up to your Honours copies of the Interpretation Act.  It says that, “In any Act”:

“land” includes.....hereditaments, corporeal and incorporeal, of any tenure or description ‑

So that, unless there is something in the Environment Planning and Assessment Act which excludes that sort of definition, “land” would include an incorporeal hereditament.  The owner of the incorporeal hereditament, being the right of footway, is the owner, for the time being, of the dominant tenement.

BRENNAN CJ:   What is the qualifier of section 21 of this Interpretation Act?  Is it subject to any contrary intention or words to that effect?

MR EMMETT:   I do not think so, your Honour.

TOOHEY J:   It is a bit unusual ‑ ‑ ‑

MR EMMETT:   Yes.

BRENNAN CJ:   Are there any cases which deal with the application ‑ ‑ ‑

MR EMMETT:   I am not able to draw your Honour’s attention to any.  So, shortly, we say this:  the scheme of the legislation indicates that “relates”, though it might in some circumstances have a very wide meaning, is not intended to have the sort of meaning that Justice Kirby gave it, namely, “affect”, because, in the same provision, that is section 84, where the statute talks about the land to which the application relates, there is an express reference to land which might “be detrimentally affected” by the development; indicating  that there is a distinction drawn between the land to which the development relates, and land somewhere else, some other land, which might be affected by that. 

Now, that, in our submission, is the simple answer to this.  That is what the scheme of the legislation indicates and, when you look at page 4, this application only relates to lot 1, and the consent of the owner, relevantly, of lot 1 has been given.

DAWSON J:   And is that the only way you want to approach the word “use”; to say that what is being used anyway is the interest in land of the owner, of the Club?

MR EMMETT:   That is the primary way in which we put it.

DAWSON J:   Is there any other argument you put in relation to it?

MR EMMETT:   We also say if we are wrong about that construction and, in fact, this application relates to the Century Plaza land, then we say there is no suggestion that there is going to be any prohibited development that would require consent.

DAWSON J:   The argument put against you seems to suggest you would have to have daily applications, because you are using it daily.

MR EMMETT:   That is one view, although I think my learned friend wants to suggest that once a consent has been given to the use of this footway as a footway, then you do not have to do it every day.  There is no suggestion, of course, that that is not the case.  At the moment this footway is being used as a footway.  It is going to be suggested that because ‑ ‑ ‑

DAWSON J:   That means there has to be a change in use.

MR EMMETT:   That is what we would have thought.

DAWSON J:   And he says “No” ‑ of that land?

MR EMMETT:   Of that land, and we say there is simply no change.  There is nothing going to be different.

DAWSON J:   Well, that is what I wondering, if you were saying “use” there means “changed use”‑ ‑ ‑  

MR EMMETT:   Yes, that is when you get to the next level.  We say the simple answer is what I put to your Honours, and if that is right then we do not need to worry about the alternative, but if we are wrong in saying that this application does, in fact, relate to the Century Plaza land, then we say, first of all, “so what”, if we have not got consent to do what is prohibited by section 76, the appropriate thing is to restrain us when we start to commit a contravention of section 76.  But that raises an issue which, in our submission, just is not before this Court; namely, whether what would, in fact, happen once this building goes up, will involve a contravention of section 76.

Now, that might lead to the question that your Honour Justice Gummow raises; just what is the nature of the relief that is sought?  Is it a declaration, and, if so, what are the bounds of the declaration?  What are the factual matters about which this declaration is to give some advice to the parties?

TOOHEY J:   But it would be more fundamental than that, would it not, Mr Emmett, because, by reason of section 77:

A development application may be made only by ‑

one or other of the persons referred to there?  If, in fact, it be the position that consent is required and is not, at this stage, forthcoming, then an application may not be made.

MR EMMETT:   But that begs the question as to whether or not what is going to happen is, in fact, in contravention of section 76.  There is nothing  is section 77 that says anything about the nature of the use that is prohibited by section 76.

TOOHEY J:   No, but there is something in section 77 that tells you about who may make an application.

MR EMMETT:   Oh yes.  If this does relate to the relevant land, on its proper construction, and that is probably a matter of construing the document at page 4, but it does not involve looking at what appears somewhere else in the evidence, namely, how it is that access is going to be obtained.  If this document is a document which comprises an application for consent in relation to the Century Plaza land, then I accept that there is no consent from the owner of the Century Plaza land, but that then takes one into the meaning of the word “land”, as to whether it means the physical parcel.  What then do you do with leaseholds, and the like?  What if you have land which is, for example, the subject of a life estate?  Does it just mean you only look to the owner of the reversion as the person who has to give consent?

BRENNAN CJ:   Then that is the meaning of owner, is it not ‑ owner, which is a freehold ‑ ‑ ‑

MR EMMETT:   Freehold, yes.

BRENNAN CJ:   So that, if your argument is right, you can have a 99‑year lease but you do not need, or can get the consent of the lessee; you have to get the consent of the reversioner.

MR EMMETT:   Of the reversioner, yes.

BRENNAN CJ:   It seems a very curious result of planning legislation.

MR EMMETT:   Well it would be, in our submission.  It is a result one would have avoid.  It does not flow from our contention.  It all comes down to the clear distinction in section 84, that the thrust of this legislation is not to give anybody a right of veto, except a limited class of person, and that limited class of person must be related to what is actually, really, being affected by the application.  Where is something going to be done?  You must get the consent of the owner, where land is ‑ although, I suppose, to interrupt myself, that definition of “owner” would lead to an anomalous result whichever way you take it.

BRENNAN CJ:   Yes, that is right.

GUMMOW J:   This Century Plaza is governed by the Strata Titles Act, is it not?

MR EMMETT:   Yes.  The owner would have been the proprietors of the strata plan.

GUMMOW J:   The body corporate.

MR EMMETT:   The body corporate, yes.

BRENNAN CJ:   Come back to the definition of “development”.  It is an extremely wide definition, is it not?

MR EMMETT:   We accept that.

BRENNAN CJ:   And, what is it that limits it to use in the sense of changing the form or appearance of the land?

MR EMMETT:   One way is just to look at paragraphs (a), (b) and (d), which are concerned with some physical aspect, whereas paragraph (c) is not in its terms.  That would suggest that what the legislature is concerned with is ensuring that any use is consented to.

BRENNAN CJ:   Any use at all?

MR EMMETT:   Yes, once it is consented to then you have consent.  You do not need consent again, thereafter.  That brings us back to our primary submission.  What we are concerned with is not ‑ we do not want to do anything in relation to the Century Plaza land.  Human beings will walk along the footway; cars will drive up and down the driveway.  Maybe, in some circumstances, there could be an excessive user, which would give rise to private law rights, as between the owners of the servient and dominant tenements.  But that is a different matter altogether.

BRENNAN CJ:   If one takes the use of the Century Plaza land as just the moment of people across the surface, you say that has already been consented to?

MR EMMETT:   Well, there is no evidence that it has not been, but that is not an issue.

BRENNAN CJ:   Yes.  Well now, if there is a change in the frequency or volume there, is that a use which has been consented to?

MR EMMETT:   No.  There is a provision which says that an increase in intensity of use is a “development”.

GUMMOW J:   Section 109(2)(c), is that right?

MR EMMETT:   Yes.  That is right.  Nothing in section 109, which is the existing consent provision, would affect any enlargement or expansion or intensification of the use. 

BRENNAN CJ:   Assume, for argument sake, that what is proposed by Ligon will produce an intensification of the use on Century Plaza land; what would be the situation?

MR EMMETT:   Section 76 would then prohibit it without getting consent.  But that is not an issue at this level.  In other words, if what we were going to do did involve an intensification, then it may well be we would have to make an application, and the land to which that application relates would be the Century Plaza land.

BRENNAN CJ:   If your application on the Club land at the moment is such as to entail an intensification of the use, why is it that your application is not an application for a consent to the intensification of use on the Century Plaza land?

MR EMMETT:   If it were, it might be.  But that has never been an issue.  It has never been suggested that there is going to be any intensification.

BRENNAN CJ:   I thought that was the whole nub of it all.

MR EMMETT:   With respect, no.  That just has not been an issue.  There is no finding about that by the Land and Environment Court.

DAWSON J:   And if there were, you would find yourself with a Pioneer Case.

MR EMMETT:   That might be a different matter.  I am not sure if it is a quite Pioneer Case, but that might be a different matter.  The Council would then be entitled to say, and the court would have been entitled to say, “We are not going to grant you this development application, because it would result in a contravention because there would be a development of some adjoining land, and we will make it a condition of granting our consent that you make a development application there”.

DAWSON J:   They might say, in accordance with the Pioneer Case, “The land to which this application relates, because of this, includes the” ‑ you do not want to say that, of course, but ‑ ‑ ‑

MR EMMETT:   I will come to Pioneer because, in our submission that really just ‑ it is concerned with a different scheme.

DAWSON J:   But why could not ‑ putting Pioneer on one side ‑ you say, “Well look, the reason why your application must fail is that, although you say it relates to the land, which is just a particular lot, in fact, it relates to the land which includes the Century Plaza, because there will be an intensification.”?

MR EMMETT:   It does not ‑ ‑ ‑

DAWSON J:   You say that has not arisen.

MR EMMETT:   This has not arisen.  That is right.

GUMMOW J:   But it is going to be a 10‑story block of flats.

MR EMMETT:   Yes.

TOOHEY J:   It is implicit, is it not?

MR EMMETT:   One does not know what the change will be.  There may be a change; there may not be.

BRENNAN CJ:   You mean, the Club members will cease to go there.  They will all be up in their flats?

MR EMMETT:   No.  I do not suggest that at all.  But the question of the intensification has simply not been an issue.  If it is, then it means that an application will have to be made in respect of the Century Plaza land, subject to the argument about the easement, so long as ‑ perhaps I should put that proposition here.  Our first answer to that proposition is that the land to which the application relates is lot 1, together with the easement, and the owner of that is the owner of lot 1, and that owner has consented to this application.  Now, there may be that the intensification of user is such as to constitute excessive user of the right of way.  That, however, is nothing to do with the planning laws; that is to do with a private right that the owner of the servient tenement always has standing to restrain excessive user of the right of way.

What we say is, if in fact this application does involve an intensification in that sense, the land to which that intensification relates is the incorporeal hereditament comprising the right of way and consent has been given by the owner of that “land”.  The detailed material indicates the nature of the access.  There are, as my learned friend said, four separate easements.  In a sense, one needs only to look at one of them because the same principles would apply to each.  That is, each of them is an incorporeal hereditament forming part of the fee simple, in effect, of the dominant tenement.

TOOHEY J:   In putting the argument in the way that you have just been putting it, Mr Emmett, can I take it that you are not relying upon the notion that because the easement is in general terms, that anything short of an excessive use of the easement is really quite irrelevant.

MR EMMETT:   Yes, that is right.  The terms of the easements are set out ‑ ‑ ‑

TOOHEY J:   In other words, you are adopting that sort of line of reasoning from the Court of Appeal, are you?

MR EMMETT:   The reason why that appears, I think, is because we put it to them below.

TOOHEY J:   But it is really to transport some notions of property law relating to the private rights of the parties as between themselves into the planning statute.

MR EMMETT:   No, in our submission it is quite the contrary.  That is, in effect, what is the substance of the way in which the Council puts it.  What we say is, looking at this argument, the definition of “land” includes the incorporeal hereditament, and the owner of that has consented.  To that extent it incorporates property concepts, but that is only by reason of the definition of “land” in the Interpretation Act.

BRENNAN CJ:   Can I take you back to that?

MR EMMETT:   Yes.

BRENNAN CJ:   Because, even though the terms of the Interpretation Act seem to be quite general in their application, would they not be read down in their application to a specific piece of legislation if, from the context of that specific legislation, a different meaning were to be interpreted to be attributed to the word “land”, on the basis of general provisions give way to special ‑ ‑ ‑

MR EMMETT:   We accept that you have to read the Environment Planning and Assessment Act as a single piece of legislation as though that

definition were inserted in it, and it may well be that the general definition has to take second string to some other inconsistent specific provision of that Act.

DAWSON J:   May I understand what you are putting when you are putting this particular argument, you are saying that you have applied.  If there is going to be an intensification, you have applied for permission to intensify because your land includes the easement.

MR EMMETT:   That is correct, yes.

DAWSON J:   So that is it.  It is cadit quaestio.

MR EMMETT:   That is right.  If, having done that, the private law rights spring up, then Century Plaza
 who, of course, is not a party to these proceedings, might say, “Hang on, what you’re going to do, whether or not you’ve got consent for it” - if we do not have consent for it we cannot do it anyway but, if we have got consent for it, they might nevertheless say, “What you are doing is an excessive user.  You are interfering with my private rights and I have got a perfectly good equity to restrain you from doing so”.

DAWSON J:   That is a different thing.

MR EMMETT:   That is a different matter altogether.

BRENNAN CJ:   I was putting to you a different proposition, as I think you ‑ ‑ ‑

MR EMMETT:   I thought you might be, your Honour.

BRENNAN CJ:   I am suggesting that “land” in this Act means only the phenomenon.

MR EMMETT:   That being so, that then takes us back to section 84.

BRENNAN CJ:   Yes.

MR EMMETT:   We say, in the light of the scheme of section 84, how could one say that the land to which this application relates is anything other than that triangular piece of dirt.

BRENNAN CJ:   That depends on the meaning of “use” then in “development”, does it not?

MR EMMETT:   No, with respect, because if we have made an application for development and we have limited it to that rectangular piece of land, then the Council might say, in the exercise of its discretion, “You cannot really, as a practical matter, have this development without some other development on another parcel of land, so we will impose as a condition of granting consent to lot 1 that you make an application for development consent of the neighbouring land”.

DAWSON J:   That really takes you to Pioneer, does it not?

MR EMMETT:   It does.  Perhaps I should go to Pioneer.

DAWSON J:   It would be helpful.

MR EMMETT:   There are three reasons why, in our submission, Pioneer has nothing to do with this case.  The primary reason is that Pioneer was concerned with a scheme which is quite inconsistent with section 84.  If your Honours look at page 489 the relevant issue, as Sir Harry Gibbs formulated it, arose out of the provisions of section 22 of the Queensland Act.

DAWSON J:   The factual situation was that ‑ ‑ ‑

MR EMMETT:   The factual situation in Pioneer was that a related company of the applicant owned a large parcel of land.  The applicant was going to build a quarry on one part of it and build a road giving access to that quarry along with that parcel to join up with some public roadways.

DAWSON J:   Over the land of the related companies.

MR EMMETT:   All of the land was owned by the related company.  There was only one landowner, and the application was being made with the consent of that landowner, but the application was limited to the quarry land.  So we only making application in relation to that bit of land there, being the quarry.  They did not make an application in respect of the roadway.  The legislation relevantly provides, as appears at page 489 of the judgment:

Notice of the application shall be served by the applicant on the owner of any land abutting on the land to which the application relates -

The applicant served notice on its related company saying that is the only land abutting on the land to which the application relates.  What the Court was concerned with was whether or not this requirement for notice had been complied with.  The majority - Sir Harry Gibbs was in the minority - but the majority said when you look at the definition of “use” in the Queensland Act it is a very wide definition because it includes ‑ ‑ ‑

BRENNAN CJ:   Page 502.

MR EMMETT:   Yes, page 502.  It is the second part:

“‘Use’ - In relation to land, includes the carrying out of excavation work -

et cetera:

The term includes any use which is incidental to and necessarily associated with the lawful use of the land in question;”

What was decided there was that the building of the roadway - which is quite different from ours, we are not contemplating any actual physical thing being done on the Century Plaza land - but on the land owned by the related company was proposed to construct a roadway, and the use of the quarry was impossible without the construction of that roadway.  It is apparent, in our submission, when one considers the judgments of the majority, that what their Honours were concerned with was that extended definition of “use”; namely, as including a use which is incidental to, and necessarily associated with the lawful use of the land in question.

If your Honours look at what Mr Justice Wilson says at page 514, about a third of the way down the page:

However, in my opinion, it is not open to an applicant arbitrarily to nominate a limited area of land and thereby restrict the range of incidental uses which he must disclose in his application.  Rather the converse is true.  The extent of the land in respect of which an applicant must seek consent is dictated by the proposed use including all incidental uses necessarily associated with the primary use in respect of which consent is required.

What is significant is that is being said in a context where the application just related to some part of one parcel of land.  It is quite different from this case where the application relates to the whole of a single parcel.  Then, towards the bottom of the page, about halfway through that paragraph it begins to this point:

I would conclude that the proper construction of the legislation requires that the word “use” in the phrase “the use desired to be made of the land” and in the phrase “the nature of the proposed use” be understood to include any use which is incidental to and necessarily associated with the proposed use.  The extent of the requirement of express disclosure of these incidental uses is a matter to which I shall refer later in these reasons, but the significance of the extended concept of “use” to the requirement that the application for consent must set out “a full description of the land” is the point of critical importance in the present case.

It was critical so far as Sir Ronald Wilson was concerned that the applicant purported to say, “I am just making an application for use of the quarry and I will limit my application for the moment to that, and therefore I do not have to notify the adjoining owners of the land, in particular, the adjoining owners of the land on which the roadway was to be constructed.

DAWSON J:   What would the reasoning be if the facts had been a little different and, in fact, the applicant owned the quarry land but merely had an easement over the access road?

MR EMMETT:   He would still need consent, in any event, because there was going to be work carried out on the access road.

DAWSON J:   But they would be two different applications?

MR EMMETT:   There would be different applications, yes.

DAWSON J:   That was the way Sir Harry Gibbs approached it, even on that legislation, yes.

MR EMMETT:   That is right.  That is how he analysed it, even though there was only one owner.  But, assuming as we must, that Sir Harry was wrong in that instance, nevertheless, it is clear that the critical concern, so far as the majority was concerned, were these two things:  one, that the definition of “use” included that extended meaning, as meaning things incidental; but secondly, that what the applicant was purporting to do was to carve out a little bit of the land which was owned by a single owner on the basis that he then only had to notify the same owner as being the abutting owner.  In a sense, maybe one is being unfair, but one gets the impression that somebody was being a bit too smart and the Court was not going to stand for that.  However that may be, the reasoning of the majority, in our submission, was clear.  When one considers those two matters, coupled with the fact that what the Court was concerned with in that case was the giving of notice to abutting owners, which indicates that the scheme of the legislation that was there under consideration is quite different from that which your Honours are considering, which includes section 84.

I think I have already referred to the final matter, that is the question of the order that ought to be made, assuming that your Honours might uphold the Council’s contention.  It is really just an indication that one might need to look at the terms of any relief that is granted, quite apart from the question that Justice Gummow raised as to precisely what order ought to be made.

BRENNAN CJ:   Have you any submissions to make as to what order should be made if the Court should be against you?

MR EMMETT:   In our submission, the order would be the same as that which was made by the Court of Appeal, namely that the matter should be remitted to the Land and Environment Court for consideration in the light of whatever reasons your Honours give.  If that sparks an application to amend the application further, then that can be dealt with by the Land and Environment Court.

BRENNAN CJ:   Yes.

MR EMMETT:   The other matter that I did wish to raise with your Honours, and I know there is not much one can do about it, is the question of the timing of the matter.  That is another reason for referring to the matters I did in the first place.  That is that until such time as these questions are resolved, the development is held up.  We know that your Honours will deal with the matter as promptly as is commensurate with your Honours’ other duties.

In the outline we refer to the model provisions as indicating the legislative background to sections 76 and 77.  Can I hand up a copy of those model provisions?  The relevant paragraph is paragraph 3 at the bottom of the third page where a distinction is drawn between application:

for permission to use a building or work or to use land -

in which case you have to identify the land to which the application relates. 

Secondly, if the application is for permission to use a building or work then you have to identify the land to which the application relates.  The use of that same expression in that context, in our submission, is really consistent only with the sort of approach that we have adopted and there is no indication that sections 76 and 77 are intended to bring about any change of policy in terms of effectively conferring upon an adjoining owner a right of veto.

BRENNAN CJ:   This is put in as part of the statutory historyof the provision, is it?

MR EMMETT:   Yes, your Honour.  I am reminded, we also dealt with the question of the characterisation of this development as “road”.  Perhaps I should say something briefly about that.  The complaint that is made by the Council seems to be that what is involved in the exercise of the rights is different from what is being done before.  This is what we understood was put, at least in the documents in support of the leave application, that one has to look at not just access as the use, but access for residential purposes, on the one hand, or access for Club purposes on the other; and that there is a change of use because up until now the right of footway, et cetera, has been used for the purposes of access to Club and not access to residential purposes.  We say that is not right because Century Plaza itself is a residential building, so that at the moment there is no reason to think that the rights of access are not used both for residential purposes and for Club purposes.

Secondly, we say that when one looks at the LEP in question, which has to be brought into operation in order to determine whether or not there would be a contravention of section 76, there is a definition of “a use” being “use of roads”.  Could I take your Honours to the LEP?  At page 160 is the description of the purposes for which use may be carried out with or without consent for Century Plaza land which, as my learned friend said, is zoned residential 2(c).  Your Honours will see at about line 23 that one of the uses is “road”.  “Road” is defined at page 152 as “pathway or thoroughfare”.  The short proposition, we say, is that one does not look to see what the object of the users of the pathway might be; one looks to see what is actually being done on it.  We say there is simply no change at all, if change be relevant, because it is still being used as a roadway as defined, both before and after.  What we say is that this application does not involve any different use, in that sense, of the Century Plaza land, than is involved at the moment.  May it please your Honours.

BRENNAN CJ:   Thank you, Mr Emmett.  Mr McClellan.

MR McCLELLAN:   Firstly, my friend’s reference to, and analysis of his argument, having regard to section 84, we would respectfully submit, ultimately assists the appellant’s position.  True it is that special provision has been made in the Act in relation to the details to be provided by way of environmental impact statement and notification of persons in relation to designated development.  But, that is to isolate a particular class of development, the consequence being that the statute provides no protection, on my friend’s argument, unless the development application relates to designated development.  In those circumstances it is not hard to see, we would submit, that section 77 was intended to provide the relevant and specific protection in relation to land which was owned by persons and when the application related to that land, irrespective of whether or not the application was for designated development or for some other purpose.  Section 77 bespeaks, in our submission, a far wider protection, and one which one can justify logically and for good policy reason when the application, whatever be its characteristics, relates to a stranger’s land.

With respect to the question of intensification, there is in the evidence at a number of places evidence of the consequences, in planning terms, of the Club’s proposal.  In the clearest terms, that amounts to an intensification.  I could give the Court the references to that material, if that is appropriate, or perhaps I, with leave, might provide them in a short written document.

BRENNAN CJ:   Is this findings or evidence?

MR McCLELLAN:   It is evidence, your Honour.  There is no express finding that I could point to - I do not know, with respect, that anyone would ever have assumed otherwise, but that if you are going to create a ten‑story residential flat building, you are going to intensify the use of the pedestrian and other access ways.

BRENNAN CJ:   That may be so, and that is what I had assumed, but Mr Emmett says that problem has never arisen.  It may be that it may have been assumed not to have arisen, but if the result of this appeal were to turn on the existence or otherwise of a necessary intensification as the result of the proposed building on the subject land, then we would lack, would we not, at present, any finding of such a necessary intensification.

MR McCLELLAN:   Your Honours, if I might take the Court to page 89 of the appeal books, is part of the statement of environmental effects which is a necessary requirement in the making of the application, and there you will find a description of what is proposed - particularly between 10 and 15, I think, there is a description of the increased activity.  That is the applicant’s own application.

BRENNAN CJ:   But going by which way?  Out to the Warringah Expressway?

MR McCLELLAN:   No, your Honour, the pedestrian way is through the Century Plaza land.  Your Honour, certainly one of the planning issues that was debated, and with respect, until my friend said what he said today, I had never imagined it was other than accepted by all parties that ‑ ‑ ‑

BRENNAN CJ:   I can understand that, but even looking at what you just pointed to, I do not see that there is any reference to the use of Century Plaza land.

MR McCLELLAN:   Page 72 of the appeal books, again in the same document, the last paragraph there.  What that is talking to is the plan on the following page, page 73, which I took the Court to earlier, indicating the driveways, residential entries and vehicle driveways and so on.

BRENNAN CJ:   Page 73 is concerned only with the Warringah Expressway, is it not?

MR McCLELLAN:   No; your Honour might remember I drew attention to the driveway shown, the residential entry, vehicle driveway shown all along the Club land, and the stairways then, your Honour.

Might I then pass to one of the problems that has emerged in relation to the question of use?  This Court, in Royal Newcastle Hospitalv Council of the City of Newcastle (1957) 96 CLR 493, and then (1959) AC 248. The question the Court may remember in that case was whether or not land which was truly vacant and not physically used - nothing physically constructed on it; no access given to it - whether or not it was nevertheless used for the purpose of the hospital. The Court found that it was. The same principle was applied in Parramatta City Council v Brickworks.  I do not know that I immediately have the reference for that.  I think it is 100 CLR, where again, your Honours might recall the question was whether or not land upon which no activity at all had taken place was nevertheless being used for the purpose of the brickworks, it being kept in store for some later exploitation.

BRENNAN CJ:   These were not planning cases, were they?

MR McCLELLAN:   They were planning cases, your Honour, yes.

BRENNAN CJ:   The Royal Newcastle Hospital was not.

MR McCLELLAN:   It was a rating case but the concept was the purpose for which the land was used.

BRENNAN CJ:   Yes.

MR McCLELLAN:   That case has been used and relied upon in Parramatta v Brickworks (1972) 128 CLR 1 to the same effect, and, with respect, underpins the law in relation to this concept of use, making claim that land may be used even though no physical activity is occurring on it at all. It follows that when, as here, in our submission, it is proposed to use the Century Plaza land in the way described,as a consequence it falls within the defined meaning of “development” within the Environment Planning and Assessment Act.

My friend then advanced the proposition that there was no change of use occurring and he embraced the proposition that because nothing is physically being done, in the sense of nothing is being created, there is no relevant change of use.  We have, of course, respectfully put the contrary argument which depends, of course, upon the true analysis of the purpose for which the Century Plaza land will be used in the future.  We submit for the new Club purpose and for the purpose of the residential flat building proposed on the Club land.  With respect to Pioneer Concrete ‑ ‑ ‑

BRENNAN CJ:   Can I just ask you this, if there was no residential proposal but only a refurbishing of the Club premises, perhaps with an extension of a lounge room or video room or something of that sort, what would be the situation then?

MR McCLELLAN:   Well, it would depend, of course, on the facts of the particular case but if your Honour contemplates that there will be no change in the character of the use ‑ ‑ ‑

BRENNAN CJ:   No intensification of the use.

MR McCLELLAN:   Well, in that event, the consent that you have will operate to make lawful the activity.

BRENNAN CJ:   Be it so, what does it say about the relation of the application for such a development to the Century Plaza land?

MR McCLELLAN:   Ultimately, your Honour, if there is an application for the Centruy Plaza land, which depends upon the access over the - sorry, I ‑ ‑ ‑

BRENNAN CJ:   No, what I am suggesting is simply an application to extend the Club in some minor manner.

MR McCLELLAN:   Well, then, your Honour, the section operates to require the consent of the owner of the land to which it relates which, I think depending upon the facts, would extend to Century Plaza.  It must do.

BRENNAN CJ:   Even though it is the same use as exists at the moment.

MR McCLELLAN:   Yes, it must do because the Act operates in relation to any development application.  The Act does not seek to discriminate between the consequences of the particular application, it operates in relation to all. 

With respect to the Pioneer Concrete decision, my friend did not read to the Court the passage in Justice Stephen’s judgment at page 502.  Might I draw attention to it?  His Honour there having quoted from the definition of “use” makes plain that in his judgment the additional words of inclusion have no consequence.  About the middle of the page he says”

Even without the aid of this definition I should have thought that the applicant’s proposed use must have been regarded as necessarily extending to more than the extraction and processing of quarry products -

and with respect, that must be so.  It depends upon the proper identification of the elements of the proposed use and, as we have submitted, that involves looking at both the dominant and ancillary activities which takes you to the Food Barn and Lizzio analyses and all that his Honour is doing there is anticipating the analysis which this Court embraced in Lizzio and that is that when you come to define a development you do not just look at the dominant activity, you look at all necessary incidences which arise.  If that includes access then that becomes part of the development and, indeed, carries the same denotation so that my friends argument that what is here occurring is a road, we would submit, is wrong.  What is here occurring is the use of the Century Plaza land for the two identified purposes; it being access for those dominant activities. 

With respect to the definition of “land”, it is our submission that this Act, being a planning Act, is concerned with the way in which land is used and is not concerned with other rights which might relate to the private arrangements between individuals.  As a consequence, the definition would be read so as to ensure that those who own land have the protection which section 77 embraces, even if they have given over some rights in relation to their land to another.

BRENNAN CJ:   Who is the owner of the easement land?  Century Plaza, you would say?

MR McCLELLAN:   I would say Century Plaza.

BRENNAN CJ:   Why do you that the Club is not also the owner of the easement land?

MR McCLELLAN:   Well, your Honour, I can respectfully accept that it might be but the Act operates in relation to the owner which, on any view, with respect, includes Century Plaza.

BRENNAN CJ:   It may include, but what if you have the consent of the Club which is an owner of that land?

MR McCLELLAN:   That does not fulfil the statutory obligation.  We could test it this way:  if, in fact, there was a separate right by easement granted to a stranger, that person may also be an owner but relevantly, the protection of section 77 would extend to that person as much as it would extend to Century Plaza.  The Act is, with respect, operating to protect all who have the interests of owner, within the definition, in the land. 

I am sorry, there is one further point in relation to Pioneer.  As I understood the discussion, it was suggested that the outcome in Pioneer would have been different if the land over which the access was to be created was owned by a stranger to Pioneer.  We would respectfully submit that would not be the case.  That case was concerned with identifying the characteristics of the use which included access and if that access was across the land of a stranger then it would have made no difference to the result.  The Court would have nevertheless said that the application failed because it did not include the relevant land, the related land and, accordingly, notification not being given. 

If my friend’s ultimate submission here is that he still needs consent for the use of the Century Plaza land which at one point he seems to be saying then, of course, that does not ultimately resolve the issue that lies between us at the present time, but if that is the position that he is adopting, we would respectfully submit that makes plain the wisdom of the submissions which we put.  If he accepts that it is necessary to obtain consent to use the Century Plaza land, then that makes plain that that consent should have been sought as part of this application, thereby giving rise to the operation of section 77. 

Now, in relation to the relief, might I just say this.  These proceedings arise under the provisions of the Environmental Planning and Assessment Act which entitled the party to bring a question of law to the Court and by reason of the way the matter was dealt with in the Court of Appeal the relief sought was framed to ask that the matter be referred back. 

As far as the Council is concerned, if the Council was to succeed we would not be troubled by my friend’s application that this Court deal with the matter in that way.  He is suggesting that there may be some means by which his client might then seek to argue that there can be a modification of the application, thereby keeping this application alive.  The Council’s purpose is not to frustrate any legitimate endeavours of Ligon and, accordingly, would abide an order in that form in this case.

GUMMOW J:   In other words, you do not press page 378 of the appeal book?  Take it to specifics, Mr McClellan.

MR McCLELLAN:   We would ask that the appeal be upheld, your Honour, and yes - no, I would press for what is there sought.

GUMMOW J:   It says:

The Judgment sought.....is that -

What does that mean?  That is not an order.  It is a declaration.

MR McCLELLAN:   Yes, that has been framed perhaps inappropriately.  What was sought was a determination which ‑ ‑ ‑

GUMMOW J:   Well, we do not determine things, we make judgment, make orders and declarations.

MR McCLELLAN:   I appreciate that.

GUMMOW J:   We do not give advice to people.

MR McCLELLAN:   No, I appreciate that, but the difficulty arises because of the form of the proceedings which entitles one only to raise a question of law.  One cannot in class 1 proceedings seek declaratory relief.

BRENNAN CJ:   What you would want, if you look at page 375, I should have thought, was that the Court in this case allows the appeal from the Court of Appeal and in lieu of the order of the Court of Appeal, orders 1 and 2, in accordance with the order of the Court of Appeal and changes 3 to “this Court” instead of “that court”.

MR McCLELLAN:   Yes, I am indebted to your Honour.  If the Court pleases.

BRENNAN CJ:   The Court will consider its decision in this matter.

AT 12.41 PM THE MATTER WAS ADJOURNED