PAG Services Pty Ltd v Byron Shire Council

[2003] NSWLEC 100

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Land and Environment Court

of New South Wales

CITATION:	PAG Services Pty Ltd v Byron Shire Council [2003] NSWLEC 100
PARTIES:	APPLICANT PAG Services Pty Ltd RESPONDENT Byron Shire Council
FILE NUMBER(S):	10744 of 2002
CORAM:	Pain J
KEY ISSUES:	Question of Law :- whether the Court could be satisfied that prior adequate arrangements had been made for the provision of sewerage services to the land - whether there was an agreement between the parties for the supply of sewerage services - Applicant asked Court to determine question by not dealing with issue of "adequacy" - Court declined to answer question of law - mixed question of fact and law that could not be determined in absence of evidence of "adequacy" namely capacity
LEGISLATION CITED:	Byron Local Environmental Plan 1988 cl 45
CASES CITED:	Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370
DATES OF HEARING:	20/03/2003
DATE OF JUDGMENT:	03/24/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr JJ Webster SC SOLICITORS Stacks the Law Firm with Halliday & Stainlay RESPONDENT Ms S Duggan (barrister) SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10744 of 2002

Pain J

24 March 2003
PAG SERVICES PTY LTD
Applicant
v
BYRON SHIRE COUNCIL
Respondent
Judgment
1. The Applicant has raised the following question of law:
For the purposes of Clause 45 of the Byron LEP there was an agreement between the Applicant and the Respondent for the supply of sewerage by the Resolution of Council on 24 April 2001 that the remaining ET's shall be allocated in accordance with the date of receipt of Development Applications which included the subject application.

2. As a result of directions by Bignold J the following sentence was added to the question of law:
In determining this Question of Law the capacity (spare or otherwise) of the Sewerage Treatment Works is not to be considered as an issue by the Court.

3. Clause 45 of the Byron Local Environmental Plan 1988 (the LEP) states:
That Council shall not consent to the carrying out of development on any land to which this plan applies unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land.


4. I will incorporate the statement of facts dated 19 March 2003 handed up in Court by the Council’s counsel which both parties were prepared to adopt for the purposes of this question of law before me. The statement of facts was as follows:
1. Development application for PAG Services was lodged with the Council on 7 March 2001 and sought approval for the Development of a 20 Units building on Lots 10 and 11 in DP 112553 and Lot 12 in DP 111328.

2. The subject Land is zoned 2A under the Byron Local Environment Plan 1988.

3. On 19 September 2000 Byron Shire Council made a Resolution, in part as follows:
"The Council acknowledges the existence of spare capacity at the West Byron Sewerage Treatment Plant" A copy of the resolution is annexed and marked B [sic A] .

4. On 1 March 2001 the Mayor prepared a press release which appeared in the local newspapers and the front counter of Byron Shire Council on 6 March 2001, a copy of which is annexed and marked B.

5. On 24 April 2001 the Council passed a Resolution as follows:

"That Council for reasons of equity allocate any spare capacity that should emerge in either the west Byron or Bangalow STP's after the date of public notification as advised in the Echo and at the front counter on 6 March 2001 to development applications received after that date in chronological order, that is according to the date of receipt".


6. The Development Application by the Applicant was put on public exhibition between 28 March 2001 and 14 April 2001 and that notification of public exhibition was advised in the Byron Shire Echo of 27 March 2001.

7. The Development Application was refused by Notice of Determination dated 9 November 2001.

Copies of the two annexures referred to in the Statement of Facts are attached to this judgment.


5. I also note that ground 6 of the Council’s notice of refusal was to the effect that the Applicant’s proposal was prohibited pursuant to cl 45 of the LEP as prior adequate arrangements had not been made for sewerage services for the proposed development.

Preliminary issue
6. The Applicant is arguing that the Resolution of 24 April 2001 is a prior arrangement under cl 45 of the LEP. The Applicant seeks to separate from its argument the issue of adequacy, which is essentially referred to here as capacity and was so referred to in argument by the Applicant’s counsel, which it considers can be dealt with as a separate issue of fact. The Applicant is asking the Court to assume adequacy, or not to deal with adequacy I should say, for the purposes of this point of law.

7. The Respondent Council opposes this approach. The preliminary points of law were amended at the direction of Bignold J while he was Duty Judge to exclude issues of capacity from the consideration on the Applicant’s application. The Council submitted that it was not agreed to by it at the mention before Bignold J.

8. The Council essentially submitted that I am not precluded from finding that, as a matter of statutory construction, the existence of a prior "arrangement" can only be decided if this includes consideration of matters of adequacy, in this case called capacity.

9. I will simply note that even if there is disagreement between the parties as to precisely what was said before Bignold J it does appear that his Honour made no determination on the substance of the matter when he was deciding the process by which the Court should hear the Applicant’s question of law as Duty Judge. It is essentially able to be considered afresh in relation to the statutory construction issue before me, so that it is open to the Council to take up the issue as to whether it is valid to consider the matter on the basis that capacity is put to one side.

10. The decision of Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370, in which the Court of Appeal had to consider an appeal from a decision of Talbot J in this Court was relied on by both parties. In Codlea Stein JA (Handley and Sheller JJ agreeing) noted that under cl 45 of the LEP there was a condition precedent to the granting of consent that Council be satisfied that "prior adequate arrangements have been made" for the provision of sewerage services to the land. It was held that the requirement of Council's "satisfaction" that prior adequate arrangements have been made for the provision of sewerage services to the land was a function the Court could exercise but that it was not for the Court to exercise the function of the making of the prior adequate arrangements. That was in the province of the Council: see 376 - 8.

11. The legal question essentially before me, applying Codlea , is whether the arrangement under cl 45 exists for these purposes.

Applicant's argument
12. The Applicant particularly relied on the decision of Stein JA in the Court of Appeal in Codlea where his Honour approved Talbot J’s description in this Court in relation to the arrangement under cl 45 as being "a willingness on the part of the relevant authorities to co-operate in a consensual way that may bring the scheme to fulfilment" (at 378). Stein J also held in Codlea that (at 378):
It is true the arrangement under cl 45 need not have been implemented. But they still have to exist and must pre-exist the "satisfaction" of the council with them. They are prior arrangements which have been made. And they must exist to council’s satisfaction prior to the consent.


13. It is not necessary that there be a binding contract or agreement but there must be something in the nature of an understanding between two or more persons, a plan or arrangement which may not be enforceable at law. The Applicant said that applied to the circumstances before me.

14. It was said that the consequence of the resolutions and public statements by the Council which have been referred to in the statement of facts and the Council’s Resolution of 24 April 2001 concerning the allocation of spare sewerage capacity from a particular sewerage treatment plant, does not give the Applicants a legal right to enforce allocation, but nevertheless did amount to a "Newton-type" arrangement whereby it was agreed that, provided the allocation was available and a development did not exceed the calculated spare capacity, then the Council did agree to provide sewerage services to that development.

15. The Applicant claimed that its application did fall within this arrangement in that it had an application before the Council at the relevant time, the prior applications had not exhausted the allocation of the spare capacity and on the basis of first come, first served the Applicant’s development being next in time after 6 March was entitled to be considered as being entitled to that unexhausted spare capacity.

Council's argument
16. The Council argued that there was a refusal of the Applicant’s development application and ground 6 clearly shows the Council is not disclosing a willingness to bring any scheme of arrangement, if it existed, to fulfilment.

17. Council argued that the arrangement could only be conditional at its highest and could only be satisfied if there actually is capacity and that this was not a part of the case argued here by the Applicant. Further, in any event, the Council argued there was no such arrangement because the Applicant had misunderstood the context of the Council’s resolutions and public statements. If these were considered in context, these resolutions and public statements made it clear that the 24 April 2001 Resolution was highly conditional on matters such as whether there was identified capacity and the Court should make no assumptions in relation to this.

18. There was no indication that an agreement had been made or that anyone would enter into any agreement through the Council’s resolutions, for example, that of 1 March 2001. In that sense the resolutions were entirely prospective and not able to form the basis of an arrangement under cl 45. The Court had no evidence on which it could be satisfied that any spare capacity would, of right, be allocated to the Applicant.

19. The Council also argued the 24 April 2001 Resolution means that if a development application is dealt with in accordance with its lodgement date, those lodging it take a gamble if it is lodged and it was not a guarantee or any arrangement under cl 45 that spare capacity would be allocated to the Applicant.

Finding
20. The fact that the Council chose to refuse the development application as it did, and stated in ground 6 that cl 45 applied so as to prohibit the development, is not on its own conclusive that no arrangement could exist. It will always depend on the circumstance of a particular matter as to whether cl 45 is satisfied in the sense of "satisfaction" that prior adequate arrangements have been made. I do not accept the Council’s argument on that ground.

21. I do, however, otherwise agree with one of the Council’s key preliminary submissions and that is I do not consider it is possible to separate out capacity/adequacy from this issue under cl 45. The wording that "prior adequate arrangements have been made" cannot be separated as the Applicant has sought to argue in my view, namely by putting aside whether adequacy is satisfied and ignoring issues of capacity in determining whether prior adequate arrangements have been made.

22. The issue in this case does appear to be very much a question of mixed fact and law and should not be separated as the Applicant proposes. It does require evidence of capacity in order to determine whether cl 45 is indeed satisfied in terms of satisfaction of prior adequate arrangements being made.

23. My preliminary view is that the Council’s Resolution of 24 April 2001 which the Respondent seeks to rely on is clearly relevant, amongst other matters, to the determination of whether cl 45 is satisfied. I cannot finally determine this issue in the absence of further evidence in relation to capacity/adequacy.

24. I therefore decline to answer the question of law raised for determination. As the parties requested I agree that the matter should be referred to the judge who finally hears this matter for final determination. In terms of final orders I will simply make an order that the Applicant’s notice of motion is to be dismissed.