Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services (No 3)

[2012] NSWLEC 57

Land and Environment Court

New South Wales

Medium Neutral Citation:	Quarry Products (Newcastle) Pty Limited and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No. 3) [2012] NSWLEC 57
Hearing dates:	14 February 2012; written submissions 17 February 2012 & 22 February 2012; Mention 29 February 2012
Decision date:	21 March 2012
Jurisdiction:	Class 3
Before:	Sheahan J
Decision:	Separate question answered 'YES". See also orders and directions in [120]-[123].
Catchwords:	CONSTRUCTION AND INTERPRETATION: Development consent given in 1979 - principles of construction - incorporation of documents.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Land Acquisition (Just Terms Compensation Act) 1991 Land and Environment Court Act 1979 Local Government Act 1919
Cases Cited:	AGC (Advances) Ltd v Road and Traffic Authority of NSW (1993) 30 NSWLR 391 Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; (2006) 148 LGERA 439 Allandale Blue Metal Pty Ltd and Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services [2011] NSWLEC 242 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Besmaw Pty Limited v Sutherland Shire Council [2003] NSWLEC 181; (2003) 127 LGERA 413 Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121; (2007)154 LGERA 117 Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359; (2007) 159 LGERA 57 Halglide Pty Ltd v P T Ltd (1990) 71 LGRA 215 Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 Hornsby Council v Devery [1965] NSWR 939; (1965) 12 LGRA 34 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth (1994) 51 FCR 213; (1994) 85 LGERA 37 Kendall Street Developments Pty Limited v Byron Shire Council [2004] NSWLEC 227 Kindimindi Investments Pty Ltd v Lane Cove Council and Anor [2005] NSWLEC 398 Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44 Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45; (2002) 122 LGERA 347 Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196; [1963] 1 All ER 459 Mosman Municipal Council v Denning & 2 (Ors) [2002] NSWLEC 227 Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876; (2008) 162 LGERA 322 Owners Of SP 39204 v Sutherland Shire Council [2003] NSWLEC 255; (2003) 129 LGERA 364 Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632; (1972) 27 LGRA 102 Perry and others v Hepburn Shire Council and others [2007] VCAT 1309; (2007) 154 LGERA 182 Project Blue Sky Inc and Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Quarry Products (Newcastle) Pty Ltd and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No. 2) [2012] NSWLEC 32 R v Ashford Borough Council ex parte Shepway District Council [1998] EWHC 488 (Admin); [1999] PLCR 12 Randwick Municipal Council v Broten (1964) 10 LGRA 271 Reysson v Roads and Traffic Authority [2011] NSWLEC 153 Ryde Municipal Council v The Royal Ryde Homes and Anor [1970] 1 NSWR 277; (1970) 19 LGRA 321 Slough Estates Ltd v Slough Burough Council and others (No 2) [1971] AC 958; [1970] 2 All ER 216 Stebbins v Lismore City Council (1988) 64 LGRA 132 Council of the City of Sydney v Pink Star Entertainment Pty Ltd [2008] NSWLEC 176; (2008) 160 LGERA 251 Tip Fast Pty Ltd v South Sydney City Council [2002] NSWLEC 85; (2002) 120 LGERA 292 Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited [2008] NSWLEC 185; (2008) 160 LGERA 20 Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council and Anor [2010] NSWLEC 10 Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333 Westfield Management Limited v Perpetual Trustee Company Limited & Anor [2006] NSWCA 245 Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited [2004] NSWLEC 551 Weston Aluminium Pty Ltd v Environment Protection Authority and Another [2007] HCA 50; (2007) 82 ALJR 74; (2007) 156 LGERA 283 Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17; (2001) 130 LGERA 508 Wollongong City Council v Australian Iron and Steel Pty Ltd (1988) 67 LGRA 51 Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244
Category:	Separate question
Parties:	Quarry Products (Newcastle) Pty Limited and Allandale Blue Metal Pty Limited (Applicant) Roads and Maritime Services (Respondent)
Representation:	COUNSEL: Mr J Webster SC and Mr M Seymour (Applicant) Mr P Tomasetti SC and Mr N Eastman (Respondent) SOLICITORS: Sparke Helmore (Applicant) Blake Dawson (Respondent)
File Number(s):	30851 and 30853 of 2010

Judgment

Introduction

1. This judgment deals with a " separate question " ordered by Biscoe J in these two class 3 proceedings on 28 November 2011. (See His Honour's reasons [2011] NSWLEC 242).

1. The two cases have been travelling together. They concern the respondent's compulsory acquisition of land owned by the applicant Allandale and leased by it to its related company, the applicant Quarry Products, for the purpose of a quarry. The companies are apparently controlled by the Frost family (Tp3, LL20-30), and the lessee company may discontinue, if agreement can be reached on costs.

1. The applicants contend that the acquisition will sterilise their " valuable resource ", but the respondent contends that the area which may be quarried, strictly in accordance with the relevant development consent ('DC'), is more restricted than that asserted by the applicants. The respondent says that the area to be quarried cannot be expanded without a further consent, the grant of which could be problematic, given that it involves " designated development ".

1. This could become very important, as any use of land affected by the acquisition, beyond what enjoys consent, might have to be disregarded for compensation purposes, by virtue of the Land Acquisition (Just Terms Compensation) Act 1991 s56(1)(c).

1. The separation of the relevant question was sought by the respondent and resisted by the applicants. The question arose out of town planning advice obtained by the respondent, and the possible use of town planning evidence in the substantive hearing is a matter which remains in dispute between the parties. Biscoe J said (at [5]):

"The respondent argues that if it is correct in its construction and the existing development consent is limited to the area of the circle, then the applicant would need a new development consent to quarry outside that area and within the acquired land; and in that event the respondent would need to call expert evidence relating to ecology, rivers and (consequently) surveying, all aimed at establishing that such a development consent would not, or would be unlikely to be granted. If, however, the respondent is correct in its construction, the cost of that expert evidence would be avoided and there would be a substantial saving in costs and time at the hearing."

1. His Honour relied on Reysson v Roads and Traffic Authority [2011] NSWLEC 153, agreed to separate a question, and framed it in these terms (at [13]):

Whether development consent No 118/679/23 granted by Cessnock City Council on 8 May 1979 for the Allandale Quarry

(a) only permits quarrying within the area of the circle labelled "proposed quarrying area" on the Indicative Plan for Quarry Products Pty Ltd development application dated 26 March 1979, or in the alternative

(b) is void for uncertainty.

1. At the hearing of the separate question on 14 February 2012, the respondent did not press question (1)(b), as determinations of such " uncertainty " questions usually involve discretionary considerations. (See Tp8, L41-p9, L20, and p41, L44 - p42, L11 and Besmaw Pty Limited v Sutherland Shire Council [2003] NSWLEC 181; (2003) 127 LGERA 413, at [163], per Talbot J.)

1. Accordingly, this judgment addresses only the issues of whether or how the 1979 consent should be construed, so as to define the " physical extent of the quarry that is authorised by " it (issue 5 in the Statement of Issues filed 30 November 2011), and whether or not reference should be had to other documents, such as to a plan/map/diagram, which accompanied the relevant development application ('DA'), in that construction process.

1. The respondent argues that the " circular label " on the applicant's " indicative plan ", is " expressly, or impliedly, incorporated into the consent, and becomes part of it" (T14.2.12, p42, LL43-45).

1. The parties are in general agreement on the principles that emerge from the authorities regarding the incorporation into consents of " extraneous " documents, for the purpose of construing those consents, whether given under the post-1979 regime in the Environmental Planning and Assessment Act 1979 (' EPA Act' ), or under the earlier regime under the Local Government Act 1919 ('the LG Act' ).

1. However, the parties are in serious disagreement as to which of those authorities is most relevant or analogous to the factual circumstances of the present case.

Background

1. The subject quarry is located on land in the Allandale district, within the Cessnock Local Government area. It is common ground that a quarry required and continues to require a DC, as well as an Environment Protection Licence. The only relevant DC is one granted by Cessnock Council to Quarry Products, on or about 8 May 1979 , in response to a DA submitted on or about 29 March 1979.

1. The relevant statutory and planning contexts of that time are not in dispute. The DA and DC pre-dated the re-writing of the State's planning regime in 1979, and its subsequent refinement, so the relevant statutory provisions for DC in this case are to be found in the LG Act , as it then stood, specifically part XIIA, and the relevant planning instrument of the day was the Northumberland County District Planning Scheme Ordinance , proclaimed 7 December 1960 (the 'PSO' - Tab 4 of Exhibit A1 ).

1. The EPA Act provides that prior consents, such as that involved in this case, " continue in full force and effect " (see discussion in Hillpalm Pty Ltd v Heavens Door Pty Ltd ("Hillpalm") [2004] HCA 59; 220 CLR 472). In that pre- EPA Act era, any structures, as distinct from a land use, required a separate application and approval process.

1. Under the LG Act there was a two stage process - an in-concept approval was granted, with the detail to be assessed and defined in and by a building application process. Section 313 listed an extensive range of matters that a Council must take into consideration when approving the erection of a " building ".

1. Section 342G of the LG Act gave Councils such as Northumberland the power to prepare a " scheme " with respect to defined land within its area, which scheme included provisions for regulating and controlling the use of land, the purposes for which land may be used, and a range of matters relevantly including the opening, classifying, etc of roads; minimum standards for roads; drains, etc; provision of services; reservation of sites for water reservoirs; the regulation of subdivision; the regulation of building; the protection of areas in respect of fires; the zoning of land; and the prohibition, in any zone, of the erection, construction, carrying out or use of any structural work upon the land, or the use in any zone of any land for any specified purpose or for any purpose other than a specified purpose.

1. Clause 12 of the PSO contained the relevant Zoning Table. It is unclear whether the subject land was zoned Non-urban 'A' or Non-urban 'B', but, in either event, it is clear that a quarry use required approval. Clause 3 contained a series of definitions. Unlike the Model Provisions, which commenced in 1981, there was no specific definition of " quarry ", but relevant definitions in the PSO were as follows:

"Extractive Industry" means industry or undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on.

"Extractive material" means sand, gravel, clay, turf, soil, rock, stone and similar substances.

1. Part V of the PSO (clauses 21ff) dealt with consents. Clause 21 provided (emphasis added) that any application for consent under the PSO " shall be made in writing and shall be accompanied by the following plans and particulars ". The sub-section went on to give great detail as to what was required, such as the necessity for plans to be in triplicate, including (in cl 21(1)(b) a plan " sufficient to identify the land to which the application relates and showing the location of the building or work to the boundaries of the site " . One of the arguments between the parties is whether, in the pre-1979 environment, these requirements were " directory", or " mandatory ". (See [66]-[67] below).

1. Clause 22 dealt with " consideration of applications generally ". It applied to any application to erect or use a building or carry out or use a work or to use land, and the consent authority was required to consider the character and siting of the development in relation to adjoining development; the size and shape of the subject land; any representations made by any statutory authority; " the existing and future amenity of the neighbourhood "; " circumstances of the case and the public interest "; and " the provisions of the scheme ".

1. Clause 23 made specific provision in respect of " certain applications " - (a) waterways and roadways, railways, public reserves, etc.; and (b) extractive industry or mines. It included the following:

Where application is made to the responsible authority for consent or approval:

...

(b) to erect a building, to carry out a work or to use land for the purposes of any extractive industry or mine, the responsible authority shall take into consideration the advisability of imposing conditions to secure the reinstatement of the land, the removal of waste material or refuse and the securing of public safety and amenity of the neighbourhood.

Clause 23(c) dealt with impacts such as noise, vibration, waste water, etc, and Clause 23(d) dealt with " any other development likely to cause increased vehicular traffic on any road in the vicinity thereof ".

1. Clause 26 dealt with the determination of an application, in these terms:

(1) Subject to the provisions of this Ordinance, the responsible authority may grant an application unconditionally or subject to such conditions as it may think proper to impose or may refuse to grant an application.

(2) The responsible authority shall cause notice to be given to the applicant of its decision and in the case of a consent given subject to conditions or of a refusal, the reasons therefore shall be stated in the notice.

(3) An application shall be deemed to be refused if the responsible authority neglects or delays to give within forty days after service of the application or within such further period as may be agreed to by the applicant, a decision with respect thereto.

(4) Any consent given under this clause shall be void if the development to which it refers is not substantially commenced within twelve months after the date of the consent: Provided that the responsible authority may, if good cause be shown, grant an extension or renewal of such consent beyond such period.

What comprise the " Development Application documents " in this case?

(1) The DA Form

1. A standard DA form for Greater Cessnock City Council was used by the applicant for consent ( Exhibit A1 , tab 2). It described the " location " of the proposed development as Portions 177 and 198, Parish of Allandale, Harper Hill Road, Allandale. The proponent was named as Quarry Products Pty Ltd. The signature of applicant was completed by W Frost on 21 March 1979. The owner's consent was signed on the same day by L R Myers. The approximate dimensions of the " lot " were stated to be "approximately 500 acres ". The " present use " and the use as at 16 December 1960 were both described as " grazing ".

1. The proposed development was described as " change of use of premises ", and the nature of the proposed development was detailed as " blue metal quarrying with facilities including office, change room, weighbridge, workshop, crushing plant ". It was noted that, on approval, the premises would be used for quarrying and grazing. (The evidence suggests that the total area of the two portions nominated in the DA is 540 acres, and that the total area of the holding involving the two companies is close to 1,000 acres - see [34] below).

1. The " type of construction " was defined as " structures - steel frame, corrugated iron clad ", and the estimated cost of the development was $200,000. A workforce of ten is nominated.

1. Under the heading " General Information " the proponent wrote " see attached letter ".

1. The bottom of the printed form said " submit three copies of plans and ensure " various details were " included " on them.

1. The form was endorsed, by Council's stamps and notes, as having been received, with the appropriate fee paid, on 29 March 1979. The application number is shown as 118/6/79/23.

(2) The "attached letter"

1. Submitted with the standard form was a letter on Quarry Products letterhead (Toowoomba address), bearing date 26 March 1979. ( Exhibit A1 at tab 3). It comprised two and a half typewritten pages, plus an " Appendix " of two pages (numbered "4" and "5"), and a map described as " Indicative Plan for Quarry Products Pty Ltd development application 26-3-79 ". An enlarged copy of that plan/map was separately tendered ( Exhibit R1 ).

1. The letter itself relevantly includes (at pp 1-2) the following comments (emphasis mine):

The quarry operation would initially take place on areas in both portions 198 & 177 above the 60 metre contour level (see attached map). At a later date, extraction would move down to the 40 metre contour level which would allow natural drainage to continue to the existing creeks.

The crushing plant would be situated on portion 177 (see attached map) and initially would consist of a primary and a secondary crusher with the appropriate screening plant. At a later date a tertiary crusher would be installed with additional screens and bins.

Stockpile areas for finished products approximately 5 - 10 metres high would be required and would be located out of sight of passing traffic on Allandale Road.

The output of the proposed plant for crushing blue-metal would be approximately 100,000 tons per year depending on the market and we would expect to deliver 2,000 tons per week or approximately 30 - 40 truck loads per day.

We propose using Allandale Road as the main delivery road for requirements in the Maitland - Newcastle - Singleton area via the New England Highway.

Access Roads would be required on the property to the Quarry and crushing areas and to both Allandale Road and either Major's Lane or the Farley - Kurri Road. ( See attached map ) Since these alternative access roads require consultation with the neighbours concerned, we intend having discussions with them after receipt of development approval from your Council.

As our Company has tendered for the early supply and delivery of rock spalls to Dora Creek area, access to the Kurri Road, either through Major's Lane or the other access road is urgent. Accordingly we request approval to commence extractive operations to allow delivery of rock spalls if our tender is accepted.

The proposed maximum area involved in quarrying activities is 40 hectares as indicated in the diagram. Initially, only a small portion of this will be used - starting locations to be dependent on detail test drilling.

1. The letter goes on (pp 2-3) to make some arguments for the market requirement for such an operation, competitive pricing, and generation of local employment, and to introduce the Appendix, described (p3) as " a brief environmental comment on the project ", from which " it can be seen that due to the relatively remote area of the rock location and the large distance from residences, the quarrying operations should cause little reasonable complaint ".

1. The environmental notes which follow in the Appendix (pp 4-5) were quite detailed. Overburden of 3-7m would need to be removed and stockpiled, and would be used for fill on access roads and dam wall. Drilling would occur daily 7am to 5.30pm initially, and, after the Quarry development is over would be required on a 3-4 days per week basis. Blasting initially would be one or two blasts per day and, after development, 3-4 per week. Vehicles to be used were described.

1. The following comment was also included (emphasis added):

Area Involved

The total area that is suitable for quarrying is approximately 40 hectares of cleared, elevated grazing land in undulating country and practically out of view from the roads in the area. Roads are approximately 2km away whilst the nearest house is about 1km from the site. (See attached map).

1. Details were then given of change of landform, effluent control, visual effect, noise and vibration. In this latter respect it was noted (p5) that (emphasis added):

These operations will be taking place inside the boundaries of a property of over 1000 acres with heavily timbered and unoccupied adjoining properties (to the north & east) and undulating partly timbered grazing property to the south. ... This considerable distance and ground attenuation would reduce the Quarry noise to an acceptable level.

(3) The "indicative plan" of the land

1. The " indicative plan " (the 6th page in tab 3, enlarged in Exhibit R1 ) shows the " nearest house " the " proposed quarrying area ", and a " stockpiling and plant area ". It illustrates the contours of the subject land, ranging from 50 to 110, in and near those marked areas. Crown maps of the two nominated portions were added to Exhibit A1 (as tab 6B) by the respondent. Portion 198 has an area of 233 acres approximately, and portion 177 approximately 307 acres, giving the nominated " location " an area of 540 acres . The applicants' property as a whole comprises more than 1000 acres. A quarry area of 40ha (as nominated - [29] above), which converts to approximately 99 acres, represents a small proportion of both. It is apparently intended to excavate to 40m below natural ground level. The court infers that the " indicative plan " was the only " plan " submitted with the DA (c.f. [26] above).

The Council's Approval Document and its Construction

1. The " instrument of consent " (the preferred term of the applicants for a notification which predates the EPA Act ) is a letter from the Deputy Town Clerk to Mr M Frost as a Director of Quarry Products Pty Ltd (tab 1 of Exhibit A1 ). It bears reference number 118/679/23 (taken to be not significantly at variance with the marking on the DA form), and it is in the following terms (emphasis added):

Development Application 118/679/23 for a Blue Metal Quarry on Portions 177 and 198, Parish of Allandale.

Further to the above application it is advised that development consent is granted subject to the following conditions:-

1. Overburden be placed so as to form a permanent buffer between the operation and the nearest residents . This should be dressed with top soil and grassed.

2. Dams should be placed on creeks or gullies to act as silt traps and prevent siltation of creeks on neighbouring land .

3. Large areas of clay material should not be permitted to remain exposed, but should be dressed with top soil and grassed.

4. All buildings should be of dark green or earth colours.

5. Closet accommodation shall be provided for at the rate laid down by Ordinance 44. A septic tank shall be installed for the on-site treatment of sewage.

6. Waste material arising from the operations shall be disposed of to the satisfaction of the City Health Surveyor.

7. The applicant shall consult with the Soil Conservation Service and prepare a plan satisfactory to the Service for the control of erosion and for the restoration of quarried areas . The applicant shall adhere to the plan to the satisfaction of the Mines Department, Soil Conservation Service and Council. This condition shall cover the whole of the site including the provision of access roads.

8. The applicant shall retain ownership of all land within 1 kilometre of the quarry whilst the quarry is in operation .

9. Council will not permit the subdivision of land within the 1 kilometre area whilst the quarry is in operation .

10. The majority of timber in the paddock to the North East of the quarry shall be retained to act as a buffer .

11. That the applicants shall provide maintenance materials from the quarry suitable for:-

(a) The maintenance of road shoulders; and

(b) The repair of isolated pavement failures at the following sections of the road.

(i) Lovedale Harpers Hill Road between the quarry entrance and the New England Highway at Harpers Hill.

(ii) Weston Sawyers Gully Road between the junction of Weston Sawyers Gully Road and Old Maitland Road and a point 2.3 kilometres toward Weston.

Council agrees that the use of such materials will be made where it can be responsibly determined that the deterioration of the said roads was caused by haulage of materials from the quarry.

12. The applicant shall provide base coarse material for the construction of Majors Lane between the quarry access road and the junction of Majors Lane with Old Maitland Road. The depth of material shall be 100mm consolidated spread over the whole of the road formation.

In both conditions 11 and 12 above the applicant shall only be required to supply and load the materials at the quarry and shall not be responsible for the haulage of materials to the work site.

This approval relates to development or land use approval only and before any work is commenced in connection with any building it will be necessary for a building application to be lodged with, and approved by Council. The premises must also comply with the requirements of Council's Health Department.

...

1. It is to be noted that this instrument of consent is silent on specific geographical or volume limitations.

1. The fundamental difference between the parties concerns whether any of the various " DA documents " described above (at pars [22]-[34]), especially the " indicative plan ", are to be regarded as incorporated into the DC. The DA form completed in this matter takes you to the papers attached to it - " see attached letter " ([25] above) - for the features of the subject site, and of the development for which approval was sought.

1. The respondent submits that the DC is not " clear on its terms ", that the heading and the introductory paragraph of the " instrument of consent" are not sufficient to identify the approved development, and that the DA form, the accompanying letter, and its appendix including the plan are all incorporated expressly and also by necessary implication .

1. The applicants submit that the DC does not require augmentation by other documents, in order to be properly construed. The approval was expressed to be for a blue metal quarry, a use which would fall clearly within the definition of " extractive industry " under the PSO, as it includes " rock ... stone and similar substances ". The instrument of consent nowhere expresses, implies, or otherwise requires, that any other documents form part of it, not even the DA form.

The Submissions filed and made by the Parties

1. The original written submissions by the respondent on the separate question were prepared and filed by its solicitor, Michael Astill, on 21 December 2011.

1. The applicants' counsel filed detailed submissions in reply to them on 31 January, unpacking to some extent the principles stated succinctly by Mr Astill, and analysing some leading authorities.

1. The applicants were then confronted, immediately prior to the hearing, with more expansive " reply submissions " from senior and junior counsel for the respondent, also doing a detailed analysis of the authorities, but coming to a different conclusion. Because of the lateness of those submissions, and some subtle differences from Mr Astill's, it was appropriate, at the end of the hearing of oral submissions on 14 February 2012, to allow the parties to supplement their oral submissions with some added written responses/comments. Those submissions were filed on 17 and 22 February, and during a mention, coupled with an argument I heard about a Notice to Produce on 29 February (see Judgment (No. 2) [2012] NSWLEC 32), there was some further discussion about what should follow this judgment.

1. The general principles may be summarised briefly as follows (adapted from the Astill submissions). As a consent attaches to the land, care must be taken to ensure that it is framed in clear terms and that any conditions are specified with certainty. The primary approach to interpreting a DC is to examine the document(s) constituting the approval and construe it/them. The terms and conditions of a DC may, for example, be incorporated from another document, but only by express reference or necessary implication - the DC then becomes a composite instrument, which must be construed and considered as a whole. However, I would add here that mere reference to another document may not be sufficient to regard it as incorporated, and that implied incorporation must be seen as necessary to serve the need for proper construction when the actual terms of the consent are considered.

1. Plans are normally integral to a valid DA, so a DC must be read as including reference to the plans which accompanied the application, and are endorsed by the consent authority as " approved ".

1. In order to make sense of a DC, it is sometimes permissible also to have regard to other documents not expressly incorporated in it, in order to accurately identify the site and/or ascertain the subject matter of conditions, but such material cannot be relied upon to modify the conditions, their operation, or the restrictions or requirements contained in them, nor to extend the operation of a consent.

1. The respondent's case is that the " instrument of consent " in this case, although it includes twelve conditions, does not set out the nature or extent of the approved development, and leaves " untouched " things undoubtedly important to the operation of a quarry, e.g. the method of extraction approved, whether on-site processing of extracted material is permitted, how the material will be removed from the quarry, and precisely which part of the large site is to be used for what purposes associated with the quarry.

1. If that Council approval letter alone ([35] above) is to be regarded as the consent, the respondent says it is not possible to properly understand what development was approved, and it is, therefore, permissible, indeed necessary, to have regard to the " DA documents ", which comprised both the standard form and the accompanying documents it called up, providing the necessary information. Properly construed, the respondent submits, those documents confine the approved quarrying operation to the area so marked, and circled, on the indicative plan.

1. The applicants do not accept that the restriction carried through from the circle on the indicative plan to the DC. The applicants submit that, on the basis of the established tests, the court would not incorporate the application form, let alone the letter. Neither was expressly incorporated by the instrument of consent, and the indicative plan relied upon by the respondent was not marked in any way by the Council to suggest its incorporation in the consent. In order to construe the instrument of consent, reference to the form or the letter is not "necessarily " required.

1. Wilcox J, in his seminal text book, The Law of Land Development in NSW (Law Book Company 1967) said (at 380) that " extractive industries normally involve more than the mere winning of material - they involve the transport of that material, the destruction of vegetation, the disposal of over-burden and, frequently, the blasting of rock and crushing of material ". Such matters are, in the present case, addressed in the conditions imposed in Council's letter (see again [35] above).

1. Because each decided case relied upon by one party or the other turns upon its own facts, it is necessary for the court to review the authorities in some detail to identify their relevance to the present matter.

The Authorities

Watson 2008

1. I am content to adopt, as my starting point, Biscoe J's summary of the major authorities in his judgment in Neighbourhood Association DP 285249 v Watson ("Watson") [2008] NSWSC 876; (2008) 162 LGERA 322. His Honour, sitting as both an Acting Judge of the Supreme Court of New South Wales, and as a judge of this court, said (at [389]-[397]):

389. In construing a development consent, the development application and plans

or other documents accompanying a development application can only be

looked at if they are incorporated in the consent expressly or by necessary

implication and only where this is necessary for the purpose of interpreting the

consent. This principle has been repeatedly affirmed in the authorities. A

seminal statement appears in Auburn Municipal Council v Szabo [' Szabo '] (1971) 67 LGRA 427 at 433-434 (NSWSC) where Hope J held:

... in determining what a council has approved, one primarily looks at the

document constituting the approval, and construes it ... The terms of another

document may be incorporated in a development approval either expressly or by

necessary implication, but I do not think that it is possible otherwise to go to

documents outside the formal approval in order to determine what has been

approved. In particular, it is not possible to go to the form of application for

approval unless in some way that document has in whole or in part, expressly or

by necessary implication, been incorporated in the consent. On some occasions no

doubt there is such an incorporation. Thus, if an application were made and a

council did no more than approve the application, it seems to me that by necessary

implication the terms of the application must be incorporated.

390. In Parramatta City Council v Shell Company of Australia Ltd [' Shell' ] [1972] 2

NSWLR 632; (1972) 27 LGRA 102 (NSWCA) Hope JA (Jacobs and Manning JA agreeing) held at 637; 107:

... it is not permissible, in order to determine what development has been

approved, to construe the document constituting the approval in the same way as

if it evidenced some inter partes transaction, for development approvals operate,

as it were, in rem and may be availed of by subsequent owners and other

occupiers of the land. The nature and extent of the approved development must be

determined by construing the document of approval, including any plans or other

documents which it incorporates, aided only by that evidence admissible in

relation to construction which establishes, or helps to establish, the true meaning

of the document as the unilateral act of the relevant authority, not the result of a

bilateral transaction between the applicant and the council.

391. In Stebbins v Lismore City Council [' Stebbins '] (1988) 64 LGRA 132 the NSW Court of Appeal found that the notice of determination of a development application should have been read together with a plan accompanying the application, as the application was meaningless without the plan. In a joint judgment, Mahoney, Priestley and Clarke JJA held at 135-136:

The notice of determination of the development application should, we think, be

read together with the plan. The written form of application is meaningless unless

the plans accompanying it are considered as part of the application. Similarly

when the notice of consent refers to the determination of the development

application it must be referring to the application including the plans without

which that application would not be an application at all. The consent as granted

was to an application incorporating a plan on which, at the time of consent, a

marking had been placed showing that the development being approved did not

include the new entrance. Read together the documents returned to the appellants

informed them that the works shown on the plan were the subject of the

development consent except insofar as an amendment was required in relation to

the new entrance to the Bruxner Highway. The consent could not, in view of the

stamp, be regarded as allowing for development in that area in the precise terms

shown by the plan.

If the written notice of consent alone is to be regarded as the consent so that it

alone would appear on the public register the fact inescapably remains that it

could not be understood by a searcher without recourse to the application itself,

including the accompanying plans. The searcher wishing to gain a full

appreciation of the terms of the consent would then see a plan showing that no

approval had been given to the new entrance. The point is that consent was not in

fact given to the new entrance nor can the notice of consent accompanied by the

stamped plan be regarded as an unqualified approval of the application to develop

the new entrance as originally but no longer shown on the plan.

392. These and other authorities were reviewed in Hubertus Schuetzenverein

Liverpool Rifle Club Ltd v Commonwealth [' Liverpool Rifle Club '] (1994) 51 FCR 213; 85 LGERA 37(FCA) by Wilcox J, who concluded at 222; 46:

The authorities clearly establish that it is legitimate, in construing a development

consent, to look at the plans that accompanied the application. However, this may

be done only where the consent document expressly or inferentially incorporates

the terms of the application and only where this is necessary for the purpose of

interpreting the consent. For example, where the council simply approves an

application without describing the development, it is permissible to look at the

application to determine what it was that the applicant sought to have approved

(as in Szabo and Shell Co). It is not legitimate to look at the documents that

accompanied the application, or even the application itself, to contradict (whether

by way of extension or contraction) the scope of a consent stated in clear terms.

Stebbins is consistent with the last-stated proposition. On the view of the case

taken by the Court of Appeal, in order to learn the terms of the council's consent

it was necessary for a person to read the notification of consent in conjunction

with the copy plan endorsed by the council. When the documents were read

together, it became apparent that the unrestricted consent suggested by the letter of

notification was in fact given subject to the elimination of the new entrance.

Applying these principles to the present case, it seems to me that, if a question

ever arose as to what Liverpool City Council intended by its reference, in the

letter of 10 October 1973 or the subsequent formal consent, to club building, beer

garden or children's playground, it would be legitimate to look at the plan dated

January 1973 in which each of these facilities was graphically described. To look

at the plan for that purpose would be to use it to interpret the consent. But it is not

legitimate, in my opinion, to look at the plan for the purpose of extending the

consent; for the purpose of adding a facility that was not mentioned in the consent

document to those listed as approved. This would be to use the plan to contradict

the document, not to interpret it.

393. In Woolworths Ltd v Campbells Cash & Carry Pty Ltd [' Campbells' ] (1996) 92 LGERA 244 (NSWCA) at 249, Sheller JA held:

Development approvals operate for the benefit of subsequent owners and other

occupiers of land and denote the consent authority's unilateral act, not a bilateral

agreement between the parties. Generally, if the terms of the approval are clear, it

is not permissible to look to the application or to other documents which

accompany the application to qualify or contradict its terms. But if the approval

incorporates the application, the two must be read together ...

Beazley JA agreed with Sheller JA (I note that the LGERA report erroneously

omits Beazley JA's reasons for judgment).

394. In Winn v Director-General of National Parks and Wildlife [' Winn '] (2001) 130

LGERA 508 (NSWCA) at [2] and [3] Spigelman CJ accepted, and cited many

authorities in support of, the proposition that "documents accompanying an

application for consent are not taken as incorporated in the consent, unless

incorporated expressly or by necessary implication". Stein JA held at [199]:

As Hope J observed in [Szabo], in determining what development a consent authorises, one looks primarily at the approval and construes it. The reason for this is that a consent is issued in rem and it would be inconvenient, to say the least, if one had to have regard to a series of documents to know what the consent authority intended to approve. The consent may incorporate another document if it does so expressly (not here relevant) or by necessary implication. In Szabo, Hope J gave the example (at 434) of a council merely approving an application and no more. In such a case, the terms of the application would be incorporated by necessary implication. Szabo was applied by the Court of Appeal in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No 2] [' SSA '] (1993) 78 LGERA 404 at 407-408.

395. In Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Ltd [' Alcoa '] [2004] NSWLEC 551 Lloyd J held at [13]:

In accordance with settled principles in interpreting what is the subject of this

consent it is not permissible to look at any other document other than a document

either expressly or impliedly referred to in it. In this case it is permissible to look

at the plan referred to in condition 20 as forming part of that consent.

396. In Loreto Normanhurst Association Inc v Hornsby Shire Council

[' Loreto '] (2002) 122 LGERA 347 (NSWLEC) one of the two notices of determination which fell to be construed was in substantially the same form as the notices of determination of DA 18/90 and 66/92. The form was prescribed by the regulations. Bignold J held that each development consent expressly incorporated each development application: at [20]. His Honour went further and held that the comprehensive and detailed statutory regime "necessarily" meant that the development application (and its supporting materials) was incorporated in the development consent: at [30]. Loreto was cited with apparent approval in Sydney City Council v Pink Star Entertainment Pty Ltd [' Pink Star' ] (2008) 160 LGERA 251 at [86]; Tipfast Pty Ltd v South Sydney City Council [sic - ' Tip Fast' ] (2002) 120 LGERA 292 at [22], [24]; and Kindimindi Investments Pty Ltd v Lane Cove Council [2005] NSWLEC 398 at [52].

397. In Weston Aluminium Pty Ltd v Environment Protection Authority [' Weston HC '] (2007) 82 ALJR 74; 156 LGERA 283 at [17] the High Court found it unnecessary to

examine these principles:

Whether, as Alcoa submitted, reference may not be made when construing a

consent to anything but the consent itself and any documents incorporated

expressly or by necessary implication need not be examined. In particular, it is not

necessary in this case to consider what reference may be made to the development

application to which the consent responds.

1. His Honour found it unnecessary in Watson ([398]) " to consider the 'necessary' incorporation proposition (arising from the statutory regime) advanced in Loreto ", but he found it was impossible to understand the subject DA without looking at a particular letter from the Council which was in evidence. In turn, it was not possible to understand some subdivision terms used in the Council's letter, without looking at the DA, and the enclosed subdivision plans. In respect of one DC before His Honour, he found that the application and the plan were incorporated expressly or impliedly. (There were other incorporation arguments in that extremely complex matter).

1. I will return in more detail to some of the cases to which Biscoe J referred. However, some UK cases are also relevant, and should be put in the Australian context first.

UK decisions

1. In Miller-Mead v Minister of Housing and Local Government ("Miller-Mead") [1963] 2 QB 196; [1963] 1 All ER 459, the (UK) Court of Appeal dealt with an approval wider in effect than what was sought in the application, but it was " held not proper to use the application to cut down the ordinary meaning of the permission " (per Lord Reid in Slough Estates Ltd v Slough Burough Council and others (No 2) ("Slough") [1971] AC 958, [1970] 2 All ER 216 at 962). The status of Miller-Mead as a " root " of the established principles applied in Australia was acknowledged by the High Court in Hillpalm .

1. The respondent's submissions drew attention to the summary of the relevant line of English authority in R v Ashford Borough Council ex parte Shepway District Council ("Ashford") [1998] EWHC 488 (Admin); [1999] PLCR 12. Ashford summarises the principles in this way (at par [27] - most citations omitted, and some emphasis added):

27. The legal principles applicable to the use of other documents to construe a planning permission are not really in dispute in these proceedings. It is nonetheless necessary to summarise them:

1. The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see [Miller-Mead] ...

2. This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: ...

3. For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as "... in accordance with the plans and application ..." or "... on the terms of the application ...", and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: ...

4. If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: ...

5. If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue .. .

1. While that passage from Ashford does not refer specifically to Miller-Mead , other than in par [27](1), it refers extensively to Slough, in which Lord Reid said (at 962) that it was not proper to use the application to cut down the ordinary meaning of the permission (see [54] above). His Lordship went on to say, in Slough :

Of course, extrinsic evidence may be required to identify a thing or place referred to, but that is a very different thing from using evidence of facts which were known to the maker of the document but which are not common knowledge to alter or qualify the apparent meaning of words or phrases used in such a document. Members of the public, entitled to rely on a public document, surely ought not to be subject to the risk of its apparent meaning being altered by the introduction of such evidence.

1. Ashford goes on (at pars [45]-[46]) to deal with " recourse to resolve a particular ambiguity or inconsistency " in terms of using the application. Keene J said (at [46]:

I propose to deal with this as a matter of principle. It is important to recognise that when an application is being used for such a purpose, it is not being incorporated into the permission. This is a wholly different exercise from that involved in incorporation. The justification for such resort to extraneous material is to resolve a particular inconsistency or ambiguity. That being so, it would not be proper to regard other parts of the permission free from ambiguity as open to re-interpretation in the light of the application or, indeed, other extrinsic material. Such material is only being brought into play for a specific purpose. Such recourse does not make the application or other extrinsic material part of the permission generally. Otherwise the existence of an ambiguity on a single point or word in an otherwise complete and clear permission would mean that the extent of the development as a whole thereby permitted could be cut down by the application. That would be contrary to the general rule spelt out many years ago in Miller-Mead and endorsed by the Court of Appeal recently in Slough Borough Council v Secretary of State for the Environment . Moreover, any such exception to a general rule ought to be narrowly construed.

The development of the law in Australia

1. Returning, therefore, to the Australian cases, and their references to UK authority, the respondent points out that Miller-Mead was referred to not only in Szabo , but in the Liverpool Rifle Club case, to both of which Biscoe J referred, whereas Slough was referred to in Wollongong City Council v Australian Iron and Steel Pty Ltd ("AIS" ) (1988) 67 LGRA 51, and in Winn .

1. In AIS , Holland J avoided " an over technical approach to the meaning in the language used in conditions ". He held that documents incorporated by reference in the consent may be admissible to establish the true meaning of the document, and to confirm the opinion His Honour had formed of how it ought be construed. Reference to the Environmental Impact Statements in the recitals to the consent, while not expressly incorporating the contents, enabled such documents to be used for the purpose of identifying the matter under consideration, which resulted in the determination. It was permissible to look at the EIS for assistance in ascertaining the subject matter of the conditions, as distinct from adding to or modifying the conditions. His Honour referred to Ryde Municipal Council v The Royal Ryde Homes and Anor ("Ryde Homes") [1970] 1 NSWR 277; (1970) 19 LGRA 321 , Slough, and Shell . In referring to Shell , His Honour said (at 57):

Documents that are incorporated in the consent by reference are a permissible aid to construction as is 'evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council'. ( Shell at 107)

1. The approval in Winn was simply for the use of relevant land. It was a very complex case, involving mineral sands mining in the Hunter region. The issue before the Court of Appeal was identification of what exactly was authorised by the development consent. The court, applying Szabo and SSA, held that the consent and the conditions were sufficient to delineate it. Spigelman CJ said (at [4]):

A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.

1. It is worthy of note that, in Hillpalm, Kirby J specifically endorsed that paragraph of Spigelman CJ's judgment in Winn as correctly describing what had been accepted as settled law in New South Wales. To overturn it would require the adoption of " an exceedingly narrow approach to the meaning and operation of the EPAA which, contrary to its language, history and object, confined it effectively to an inter partes operation " (see Kirby J at [89]-[90]).

1. Spigelman CJ (in [31] of Winn ) listed a large number of conditions imposed, which he said made " detailed provision " for " control of every step in the process " involved in the mining operation. Then (at [36]) he said:

The proposal to mine over an area is, of its nature, a development the full implications of which cannot be determined in advance. It is a form of development which by its nature will frequently require a development approval to contain conditions which permits adaptation of the development to the environmental implications as they unfold. This is what occurred in the detailed provisions of the Conditions of Authority by which the Board and the Minister reserved a right to control the operations in extraordinary detail, down to the grant of permission for a dog to be present on the site.

1. Stein JA considered that, despite the comprehensive conditions imposed, the use actually approved was unclear, so the use described in the application form was incorporated as a matter of necessity. However, His Honour saw no necessity to go beyond that specific description, to incorporate letters accompanying the DA, which described the proposal in greater detail. His Honour said (at [200]-[202]):

200 When one examines the consent here in question, it is apparent that it is deficient in one respect only. It does not state the use which is being approved. The instrument of consent describes the location of the land the subject of the approval, and also refers to ML594, which had by that time been granted. It states that 'the application to use the above land has been ... approved, subject to any conditions that may appear in Schedule 1'. Reading the 67 conditions leaves no doubt as to the nature of the development being approved, and by necessary implication, the description of the development 'Mineral Sands Mine' in the development application is incorporated.

201 The submission of Mr Robertson goes further. He submits that the consent incorporates, by necessary implication, the letter from RZM to the Council dated 1 February 1978, which accompanied the formal development application form. This letter (and an enclosed plan) described the proposal in some detail. It is submitted that it is necessary to incorporate the contents of the letter, indeed also a subsequent letter to the PEC in support of obtaining its concurrence, in order to determine the scope of the consent. I do not agree. Leaving aside the necessary incorporation of the description of the development from the development application, as a mineral sands mine, nothing further is needed.

202 The consent and its conditions are sufficient to delineate what it was that the Council was approving. There is no justification or necessity to refer to the letter which accompanied the development application, or any other extrinsic documents, in order to construe the consent.

1. It would appear from that extract that the only omission from the approval was the actual name of the use approved. The outcome of the case was that all judges agreed that the matter should be remitted to this court, but Stein JA wanted to make three declarations, and remit only part.

Earlier Australian cases

1. Biscoe J commenced his summary in Watson with Szabo , but some earlier Australian cases are worthy of mention as well. (It should also be noted that Szabo was decided in 1971, but not reported until 1989).

1. In Randwick Municipal Council v Broten ('Broten') (1964) 10 LGRA 271, it was held by Else-Mitchell J that the Council had waived compliance with the rule that detailed plans were to be lodged. The failure to identify the plans approved did not invalidate the approval, because the focus was on merits issues. In Hornsby Council v Devery ('Devery') [1965] NSWR 939; (1965) 12 LGRA 34, Else-Mitchell J said (at [40]) that the Council could waive the requirement to send in plans and could judge the sufficiency of the required documents, for the purposes for which they were required, by the relevant clause of the instrument. The test there was that particulars provided needed to be sufficient to describe the proposal - a failure to observe an apparently mandatory requirement, e.g. for a plan, may not invalidate the consent.

1. In the present case the applicant relied upon Broten and Devery in support of a submission that the PSO requirements were directory rather than mandatory, a distinction which the respondent submits was " swept away by the High Court " in Project Blue Sky Inc and Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

1. In Ryde Homes (1970), the Council sought to restrain the approved use to certain hours of operation. Else-Mitchell J said that "... the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application ". Accordingly, there being no condition concerning operating hours, the approval was held not to incorporate the operating hours proposed in the application. His Honour said (at 323-4):

It was submitted ... that it was not necessary for all the conditions of a development consent to be incorporated in the consent or other document which purported to operate as a consent, and that in the absence of any limitation or express statement to the contrary the consent to the application should be read and construed as incorporating as conditions all the matters set out in the form of application.

I have no doubt that the first of these submissions is sound and that a consent can incorporate conditions contained in another document. But the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application. For one thing, many of the matters so stated are general matters of fact or assertions of intention furnished or made for the purpose of informing the council of the nature of the development, and for another, an application will often consist of or be supplemented by informal documents and even oral statements made by or on behalf of an applicant. Serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent, and problems would inevitably arise as to the real scope and tenor of any such consent.

In the present case, the fact that there was no formal consent was urged as a reason for treating the terms of the application as conditions of the consent, but that fact seems to me to point in the contrary direction; and indeed, for what it is worth, the only conditions recorded in the council's register are simply not capable of being construed in an extensive fashion.

It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but en-ures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title.

I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.

1. A few months later, Hope J decided Leichhardt Municipal Council v Terminals Pty Ltd ("Terminals") (1970) 21 LGRA 44, holding that it was permissible to refer to a document " incorporated into the public document of council evincing consent " in order to construe a public approval. His Honour said (at 50-1):

Whilst it is true that generally speaking regard cannot be had to extrinsic evidence, other than evidence to identify a thing or place referred to, in order to interpret a public document such as a planning approval, reference may be had to documents, the terms of which are incorporated into the public document: [Slough; Ryde Homes] . I say generally, for the basis of this view is that a planning approval operates for the benefit of successors in title to the owner who obtained the approval, and it would be quite inapt to alter the apparent meaning of the approval by reason, for example, of negotiations or correspondence between the original applicant and the council. The present approval purports to be limited to use by the defendant only, and its terms are fixed by reference to an inter partes deed. I am by no means clear as to the authority of the council to limit the approval to use by the defendant, but no point has been taken in respect to this limitation before me. It may be, however, that in a case such as the present one reference may be had to extrinsic evidence in those circumstances in which that evidence is admissible in relation to an ordinary inter partes document.

1. In Szabo , the issue before Hope J was whether additions covered by an approval could be used only for a particular purpose. Contrary to what Else-Mitchell J had decided in Ryde Homes , Hope J indicated that, if a Council did no more than approve the application, it seemed to him that by necessary implication, the terms of the application " must be incorporated ". (It is to be noted that in par 29 of the respondent's submissions in the present case, dated 13 February 2012, the passage from Szabo quoted by Biscoe J in Watson is inverted).

1. Biscoe J next referred, in Watson , to Shell (1972), in which the consent made no reference to filling of the site. Very limited plans were presented at the time of the approval and showed no levels. The Council contended that the relevant plan, on its true construction, depicted a service station sitting on the natural surface of the land, and not one on a level surface with some excavation or filling to achieve that result. Shell contended that the plans showed a service station on a flat or horizontal surface at a level approximating the level of the road to which it had frontages, and that filling was necessary in order to produce that surface. After the passage quoted by Biscoe J (at [51] (390) above), Hope JA said (at 107-8):

Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks. Construing the subject instrument of approval, I have come to the conclusion that the learned primary judge was right in holding that the development approved by the State Planning Authority was that of a service station on a flat or horizontal surface at a level approximating the level of the roads to which the site has frontages, and that it authorized any filling which was necessary for the purpose of producing such a surface. In addition to the matters to which he referred, I would add that it is apparent from the plan that aport from the surrounding garden strip, the service station was not to be stepped in any way, that is, it was not to be constructed at different levels on different parts of the land, for there are no marks on the plan which suggest that anything of this kind was intended. Furthermore, although no doubt there are service stations constructed upon sloping sites, the subject site was not one the surface of which sloped gradually from one end to the other; it has a very gradual slope over a large part of its area but a quite steep slope towards its north-eastern corner. It is in this corner that the plan shows provision for the off-street parking motor cars, the positions of the parking sites for single vehicles being marked upon the plan. The situation of these parking places strongly suggests to me that the plan was not intended to show that the surface of the service station should, in this corner, have that slope which the surface of the land had, but rather that it was intended to show a flat surface. The council has relied upon the garden strips shown in the plan to support its claim, but it seems to me that at the best the existence of these strips on the plan is equivocal, for they are quite consistent with "plantation areas" at ground level to screen the filling as well as the service station structures and activities.

1. Also in 1972, Pape J, in the Supreme Court of Victoria, decided Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works (" Weigall ") [1972] VR 781; (1972) 30 LGRA 333. A submission was made that the decision of the Town Planning Appeals Tribunal should be construed as incorporating the whole of a letter of consent, such that a further restriction was imposed on subdivision or use for detached housing. His Honour held (at 353) that:

The wording of the Tribunal's determination does not justify the view that they intended to incorporate the entire letter of consent into their determination. It is true that they refer to the letter of consent, but only for the purpose of identifying condition (1) set out therein, which says nothing of electricity services. Secondly, if the entire letter were to be incorporated Mr Voumard's suggested construction of the condition would not be in accordance with the opening paragraph of the letter, which seems to indicate that the Board had not determined presently to grant a permit subject to a condition, but had determined to do so in the future 'when reticulated water supply sewerage and electricity services are available'.

1. Biscoe J quoted also from Stebbins (1988) and Liverpool Rifle Club (1994), and his quotation from Winn (2001) referred to SSA (1993).

1. It is noteworthy that, in Stebbins, the Court of Appeal expressed approval of Else-Mitchell's classic statement in Ryde Homes, before making the point quoted by Biscoe J, namely that accompanying plans are crucial in construing the application itself.

1. Some other cases from the period 1990-94 are also worthy of notation.

1. In Halglide Pty Ltd v P T Ltd ("Halglide") (1990) 71 LGRA 215, Hemmings J held that it was permissible for him to have regard to plans specifically referred to in the DC, and that they were sufficient to make it plain that the DC was intended to provide for pedestrian access to two neighbouring shopping complexes. His Honour distinguished Ryde Homes, which he described as a legalistic approach to the construction of a consent prior to enactment of the EPA Act . His Honour said that plans accompanying the DA are most often taken into consideration and included as part of the approval, and he had no doubt that he had the power to go behind the consent document in order to construe it.

1. In SSA , the terms of the approval referred to both working plans, and an agreement between the parties. Handley JA accepted that both the plans in the agreement were incorporated, but not a letter which was also referred to in the terms of the approval. No relevant construction purpose was served by the incorporation of that letter - it served only to identify plans otherwise incorporated. His Honour said (at 407-8):

As a general rule development consents, being public documents operating in rem for the benefit of successors in title, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it: see [Terminals] at 50; ... H owever reference may properly be made to documents incorporated expressly or by implication into the consent. The relevant principles are conveniently summarised by Hope J in [ Szabo] at 433-434 where he said:

'The question arises whether, in order to determine what develop ment that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in [Ryde Homes] and by the Court of Appeal in [Miller-Mead] . It is apparent from these decisions that in determining what a council has approved one primarily looks at the document constituting the approval, and construes it ... it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in the development approval either expressly or by necessary implication but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved.' In that case Hope J held that plans and specifications described in the consent as 'attached' were incorporated in it (at 434).

1. AGC (Advances) Ltd v Road and Traffic Authority of NSW ("AGC") (1993) 30 NSWLR 391 was a case involving the provisions of an Environmental Impact Statement. It was held that they did not create any legally enforceable rights against the Highway Authority in respect of properties affected by the construction of the highway, but merely created an obligation to consult and negotiate with interested parties, with a view to reaching agreement if possible on specified matters. Cripps JA commented (at 399G):

Not even by the most elastic interpretation of the words used in the environmental impact statement could it be said that the RTA undertook any legal obligation to any identified landowners much less an obligation to the appellant .

1. Both sides in the present argument referred extensively to Liverpool Rifle Club (1994) , in which there was no dispute that a valid DC was given in 1973, and acted upon, but the description of the development in the consent included no reference to an outdoor rifle range, and the evidence did not demonstrate to the court whether the omission was deliberate, or accidental, or whether the Council was opposed to an outdoor range. The Club argued there was an implied consent for one.

1. Wilcox J quoted from Ryde Homes , Szabo , Miller-Mead , Shell , and Stebbins , but said it was not necessary to consider AIS and Halglide . One key point His Honour made, to which Biscoe J referred in quoting him, and which should be repeated now, was (LGERA report at 46):

It is not legitimate to look at the documents that accompanied the application, or even the application itself, to contradict (whether by way of extension or contraction) the scope of a consent stated in clear terms. Stebbins is consistent with the last-stated proposition. On the view of the case taken by the Court of Appeal, in order to learn the terms of the council's consent it was necessary for a person to read the notification of consent in conjunction with the copy plan endorsed by the council. When the documents were read together, it became apparent that the unrestricted consent suggested by the letter of notification was in fact given subject to the elimination of the new entrance. Applying these principles to the present case, it seems to me that, if a question ever arose as to what Liverpool City Council intended by its reference, in the letter of 10 October 1973 or the subsequent formal consent, to club building, beer garden or children's playground, it would be legitimate to look at the plan dated January 1973 in which each of these facilities was graphically described. To look at the plan for that purpose would be to use it to interpret the consent. But it is not legitimate, in my opinion, to look at the plan for the purpose of extending the consent; for the purpose of adding a facility that was not mentioned in the consent document to those listed as approved. This would be to use the plan to contradict the document, not to interpret it.

Post-2000 cases

1. I turn now to some of the cases decided in this State in 2000 and since .

1. In House of Peace Pty Ltd v Bankstown City Council ("House of Peace") [2000] NSWCA 44; (2000) 48 NSWLR 498, the Court of Appeal cautioned that the court should hesitate before using extrinsic materials when an instrument is capable of sensible construction on its own terms. Mason P said (at [37]) that " the search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having the characteristics referred to by Else-Mitchell J [in Ryde Homes] ... , it must speak according to its written terms, construed in context but having regard to its enduring function ." His Honour referred to Szabo with apparent approval of the " textual interpretative principles " as put in that case. He added (at [41]) " The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later ."

1. In Owners Of SP 39204 v Sutherland Shire Council [2003] NSWLEC 255; (2003) 129 LGERA 364, Bignold J held that each of the two consents involved expressly incorporated the respective DAs and considered those applications to determine what developments were authorised by the consents. His Honour applied Szabo and SSA . Both consents were issued well before the commencement of the EPA Act 1979. His Honour compared the descriptions of the proposed developments in each case.

1. Biscoe J referred, in Watson , to Lloyd J's decision at first instance (in 2004) in Alcoa . When that case went to the Court of Appeal - Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd ("Weston CA") [2006] NSWCA 273; (2006) 148 LGERA 439 - Basten JA observed that Lloyd J had adopted the approach Hemmings J took in Halglide , namely regarding Ryde Homes as legalistic, and distinguishing it because it preceded the EPA Act . Basten JA also referred to AIS . He said:

39 That conclusion has broad ramifications: it is common practice for a consent to refer to the application to which consent is being given. However, it is doubtful that the existence of a reference to another document in a consent is to be treated, generally, as incorporating the contents of the other document. In this respect, his Honour adopted the approach of Hemmings J ... in [Halglide] . In that case Hemmings J appears to have treated the approach in [Ryde Homes] as "legalistic" and as distinguishable because it, and those cases which applied it, dealt with consents which preceded the EPA Act: at p 219. In relation to an application under the EPA Act, his Honour appears to have preferred a more relaxed approach to incorporation by reference, said to be derived from the judgment of Holland J in [ AIS], at 57, although Holland J only referred to the application and the environmental impact statement to confirm the opinion he had already reached without reference to them: p 54. However, it is doubtful whether the result in that case could have been achieved by applying the principles established in [Ryde Homes] . There the Council had approved a development application for an industrial laundry, stating that it had "approved the development application". The application contained a reference to limited hours of operation; however, the Court held that, in the absence of an express condition to that effect, the hours of operation were not so limited.

40 To the extent that, in the present case, Lloyd J held that he could refer to the application and the environmental impact statement in determining the scope and effect of consent 81/254, that approach required the principle identified in [Halglide] to be applied, not because they were incorporated by the document recording the consent of the Council, but because they were referred to in the covering letter sent to the applicant. The document headed "Development Consent No. 81/254", contained no reference to the development application as such.

1. In Corowa v Geographe Point Pty Ltd & Anor ("Corowa") [2007] NSWLEC 121; (2007) 154 LGERA 117, Jagot J had to compare a construction certificate with a development consent. Her Honour determined that these issues should be resolved by proper construction of the two documents, and " application of the well-known principles " regarding manifest unreasonableness. Her Honour said (at [56], [57], [93], and [94]):

56 I consider that the "development" which the development application was "in respect of" at the time of determination, in this case, is best identified through the amended plans in fact approved in the consent, which were lodged in August and September 2004. ... Irrespective of the conflicting statements of intention in the statement of environmental effects and other documents, I am satisfied that this development included the removal of trees and vegetation inconsistent with the four elements of the development I have identified...

57 Section 78A(8)(b) focuses on the development proposed in the development application. ...Applicants for consent control the identification of the development for which they seek consent. They are responsible for any ambiguity in their own application. Given that fact and the function of s 78A(8)(b) in the statutory scheme, I can see no reason to resolve ambiguity in a development application on the most generous assumption to the applicant for consent. ... Accordingly, the development application at the time of determination was "in respect of" "development" involving the removal of all trees and vegetation from lot 121...

93 The resolution of that claim requires comparison between the construction certificate and the development consent before the construction certificate was granted (given the effect of s 80(12)). Mr Corowa's essential complaint is that the development consent required the development to be completed in accordance with the statement of environmental effects and figure 1.0 prepared by Blueland engineers dated August 2004, except where varied by the conditions of consent (see condition 1). ... [T]he Court "has no jurisdiction to cure administrative injustice or error"... The issues are to be resolved by proper construction of the development consent and construction certificate, and application of the well-known principles applying to claims of manifest unreasonableness. ...

94. In [AGC] , the Court of Appeal observed that whether statements of intention in an environmental impact statement under Pt 5 of the EPA Act could found a breach of the Act within the meaning of s 124(1) was a matter of some difficulty. I infer that the Court had in mind the range of difficulties recognised in [Ryde Homes] in the context of construing development consents - that "serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent". Here, of course, the Council elected to impose a requirement that the development be completed in accordance with the statement of environmental effects and a plan, except as varied by the other conditions; but the difficulty thereby created is the same as that identified in [Ryde Homes].

1. Her Honour went on (at [96]) to discuss Westfield Management Limited v Perpetual Trustee Company Limited & Anor ("Westfield") [2006] NSWCA 245, and dismissed Mr Corowa's claims that both the certificate and the consent were invalid. Westfield recognises that courts try to avoid uncertainty by adopting a construction which gives statutory instruments and decisions practical effect. Accordingly, mere ambiguity or uncertainty of meaning does not necessarily lead to invalidity. Westfield went on appeal to the High Court, but special leave was refused with a qualification regarding the proper approach to the construction of conditions. (See Preston J in Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Limited [2008] NSWLEC 185; (2008) 160 LGERA 20, at [66]).

1. Biscoe J mentioned, in Watson , that both Pain J in Tip Fast (2002), and I in Pink Star (2008), had cited Loreto " with apparent approval ". In fact, according to the headnote, Pain J distinguished Loreto in Tip Fast . In her judgment, Her Honour referred to many of the authorities I have discussed above. Loreto was decided just before the hearing in Tip Fast , and was drawn to Her Honour's attention while her judgment was reserved. Her Honour said of Loreto (at [22]-[25]):

22. The parties filed a Notice of Motion after the hearing of this matter in order to raise for consideration the decision of Bignold J in [Loreto] , which had been handed down a few days prior to this case being heard. In that decision his Honour was required to construe the contents of two development consents. His Honour found that the s 92(1) EP&A Act Notices issued in that case incorporated by express reference the development application in each case and, accordingly, it was legitimate to have regard to the terms of the development application and, in an extension of previous case law, additional documents which formed part of the development application, such as the statement of environmental effects. His Honour's stated reason for doing so was because of the detailed statutory regime in the EP&A Act and Regulations for the making and determination of a development application and the public availability of the register of development consents. The statement of environmental effects was required by cl 45 of the 1994 Regulation to accompany the development application and was relevantly part of the development application incorporated by express reference in the s 92(1) Notice. In his Honour's view, the significance of the detailed and comprehensive statutory regime in the EP&A Act had not been observed in the decided cases which generally referred to the situation pre-dating the EP&A Act. The decisions of the Court of Appeal in [Stebbins] and in [Campbells] were referred to in support of this approach by his Honour.

23. The cases cited by the parties emphasise that only in limited situations should additional documentation be relied on, essentially when there is clear incorporation of further documents on the face of the development consent.

24. I do not think that the Loreto decision assists the Respondent's case. The key factual difference is that in that case it was held there was express incorporation of the development application in the terms of the s 92(1) Notice. This is not the same situation as in this matter because I find that there is no express or implied incorporation of the DA, only the plans attached to the DA. While there is reference to the number of the application for development in the s 92 Notice, the wording of the Notice when viewed as a whole does not suggest that the DA is incorporated either expressly or by implication. I would describe the s 92 Notice as "self contained", including as it does the description of the application for which consent is being given and specific reference to the plan, accompanying the application. No additional documentation is needed to clarify the content of the s 92 Notice.

25. I find that the development consent consists of the s 92 Notice and the plans referred to therein. The DA and additional correspondence do not form part of the development consent. Therefore, the meaning of the development consent can only be determined by examination of its explicit terms and by reference to the plans. The consequence of so finding is that the DA itself and the additional correspondence which does make clear that crushing and screening is not included in the development consent is not relevant. The terms of the development consent and the plans submitted with the DA must therefore be considered.

1. In Pink Star , when I visited some of these issues, I said (at [86]ff):

86 The issue which causes the most contention when this Court turns to characterise a use is the extent to which in the particular case the Court can and should have resort to any extraneous documents or extrinsic evidence to assist in the construction of a consent or other relevant document. Another document can be relied upon only where, and to the extent to which, it has been incorporated into the consent, either expressly or by necessary implication - " passing reference " is not enough. See [Szabo] at 433-4 , [Shell] at 637 , [SSA] at 407 and [Winn] at 513. Sometimes it might be useful to have regard to the development application, but a development application will be incorporated only when it is expressly called up by the consent ( [Campbells], [Loreto]) .

87 Over time a use might evolve into something "different", but the courts might hold that there has been no " change of use ". Essentially, such is the issue in this matter - the Council says that " nightclub " is not a " restaurant " use, so it is not permitted by a restaurant consent. On the other hand, Counsel for the Respondent argues that just as " restaurant " may be characterised as a species of the genus "refreshment room ", so should "nightclub " be characterised as a late-night food, liquor and entertainment species of the genus " restaurant ".

...

100 These conditions are quite clear and specific. They meet the test of "saying what they mean and meaning what they say". Any ambiguity in a condition is to be construed not necessarily in favour of the holder of the consent but against the Council - see Mosman Municipal Council v Denning & 2 (Ors) [2002] NSWLEC 227 per Lloyd J at [8] and [16], relying on [Ryde Homes] at 324. See also [House of Peace] at [41]. I can find no ambiguity in the conditions of the 2002 consent. I rely on condition 2 as evidence of the grant of consent to the operation of a nightclub. I do not rely on condition 7 as granting such consent, but I do rely on it as confirming the intent of Council that such a consent be granted (or confirmed), with appropriate noise controls in place.

101 The Respondent argues that " by necessary implication " the 2002 consent must be taken to also incorporate the development application form upon the basis of which the consent was granted. That form makes clear that the application specifically proposes the use of the premises as a nightclub, and Council can legally impose only conditions which relate to the development which is the subject of the consent. I have concluded that I do not need to go that far, as the consent is clear on its face. Nor do I need to decide that s.81A(1) (par [8] above) applies to the 2002 consent (see discussion of s.81A by Beazley JA in [Grace v Thomas Street Café Pty Ltd (2007) 159 LGERA 57] at [110]-[127]). It would appear, at least prima facie, that the provision does so apply, as the ground floor was to be reconfigured in some way under the 2002 consent, but I do not invoke it in this case.

102 On their face the 2002 consent and its incorporated plans should be construed as approving the nightclub use.

1. I turn, finally, to my judgment in Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council and Anor [2010] NSWLEC 10. In that matter, as here, the parties were generally in agreement on what the authorities have decided in respect to how courts should construe DC documents, and I summarised the law as follows ([47]-[56]):

47 The construction of legal instruments, and the possible use of extrinsic materials in doing so, are regulated by s 34 of the Interpretation Act 1987, and the principles to be applied to the use of materials by the court in making findings of fact, generally, are dealt with in s 38 of the Land and Environment Court Act 1979. Both situations are to be contrasted with the established principles which govern the construction of DCs....

48 DCs are not normally drafted by people with legal expertise. They are usually " drafted by town planners, to be read by town planners and non-legally trained people ". They " must be read in a common sense way ", and " construed, not as if the words were the language of a statute, but from a practical viewpoint ", in order to " give effect to the obvious intention of the draftsperson " (per Lloyd J in Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227, at [12]).

49 The relevant principles were repeated and endorsed by the Court of Appeal in [Weston CA] , and adopted without comment by the High Court on appeal in [Weston HC]. They, therefore, remain as stated in [Ryde Homes], [Szabo], and [SSA] .

50 As summarised by Handley JA [in SSA] , the general rule is that:

"development consents, being public documents operating in rem for the benefit of successors in title, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. ... However reference may properly be made to documents incorporated expressly or by implication into the consent."

51 Mere approval of an application does not incorporate in that approval everything contained in or accompanying the application. As Basten JA observed in Weston CA : "[I]t is doubtful that the existence of a reference to another document in a consent is to be treated, generally, as incorporating the contents of the other document ".

52 Basten JA also relevantly held that there was nothing to stop a court looking at related development consents when construing a consent.

53 As Hope J had observed in Szabo (at 434):

"The terms of another document may be incorporated in the development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved".

54 His Honour also noted that the incorporation must serve a " relevant purpose ".

...

56 While there is common ground between the parties as to these clear principles of construction, one difficulty for the court in cases of this kind is to carefully distinguish documents appropriately considered to be " incorporated " in a development consent, from documents (such as related consents) to which, in certain circumstances, the court may have regard in order to understand the factual background to the consent. The leading cases also acknowledge that where a consent has been granted, but cannot be found, reference may be made to extrinsic materials to prove its contents.

Submissions

The Applicants

1. The applicants submit that reference to a document in a DC is not sufficient to achieve its incorporation into the consent - the incorporation must serve a purpose, usually clarification when the consent document is not capable of sensible construction on its own terms. Any ambiguity relied upon must be specific, and so must the extraneous document relied upon to resolve it (T14.2.12, p45).

1. The applicants submit that the instrument of consent in this case is " complete ", and, when read with the PSO, not in need of such clarification. The " reasonable reader " ( Ashford ), eg. an independent potential buyer making inquiries, or the hypothetical purchaser, would not need to go beyond it. Any objective third party reading the instrument of consent would understand that a blue metal quarry may be operated on the two lots of land described, on certain conditions (T14.2.12, p20, LL6-7). There being no condition limiting the area, the reader would not see any need to check other documents to infer some limitation on the scope of the blue metal quarry operation to which Council gave its consent.

1. The cases acknowledge that sometimes resort might be had to the application form, but here the application form merely confirms what is clear from the consent - approval of a blue metal quarry and various nominated ancillary facilities - and there is no case for the incorporation of any of the DA documents into the DC, let alone incorporation of the markings on a plan clearly described as " indicative " only.

1. The qualification " indicative " means that the plan cannot be seen or said to be determinative of limitations on the approved quarry. They cannot change the consent, nor impose "limits in truth on the grant of the DC " (See T14.2.12, p17, LL29-31; p20, LL1-3, and 10; and p42, LL41-44). The condition regarding the colour of buildings (condition 4, in [35] above) is clearly " indicative ", in the sense of being a recommendation rather than binding, as a separate building application was required under the LG Act regime. Likewise, the plan with the DA was " indicative ", in the sense of " informative ", or a statement of intention , rather than binding, and the Council chose not to impose on its consent any specific conditions stipulating the 40ha limit, production levels, hours etc.

1. The applicants rely on Winn , Loreto , Broten , and Devery. They say that the differences between the LG Act regime and the EPA Act regime - Ryde Homes was under the LG Act, and Winn under the new regime - make it easier to incorporate the DA into the DC under the later regime. The applicants distinguish Stebbins and Shell, upon which the respondents rely.

1. There are in this case no words of express incorporation, and no construction purpose which would require implied incorporation. However, if the plan were somehow to be incorporated, it must be read as consistent with the letter providing it, which stated that the quarry operation would take place " initially " on both portions, above the 60m contour level shown on the map, and move down over time to the 40m contour level. Those contours are shown on the two nominated lots, but lie outside the circled areas. So, neither the letter nor the circles demonstrate any clear intention that quarrying remain within the circled area.

1. What is approved by the consent is " the winning of material on those portions " (T14.2.12, p45, LL12-13), constrained only by the lot boundaries, and exhaustion of the blue metal resource. The conditions of consent, albeit " a product of their time " (T14.2.12, p47 L8), are clear, and incorporation of documents is not needed to sort out their meaning. They recognise the associated activities, and they include several express or implied limits on the quarry - it must be " on " the land described, and within a 1km buffer of land owned by the proponent. There is no necessity for an implied condition regarding geographical limits, arising from the indicative plan.

1. The respondent is seeking to have the markings on the indicative plan incorporated into the consent, as an implied condition of consent, thereby limiting the operations of the quarry activity, and Liverpool Rifle Club ruled that extraneous documents cannot be used to read down (or read up) a consent, unless its terms are not clear.

The Respondent

1. The respondent submits that the DA is expressly incorporated (or at least by necessary implication) into the DC, because:

(a) The word " further " in the first paragraph of the instrument of consent ([35] above) indicates that it is the land uses described in the DA to which the consent is directed;

(b) The consent, pursuant to cl 26(1) of the PSO ([21] above), is a consent to " the application " made; and

(c) The application made consists of all the DA documents, as clauses 21 and 26 of the PSO required an application to include a plan (showing the proposed work in relation to site boundaries), and full particulars of the development (see [18]-[21]).

1. The test is not whether, as the applicant submits, the PSO's requirements are mandatory or directory ([67] above), but what is " in law and fact actually approved ". Is it a blue metal quarry, or is it the application made for one? The respondent submits that the instrument of consent, in terms, says the latter.

1. The PSO does not define " quarry " or " blue metal quarry ", and those concepts can embrace many activities and impacts, and vary significantly in terms of scale and intensity. Also, as the cases say, the nature of the site and of the development must be clear . Hence the need for a consent authority to have and assess a plan and particulars. If the activities, extent and scope are stated in clear terms in the consent, the court cannot go beyond it. However, that is not the case here.

1. The respondent does not concede that the DC in this case is " clear on its terms ". The introductory paragraph in the letter of consent does not give much, or adequate, information. It tells the reasonable reader nothing of the content of the permission granted. The term " a blue metal quarry " does not provide adequate information for the reasonable reader. Not specified are " the operation(s) ", " the nearest resident ", " all [the] buildings ", " waste material ", etc. Conditions 8 and 9 speak of " all land within 1km of the quarry", and condition 10 of " the paddock to the Northeast of the quarry ", but the measuring point, the " quarry ", and/or the " work site " are not defined. Is it the whole of portions 177 and 198, or a smaller, identifiable part of them?

1. In this last respect, the respondent's submissions say (at par 18) that the reference to " quarry " should be to the smaller identifiable part of the portions, represented by the circle, rather than the whole of both of them: " if it was (sic) otherwise, the condition may imply that the applicant has to go out and buy all the surrounding land around portions 177 and 198. However, the word 'retain' suggests that the applicant already owns the land in the 1km buffer, and condition 9 seeks to prevent the subsequent subdivision of the land surrounding the quarry, while it is operating. So what then is 'the quarry'?" (See discussion in respondent's subs, pars 18 to 27, and T14.2.12, pp28-34).

1. All of these vital pieces of information (and some others which I have not listed in these reasons) are provided in clear terms in the DA documents (see [22]-[34] above), which make clear, in the respondent's submission, that the proposed maximum area involved in quarrying activities, as then contemplated, was and would remain 40ha, being a suitable area of " cleared elevated land " to be quarried, eventually, down to the 40m contour level, in accordance with the applicants' stated environmental practices.

1. The respondent's contention is that the proper consideration of the English cases, which inform Szabo and other leading Australian cases, is critical to an understanding of the term " necessary implication ". The respondent contends that, consistent with point 4 of the Ashford principles, ([55] above): where there is ambiguity in the wording of the consent, extrinsic material may be referred to " by necessary implication ", i.e. when it is necessary to understand the development, and to cure any ambiguity. The submissions say categorically that " necessary implication " is synonymous with the concept of curing ambiguity. The respondent has identified substantial ambiguities in the present consent, none of which it says can be resolved without recourse to the DA, and to the supporting documents it expressly incorporates.

1. The respondent contends that this submission is consistent with the English authorities ( Miller-Mead, Slough, Ashford ), and with Australian authority surveyed above. The submissions go on to refer to the similarity of this case to Shell, Stebbins, SSA, Winn, and Liverpool Rifle Club , in each of which recourse to extraneous documents was necessary, c.f. Szabo, where Hope J held that he could understand the consent, and extrinsic materials were unnecessary. (His Honour dealt with the question of necessity.)

1. The respondent's submissions in this matter express the opinion that if Hope J were applying similar considerations to the factual situation in the present case, he would have concluded, c.f. Szabo , that recourse to the DA was necessary, an approach consistent with what His Honour actually found and said in Shell.

Consideration

1. I have come to the firm conclusion that the respondent's submissions are sound and correct, and I accept them.

1. Properly construed, the consent here applies to the application made, not to a loosely described project, and the application made is adequately described only in the " DA documents ".

1. The consent, standing alone, is not capable of proper construction as to some of its necessary and important details. The most crucial details absent are the size and location of the quarry itself in relation to the land portions nominated in the DA as the location of the proposed development.

1. The councillors and Council officers would probably have been aware, at the time of approval, at least roughly, of where the nominated portions were, but only a map or plan can make the missing details clear to a post-approval reader. There are no grounds to impute such critical knowledge to any " reasonable reader " of the instrument of consent alone.

1. The inclusion of comprehensive conditions in a consent - and those imposed here, despite the level of detail on some aspects, are surely not " comprehensive ", at least in modern terms - does not preclude the court from going beyond the actual consent.

1. Necessary and important detail in the present case was and is contained in those DA documents, which stand as a single " package " pursuant to the requirements of the PSO, and all of them must be taken to be incorporated in the consent, including the marked-up plan, both " expressly ", and, to cure ambiguity, " by necessary implication ".

1. It is not always necessary to incorporate even the whole of the DA form. However, incorporation of the DA form alone in this case is not sufficient - it is not very detailed, and relies on the supporting letter, appendix and plan. The PSO means for all the " DA documents " to comprise the DA, and the court must have recourse to the whole DA.

1. The applicants sought approval to quarry the 40ha circled area on the plan, and no more, down to the 40m contour level. I do not believe that their use of the word " initially " is to be taken to mean that they sought, at that "initial " stage, approval to quarry the whole 500 acres, but would start only in the circled 40ha.

1. Any quarrying outside that 40ha area, even elsewhere on portions 177 and 198, would require consent, and does not have the benefit of that 1979 consent, properly construed.

1. So construed, the conditions of consent set out in the instrument of consent make sense. Read alone, despite every effort to give the DC a sensible meaning (T14.2.12, p44, L48), they do not spell out clearly what was approved (as in Winn ) - the subject of those conditions is the quarrying operation proposed in the DA documents, and identified in the plan (T14.2.12, p41, LL5-9 - see also Shell ). The nature of the site and location of the development must be clear.

1. I am also not troubled, in reaching my conclusion, by use of the descriptor "indicative " in regard to the plan/map. Mr Webster (T14.2.12, p20, LL9-11) sought to refer me " to the case in 154 LGERA where they talk about indicative ... ". In that volume of the Reports I could find " indicative plan " discussed only in Perry and others v Hepburn Shire Council and others [2007] VCAT 1309; (2007) 154 LGERA 182, a case in which the V.C.A.T reviewed a Council decision to grant a permit for a wind farm near Daylesford.

1. The application considered on that appeal relied upon a plan labelled " indicative ", which the tribunal accepted as accurately indicating the relative locations of the turbines approved. The plan here, I accept, was labelled " indicative " probably only because the locations circled were not accurately mapped according to surveyor " best practice ".

Conclusion

1. The answer to the separate question is, therefore, YES - the consent granted by Cessnock City Council on 8 May 1979 permits quarrying only within the area on the " indicative plan " included in the DA dated 26 March 1979, circled and labelled " proposed quarrying area ".

1. Further case management, and any directions regarding town planning evidence, are, properly, matters for the List Judge, and I decline to make any of the additional orders drafted and sought in the applicants' submissions filed on 22 February 2012.

1. For further case management, the matter is stood over to the List Judge's list on Friday 30 March 2012.

1. I also believe it appropriate to reserve costs.

1. All three exhibits tendered at the hearing of the separate question are returned.

Decision last updated: 22 March 2012