Rivergum Homes Pty Ltd v The District Council of the Copper Coast - [2004] SASC 376

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RIVERGUM HOMES PTY LTD v THE DISTRICT COUNCIL OF THE COPPER COAST
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
25 November 2004
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - CONSENTS, APPROVALS AND PERMITS - CONDITIONS
Appeal against the decision of the Environment, Resources and Development Court ("the ERD Court") - development application for dwelling - condition of consent that dwelling be set back 5.5 m from rear boundary - rear face of dwelling 5.5 m from rear boundary however balcony within the 5.5 m set back - Council issued an enforcement notice directing appellant to remove balcony - whether the condition should be construed in reference to accompanying plans - whether the terms of the condition are ambiguous and should be construed against the Council - whether the ERD Court considered whether or not in the circumstances the condition should be enforced - interpretation of development authorisations discussed - appeal allowed.
Development Act 1993 (SA) s 33, s 33(1), s 33(1)(a), s 33(1)(b), s 33(2), s 33(3), s 33(4), s 39(2), s 39(4), s 42(2), s 44(1), s 45(1), s 84, s 86(1)(d)(ii), s 88, s 89, s 89(3), s 97(1)(b); Development Regulations 1993 (SA) reg 42(4), reg 46(1), reg 47, reg 89(1)(a), reg 89(2)(b), reg 92(2)(a), reg 92(2)(c), referred to.
Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373, considered.

RIVERGUM HOMES PTY LTD v THE DISTRICT COUNCIL OF THE COPPER COAST
[2004] SASC 376
Full Court: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ: This is an appeal by Rivergum Homes Pty Ltd (“Rivergum”) against a decision of the Environment, Resources and Development Court (“the ERD Court”) which disposes of an appeal against an enforcement notice issued by the District Council of the Copper Coast (“the Council”) under s 84 of the Development Act 1993 (“the Act”).
The enforcement notice recited that the Council has reason to believe that Rivergum had breached s 32 and s 44 of the Act by undertaking development contrary to a condition of an authorisation, namely by constructing part of a dwelling, a balcony, within 5.5 m of the rear boundary of the land on which it stood. By the notice the Council directed Rivergum to remove the balcony.
Rivergum appealed to the ERD Court claiming that the balcony was not part of the dwelling and that the dwelling as constructed complied with the relevant condition of an authorisation. The ERD Court found against Rivergum and it now appeals to this Court.
The outcome of this appeal turns on the meaning and effect of the relevant condition. The condition is a part of a provisional development plan consent granted by the Council. It is referred to again in a development approval issued by the Council. Rivergum argues that the meaning and effect of the condition is that the dwelling as constructed does not contravene the condition and the enforcement notice should be set aside. Alternatively Rivergum argues that in all the circumstances the ERD Court should have declined to enforce the condition.
Background
By development application dated 26 November 2002, Rivergum, on behalf of Mr and Mrs Fantasia, applied to the Council for approval of a “proposed development” described as a “dwelling”.
The application was accompanied by four plans, a site plan, a ground floor plan, an upper floor plan and a plan depicting the elevations of the proposed dwelling. The plans reveal that the dwelling is of two storeys, with an attached carport at one side of the house. At the rear of the dwelling there is a balcony that extends 3.2 metres from the alignment of the rear wall of the dwelling and carport and across about half of the rear wall.
The site plan is a relatively simple plan of the proposed development and depicts the position of the proposed dwelling in relation to the boundaries of the land. Only the outline or footprint of the ground floor of the dwelling is depicted in the site plan. A line is drawn between the alignment of the rear wall of the ground floor of the dwelling and adjoining carport, and the rear boundary. The line has the figures 4700 adjacent to it which represents a distance of 4.7 metres. It indicates that the alignment of the rear wall of the dwelling and carport will be 4.7 metres from the rear boundary.
The ground floor plan is more detailed and shows the dimensions of the rooms on the ground floor of the proposed dwelling. Posts supporting the balcony (at its outer edge) are shown to be 90 mm wide and are positioned at a distance of 3.110 metres from the rear face of the dwelling. The dimensions of the ground floor plan indicate that the balcony including the posts extends a total distance of 3.2 metres from the rear face of the proposed dwelling. The distance between the balcony posts and the rear boundary of the property is not shown on the plan.
The upper floor plan shows the dimensions of the rooms of the upper floor. When this plan is looked at in conjunction with the ground floor plan it confirms that the balcony extends 3.2 metres from the rear wall of the dwelling. Again the distance between the outer edge or rear face of the balcony and the rear boundary of the property is not shown.
The fourth plan depicts the elevations of the proposed dwelling. It is clear from this plan, in particular the side elevations, that the balcony extends from the rear face of the proposed dwelling towards the rear boundary.
While not marked on any of the plans provided to the Council, the distance between the outer edge or rear face of the balcony and the rear boundary of the property, taking the width of the balcony into account, can be calculated and is a distance of 1.5 metres.
By a Decision Notification Form dated 11 December 2002 the Council granted provisional development plan consent subject to a number of conditions: see s 33(1)(a), s 40 and s 42 of the Act.
Condition 3 provides:
“The onus of ensuring that this building is sited in the approved position on the correct boundary as per the site plan submitted is the responsibility of the owner.”
Condition 8 provides:
“The dwelling is to be sited a minimum of 5.5 metres from the rear boundary.”
Rivergum then apparently amended the site plan by crossing out the figures 4700, and substituting for those figures the figures 5500, indicating an intention that the alignment of the rear wall of the proposed dwelling and carport be 5.5 metres from the rear boundary. The site plan was not otherwise altered and no alterations were made to any of the other plans.
The proposed alteration meant that the distance between the outer edge or rear face of the balcony and the rear boundary would be 2.3 metres.
The plans were then referred to a private certifier to be assessed against the provisions of the Building Rules as required by s 33(1)(b) of the Act, with a view to the grant of a provisional building rules consent.
Section 89 of the Act and reg 89(1)(a) of the Development Regulations 1993 (“the Regulations”) authorise a private certifier to assess a development against the Building Rules and grant provisional building rules consent. A private certifier “cannot grant a provisional development plan consent”: s 89(3) of the Act. By reg 89(2)(b):
“a private certifier must, in deciding whether to grant a provisional building rules consent, take into account the provisional development plan consent and any condition or notes that apply in relation to the provisional development plan consent (if such consent has been granted).”
Section 97(1)(b) of the Act requires that a private certifier:
“ensure that any development authorisation given by the private certifier is consistent with any other development authorisation that has already been given in respect of the same proposal.”
A provisional building rules consent and a provisional development plan consent are each a development authorisation: see s 4 of the Act.
On 31 March 2003 the private certifier granted a provisional building rules consent in relation to the proposed development, described as “dwelling, carport & verandah” subject to five conditions dealing with structural matters. Each of the plans was stamped with the private certifier’s consent. Presumably copies of the plans and decision notification form were provided by the certifier to the Council as required by s 93 of the Act and by reg 92 of the Regulations.
I note that under reg 92(2)(c) a private certifier must provide the Council with “a certificate that the provisional building rules consent is consistent with the provisional development plan consent and any condition or notes that apply in relation to provisional development plan consent (if such consent has been granted).” The material before the Court does not include any such certificate. The point was not referred to in submissions before us.
The private certifier thus granted provisional building rules consent for the proposed development with reference to plans showing a proposed distance of 5.5 metres between the alignment of the rear face of the dwelling and carport, and the rear boundary, but only 2.3 metres between the outer edge or rear face of the balcony and the rear boundary.
By s 33(4) of the Act:
“A development will be taken to be an approved development when all relevant consents have been granted and a relevant authority has, in accordance with this Act, indicated that the development is approved”
Regulation 46 of the Regulations provides:
“46 (1) If it appears to the relevant authority that all of the consents necessary for the approval of a particular development have been obtained under Division 1 of Part 4 of the Act, and that no such consent has lapsed and that all such consents are consistent with each other, the relevant authority must, subject to the Act and any other Act or law, forthwith (and in any event within five business days after receiving the last consent) issue a notice of approval in the form set out in Schedule 11”
By a Decision Notification Form dated 7 April 2003 the Council issued a development approval for the proposed development. The approval recorded the fact and date of the provisional development plan consent and of the provisional building rules consent. Attached to the approval was a copy of the conditions imposed on the grant of the provisional development plan consent, including condition 3 and 8 set out above, a copy of the private certifier’s consent and of the plans stamped by the private certifier: see reg 42(4) and reg 47 of the Regulations.
Rivergum commenced construction of the dwelling with the rear wall 5.5 metres, and the rear face or edge of the balcony 2.3 metres, from the rear boundary of the property.
By an Enforcement Notice issued pursuant to s 84 of the Act and dated 7 October 2003 the Council referred to the authorisation and to condition 8 of the provisional development plan consent. It asserted that Rivergum had “undertaken development on the subject land in breach of the provisions of Section 32 and 44 of the Development Act 1993 contrary to the said planning authorisation and contrary to Condition 8 above by constructing part of the dwelling namely a balcony on the first floor within above the said 5.5 metres setback”. The Council directed Rivergum to make good its breach by 17 October 2003.
While there is a dispute as to whether construction of the dwelling, in particular construction of the balcony had ceased upon receipt of the enforcement notice, the dwelling including the balcony was at an advanced stage of construction when Rivergum received the enforcement notice.
Pursuant to s 86(1)(d)(ii) of the Act Rivergum appealed to the ERD Court against the enforcement notice.
The ERD Court’s reasons
The issues before the ERD Court were whether the balcony formed part of the dwelling and whether the dwelling as constructed complied with condition 8. Rivergum also argued that the enforcement notice was invalid as the time allowed to remedy the breach was unreasonable and the notice was ambiguous. These latter arguments were not pursued on appeal.
The Judge of the ERD Court found that the balcony formed part of the dwelling. In any event at [18] she reasoned that “if the balcony is not part of the dwelling, it matters not, as the clear intention of the condition was that the entire building be set back a distance of 5.5 m from the rear boundary.” She held that the balcony was part of the dwelling, and so the dwelling as constructed failed to meet condition 8. As to the validity of the enforcement notice the Judge did not find the time allowed unreasonable nor its terms ambiguous. The Judge allowed the parties to make further submissions and provide further evidence as to the appropriate time period for remedying the breach.
At a further hearing counsel for Rivergum argued that the Council by its actions was estopped from issuing the enforcement notice. Although, as the Judge pointed out, this argument should have been raised earlier, in order to dispose fully of the matter the Judge considered the argument, finding against Rivergum. The estoppel argument was not pursued on appeal.
Under s 88(1) of the Act the Court can ‘confirm, vary or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceedings relate’ and under subsection (2) can ‘affirm, vary or quash any order, notice or other authority that has been issued.’ The Judge found that it was reasonable that the direction to remedy the breach be varied to give Rivergum an adequate period to carry out the work. This variation extended the time for Rivergum to remove the balcony.
Rivergum now appeals to this Court against the ERD Court decision.
Submissions of Counsel
Mr Hayes QC, counsel for Rivergum, argues that the only reference in the development application to the setback of the dwelling from the rear boundary is in the site plan and that distance is specified as 4.7 metres, being the distance from the rear boundary to the alignment of the rear wall of the dwelling and carport. A condition of the provisional development plan consent is that the dwelling be set back from the rear boundary 5.5 metres. Rivergum altered the site plan so the distance between the alignment of the rear wall of the dwelling and the carport, and the rear boundary was shown as 5.5 metres. This plan was then stamped by the private certifier with his consent. The private certifier must be taken to have complied with s 97(1)(b), reg 89(2)(b) and reg 92(2)(c), and so must have been satisfied that the provisional building rules consent and the provisional development plan consent were consistent. The Council must have been satisfied that the consents were consistent: reg 46(1). In this context and in these circumstances Mr Hayes argues that condition 8 is to be construed by reference to the site plan, and must be taken to mean that the distance of 5.5 metres refers to the distance of the alignment of the rear face of the dwelling from the rear boundary.
Thus, the meaning to be given to condition 8 should be determined having regard to the amended site plan. Having regard to the information on that plan, the stamping of the plan, and the issue of the development approval, the condition should be construed as requiring the rear face of the dwelling and carport, rather than the rear face or edge of the balcony, to be a distance of 5.5 metres from the rear boundary of the property.
In the alternative Mr Hayes argues that if there is an ambiguity in the meaning of condition then in the circumstances of the case it should be construed adversely to the Council.
Mr Hayes also argues that the Judge failed to consider the exercise of her discretion under s 88 of the Act. He argues that it was within the Judge’s discretion to find that while there had been a breach of the Act, in the circumstances condition 8 should not be enforced. Mr Hayes asserted that the Court in exercising this discretion could take into account the circumstances surrounding the approval, the cost of removing the balcony as well as the extent to which neighbouring properties would be affected. He argues that even if there has been a breach of condition 8, the Court in its discretion, in all the circumstances of the case, could and should have declined to enforce the condition.
Mr Beazley QC, for the Council, argues that the words in condition 8 should be given their literal meaning. The application describes the development as a dwelling, and the term dwelling clearly includes a balcony. He argues that the Council must have known that there was a balcony, and imposed a condition that the dwelling be set back 5.5 metres. This condition was imposed despite the distance of 4.7 metres shown between the alignment of the rear wall of the dwelling and carport, and the rear boundary on the original site plan. Its meaning is not affected by what was shown on the site plan. Nor could it be affected by the later amended site plan submitted to the private certifier. He argues that the condition means that the dwelling must be set back 5.5 metres and that necessarily includes the balcony.
Mr Beazley also argues that the private certifier is required to consider the proposed development only in relation to building and structural matters, and is not required or entitled to consider or to decide matters the subject of a provisional development plan consent.
In the alternative if the meaning of condition 8 is ambiguous, and regard is to be had to the plans accompanying the application, Mr Beazley argues that the site plan is misleading and can be read as indicating that the structure, including the balcony, will be set back 5.5 metres from the rear boundary. If other structures, in particular posts supporting the balcony were to be placed between the marked structure and the rear boundary Mr Beazley submits that these should have been shown on the site plan.
With regard to the Court’s discretion under s 88 of the Act Mr Beazley argues that her Honour was not asked to consider whether she should decline to enforce the condition. He argues that her Honour was simply asked to vary the time for remedial building work to be undertaken, which she did. In any event Mr Beazley submits that her Honour did consider whether or not the condition should be enforced and decided that it should.
Consideration of submissions
The issues raised on appeal raise some important questions about how a court should interpret the terms of a development authorisation (I will use that term on occasions to refer to a provisional development plan consent, a provisional building rules consent and a development approval) and as to the material to which a court may have regard in interpreting a development authorisation. These issues also arose in Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373. As well, this appeal raises the question of the relationship between a provisional development plan consent, a provisional building rules consent and a development approval.
As to the former group of questions, it is convenient to repeat what I said in Oakden at [42] to [46] about the interpretation of a development authorisation:
“A development authorisation is a unilateral document issued by the relevant authority. It is not an agreement between the applicant and the authority.
The meaning of the development authorisation is to be determined objectively. The inquiry is as to the meaning that the terms of the authorisation would have to a reasonable person. The meaning of a development authorisation is not determined by inquiring into the subjective intention of the applicant for authorisation or of the relevant authority.
A development authorisation is intended to operate for the benefit of the applicant and subsequent owners of the land. It is an important document, with enduring legal effects.
The primary document is the development authorisation itself. This is the case whether one is dealing with a provisional development plan consent or with a development approval. It is the authorisation (here embracing a consent or an approval) the meaning of which is in question. But usually, perhaps always, a development authorisation will be meaningless without reference to the plans or proposals submitted by the applicant. In principle, it must be permissible, when deciding the meaning, scope and effect of a development authorisation, to refer to the plans or other documents constituting the proposal submitted for authorisation. This must be permissible at the least when, as here, the development authorisation makes express reference to those plans, by referring to “details and plans” submitted as part of the application. The same applies to the development application itself.
To support these basic propositions, it is sufficient to refer to the decisions in Shroff v McSporran (1987) 140 LSJS 356; Stebbins v Lismore City Council (1988) 64 LGRA 132; Tipfast Pty Limited v South Sydney City Council [2002] NSWLEC 85; (2002) 120 LGERA 292; Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45; (2002) 122 LGERA 347.”

The provisional development plan consent granted by the Council describes the proposed development as “dwelling”, as had Rivergum in its development application to the Council. Of the conditions attached to that consent, condition 8 is the crucial one. For convenience I will repeat it:
“The dwelling is to be sited a minimum of 5.5 metres from the rear boundary.”
Treating the consent as a self-contained document, I have no hesitation in deciding that condition 8 means that all parts of the dwelling are to be at least 5.5 metres from the rear boundary. There is no reason why one would read the condition otherwise.
But in considering the meaning of the condition, it is appropriate to refer to the four plans that accompany the provisional development plan consent. It is appropriate to do so for the reasons that I gave in Oakden. Without reference to those plans it is not possible to understand the effect of the consent, and moreover, the consent refers to the development application, of which the plans are part.
The plans disclose that the application to the Council relates to the whole of the dwelling (including the balcony) and the carport, as depicted in the plans. In the application the dwelling and carport are obviously embraced by the expression “dwelling”. The balcony is clearly part of the dwelling.
The site plan that accompanies the development application indicates that Rivergum proposes that the alignment of the rear face of the dwelling and carport at ground level will be 4.7 metres from the rear boundary.
The plans show that the proposed dwelling includes a balcony at first floor level, that extends beyond the footprint of the proposed dwelling, as shown on the site plan, towards the rear boundary and that its extremity will be 1.5 metres of the rear boundary.
In granting provisional development plan consent to the proposed dwelling, the Council has required by condition 8 that the dwelling be sited at least 5.5 metres from the rear boundary. That is not what Rivergum has proposed by its application. But there is no doubt that condition 8 requires that the dwelling be re-sited so that all parts of it, including the balcony, are at least 5.5 metres from the rear boundary. The siting proposed by Rivergum on the site plan cannot affect the natural, indeed obvious, meaning of condition 8.
That is the effect of the provisional development plan consent. Condition 3, which is set out above, requires the developer to ensure that the building is sited in accordance with the requirement imposed by condition 8.
The development application had to be assessed against the Building Rules, and was referred to a private certifier for that purpose.
Subject to the one change referred to earlier, the same four plans were submitted to the private certifier to consider the grant of provisional building rules consent.
The plans submitted to the private certifier indicate that Rivergum now proposes to site the dwelling so that the alignment of the rear face of the dwelling at ground floor level and carport is 5.5 metres from the rear boundary. Reference to the other plans indicate that the rear edge of the balcony will now be 2.3 metres from the boundary, rather than 1.5 metres as before. It is apparent that in this respect what Rivergum proposes is contrary to condition 8 of the provisional development plan consent.
It may be that the private certifier failed to discharge his duty under s 97(1)(b) of the Act and under reg 89(2)(b) (see above).
However, the submissions before us did not explore the scope of the private certifier’s duty, or the effect of the provisional building rules consent in relation to the provisional development plan consent, or in relation to the setback provisions of the Development Plan which caused the Council to impose condition 8.
Although one might expect the private certifier to have identified the inconsistency between the proposed siting of the dwelling on the plans submitted to him, and the requirement imposed by condition 8 of the provisional development plan consent, it may be that the private certifier took the view, and perhaps correctly, that the setback of the proposed dwelling from the rear boundary was not a matter that he was required to consider.
Whatever the answer is on that point, the proposed development by Rivergum was one that required a provisional development plan consent and a provisional building rules consent: s 33(1)(a) and (b) of the Act. The private certifier had no power to grant a provisional development plan consent, and it follows that he had no power to vary the provisional development plan consent granted by the Council: reg 89 and s 89(3) of the Act.
At best from Rivergum’s point of view there is an inconsistency between the two consents, in that the earlier consent requires that all parts of the proposed dwelling be at least 5.5 metres from the rear boundary, and the later consent has been given in relation to a plan that shows the proposed dwelling in a position that does not comply with the earlier consent.
This conclusion is reinforced by various provisions of the Act. Section 42(2) of the Act provides that a condition attached to a consent binds the person who undertakes the relevant development, any person who acquires the benefit of the consent, and the owners and occupiers of the land on which the relevant development is undertaken. It is clear that the conditions attached to the provisional development plan consent continue to have effect to this day. They do not lose their effect because a provisional building plan consent is granted, or because a development approval is issued. The scheme of the Act assumes the continued operation of each of the provisional consents, subject to a later variation or termination of either one of them. Section 44(4) of the Act makes it an offence to contravene or to fail to comply with a condition imposed on a consent. It is true that s 45(1) provides that a person must not perform building work, except in accordance with, among other things, plans and drawings approved in accordance with the division of the Act that contains s 33. But that does not assist Rivergum unless, contrary to my view, the grant of the provisional development building rules consent is to be taken as in some way approving of the siting of the dwelling contrary to the requirement of condition 8 of the provisional development plan consent.
The final point to be made in relation to this stage of events is that the meaning of condition 8 of the provisional development plan consent cannot be affected by the actions of the private certifier. Condition 8 is attached to the provisional development plan consent and its meaning was fixed once that consent was granted.
The next step in the events was the issue by the Council of the development approval. The development approval refers to the development application. It refers also to the provisional development plan consent and the provisional building rules consent. Attached to it is a copy of each consent, including the conditions attached to each consent.
It may well be that in issuing the development approval in the form of Schedule 11 to the Act, the Council failed to discharge its obligation under reg 46(1) of the Regulations to ensure that the two earlier consents were “consistent with each other”.
Be that as it may, the development approval does not displace the earlier consents, or the conditions attached to them. Section 33(4) of the Act provides:
“A development will be taken to be an approved development when all relevant consents have been granted and the relevant authority has, in accordance with this Act, indicated that the development is approved.”
The issue of a development approval under reg 46 is, in part, confirmation that all necessary consents have been obtained. But those consents continue to operate, and the conditions attached to them continue to bind: s 33(1), (2), (3), (4), s 42(2) and s 44(4) of the Act.
It follows that the provisional development plan consent continued to bind Rivergum after the issue of the development approval. The meaning of condition 8 attached to the provisional development plan consent could not be altered by the issue of the development approval. It cannot be said that when the development approval issued it replaced the provisional development plan consent, and reimposed condition 8, requiring that condition 8 now be interpreted in the light of later events.
Even were condition 8 to be interpreted by reference to the plans that the subject of provisional building rules consent, I would reach the same conclusion as to its meaning. There are two reasons. The first is that the application for provisional building rules consent cannot properly be understood as an application for approval of the proposed location of the proposed dwelling in relation to the rear boundary of the site. That matter was the subject of the provisional development plan consent. Properly understood, the provisional building rules consent cannot be understood as relating to the siting of the proposed dwelling in relation to the rear boundary of the site. The second reason is that, as I understand the events, the provisional building rules consent was provided to Rivergum as part of the development approval, and accordingly came with a further copy of the provisional development plan consent, the development approval indicating that the conditions attached to that consent remained in force. Also, there is no ambiguity in the meaning of condition 8. The amendment to the site plan indicates that Rivergum has not understood or has failed to reflect the requirements of condition 8. The action of the private certifier in granting provisional building rules consent by reference to the site plan which indicates Rivergum’s failure to understand condition 8 or failure to reflect its requirements likewise cannot give rise to any ambiguity as to the meaning of condition 8. The same reasoning applies in relation to the development approval.
For those reasons, it follows that in constructing the dwelling, Rivergum has contravened condition 8 of the provisional development plan consent, and accordingly has undertaken development in breach of s 32 and s 44 of the Act.
Accordingly, the Council was authorised to issue the enforcement notice.
It follows that unless the ERD Court took the view that it should exercise its discretion to vary or reverse the decision to issue the enforcement notice, the enforcement notice should stand.
The Judge of the ERD Court appears to have taken the view that once she had determined the meaning of condition 8, and concluded that the erection of the dwelling was in breach of the Act, she had no choice but to uphold the enforcement of the condition. She said at [24]:
“In applications for civil enforcement orders under s 86 of the Development Act, the Court ultimately has a discretion as to whether to make the orders sought by the applicant. In appeals pursuant to s 86(1)(d) and s 84(9) of the Act, the Court has to consider whether the direction should stand. Where the direction that has been given is to overcome a breach of the Act constituted by the undertaking of development contrary to a condition of consent, the Court cannot, by its decision, sever or otherwise erase the condition of consent the subject of the direction. The Court cannot, in appeal proceedings in relation to a s 84 Notice, consider the appropriateness or validity of a condition of provisional development plan consent, as if it were hearing an appeal against the condition. The jurisdiction of the Court in relation to the merits of the condition has not been invoked. The time for the lodgement of an appeal against the condition has passed without an appeal being instituted.”
Mr Hayes submits that the Judge had power to set aside the enforcement notice, and to decline to enforce condition 8. His submission is that the Judge has wrongly treated herself as having no choice in the matter. He submits that while the Judge could not remove condition 8, it was within her power to hold that, in all the circumstances, it should not be enforced. Mr Beazley submits that the Judge has considered whether or not the condition should be enforced. He submits that in the portion of her reasons set out above she is dealing with an argument that invoked the exercise of the discretion by challenging the soundness of the condition. He submits that, although her Honour has not referred separately to the matter, her Honour has separately considered whether she should decline to enforce the condition, and has decided not to.
Her Honour’s reasons on the point are brief, and no doubt reflect the manner in which the issues were put to her. It is unclear to me whether or not she has understood that she has been asked to decide that the condition should not be enforced.
Under all the circumstances, and in the interests of justice, it would be appropriate to allow the appeal for the sole purpose of remitting the matter to the ERD Court to consider further the exercise of the discretion in relation to the enforcement notice. In doing so I do not make a decision one way or the other as to whether or not her Honour has considered the exercise of the discretion as invoked by Mr Hayes. I would remit the matter to her to enable her to indicate whether or not she has exercised that discretion and, if she has not, to consider whether it should be exercised in favour of Rivergum. That in turn would depend upon how the case was put to her. If her Honour took the view that in the submissions before her she has not been asked to exercise her discretion to set aside the notice on the basis that the condition should not be enforced, it would be open to her Honour to hold that having regard to the conduct of the proceedings so far, it was too late to invoke that particular exercise of her discretion.
In other words, I would remit the matter to her Honour to enable her to decide whether she can and should exercise her discretion to set aside the enforcement notice on the basis that condition 8 should not be exercised.
I add that it is not appropriate for this Court to consider whether or not the discretion should be exercised. The relevant material is not before the Court, nor is this Court in a position to do so, having regard to the fact that the appeal to this Court is on a question of law alone. Nor is this Court in a position to decide whether or not, if her Honour has exercised the discretion, she has done so correctly
DUGGAN J: In my view the appeal should be allowed. I agree with the orders proposed by the Chief Justice and his reasons for decision.
ANDERSON J: I agree that the appeal should be allowed only for the purpose of allowing the ERD Court to consider the exercise of discretion. I also agree with the reasons of the Chief Justice.