Roberts v Blue Mountains City Council
[2012] NSWLEC 2
•17 January 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Roberts v Blue Mountains City Council [2012] NSWLEC 2 Hearing dates: 8 August 2011 Decision date: 17 January 2012 Jurisdiction: Class 1 Before: Pepper J Decision: Application dismissed
Catchwords: APPEAL: appeal against the council's refusal to be satisfied that deferred commencement conditions of a development consent had been complied with - whether the consent had already lapsed - consent was effective but not operative until the deferred commencement conditions were complied with - whether the deferred commencement conditions had been complied with - deferred commencement conditions not complied with - appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979 ss 80, 83, 95, 91, 97, Sch 6 cl 111
Environmental Planning and Assessment Regulation 2000, cl 95
Environmental Planning Legislation Amendment Act 2006, Sch 1, s 3, cl 41
Land and Environment Court Act 1979, s 17(d)
Rural Fires Act 1997, s 100BCases Cited: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395
Bezzina Developers Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 175; (2006) 146 LGERA 249
Boral Resources Pty Ltd v Wingecarribee Shire Council [2003] NSWLEC 39; (2003) 124 LGERA 90
Botany Bay City Council v SAAB Corp Pty Ltd [2011] NSWCA 308
CSR Ltd v Fairfield City Council [2001] NSWLEC 221; (2001) 117 LGERA 77
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Rich v Lennox Palms Estate Pty Ltd [2010] NSWCA 242
Roberts v Blue Mountains City Council [2005] NSWLEC 699
S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151
Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245
Wingecarribee Shire Council v Pancho Properties Pty Ltd [2001] NSWCA 271; (2001) 117 LGERA 104Category: Principal judgment Parties: Mr Ken Roberts (Applicant)
Blue Mountains City Council (Respondent)Representation: Mr I J Hemmings (Applicant)
Mr T Cork (Solicitor) (Respondent)
Coode & Corry Solicitors (Applicant)
McPhee Kelshaw Solicitors (Respondent)
File Number(s): 10150 of 2011
Judgment
Mr Roberts Appeals Against a Decision of the Council
Pursuant to s 97(3) of the Environmental Planning and Assessment Act 1979 ("the EPAA") Mr Ken Roberts appeals (initially filed on 6 December 2010 in Class 4 of the Court's jurisdiction and then, in effect, converted to the present Class 1 appeal filed on 23 February 2011) against the refusal by the Blue Mountains City Council ("the council") to be satisfied that the requirements of deferred commencement conditions of a development consent granted on 7 December 2005 for the subdivision of land ("the consent"), namely, Lot 41 DP4695 at 34 Emu Road, Glenbrook ("the land"), have been fulfilled ("the decision").
The rear eastern boundary of the land adjoined Darks Common Reserve, a public reserve. The land was, at least at the time of the granting of the consent, classified as category 1 bush fire prone land. However, while Darks Common constituted a potential bush fire threat, there was, at the time of the development application, a 10m wide fuel reduced portion of the Common that abutted the boundary of the land, and which extended behind neighbouring properties.
The conditions imposed in the consent the subject of this appeal related to the creation of necessary Asset Protection Zones ("APZs") for the purpose of bush fire safety.
The council informed Mr Roberts of its lack of satisfaction on 6 December 2010.
When the appeal initially came before the Court for hearing, the Senior Commissioner raised with the parties the utility of hearing the appeal if, as was contended by the council, the consent had already lapsed on 7 December 2010 by reason of the asserted failure by Mr Roberts to comply with the conditions of consent. Indeed the Senior Commissioner went further and queried the Court's jurisdiction to entertain the appeal in the circumstances. Accordingly, the proceedings were relisted for hearing before a judge of the Court.
Background to the Appeal
The consent was initially granted by Watts C of this Court on 7 December 2005, after the Commissioner upheld Mr Roberts' appeal against the refusal of the council on 26 March 2004 to grant development consent for the subdivision (Roberts v Blue Mountains City Council [2005] NSWLEC 699).
Before the Commissioner the principal contested issues relevantly included the "bush fire issue" (at [39]). In relation to this issue, the Commissioner found as follows (at [56]-[58]):
56 Mr Cork submitted that the evidence of Mr O'Toole representing the Rural Fire Service, (RFS) suggests that an APZ of at least 40m is required to protect future residential development on the land. Mr O'Toole had employed a computer model for bush fire analysis to arrive at a satisfactory width for an APZ for the land. This APZ was narrower by 10m than that previously determined by the RFS by reference to Planning for Bushfire Protection , (PFBP). Even so, Mr Cork submitted that the required 40m APZ couldn't be accommodated wholly on the subject land as required by (PFBP) and as determined by the Court on other occasions. He submitted that the RFS had cautioned that it couldn't support this fire protection zone without a plan of management or a grant of easement over Darks Common for bushfire purposes.
57 He submitted that evidence that the Darks Common Management Trust is willing to enter into a agreement for bushfire control is required before approval could be given to the present application. He referred to the "confusing communications" in Exhibit 18 concerning the provision of an APZ.
58 The Darks Common Management Trust in a letter to Commodore Roberts, the applicant, dated 13 August 2004 had agreed that fire safety measures might be taken in the common within 10m of the common boundary, [Note: Exhibit 18, p 04]. Mr Langevad also recognised that, "...the RFS advise that they are prepared to grant a Bush Fire Safety Authority subject to appropriate conditions which may be incorporated..." [Note: Exhibit 1, Vol 2, p 61].
At the time, Mr Trevor Cork was, as he presently is, the solicitor representing the council. Mr W Langevad is the Program Leader - City Planning at the council. Mr Terence O'Toole is a Development Control Officer for the Rural Fire Service of New South Wales ("the RFS"). He gave evidence before the Commissioner by way of written statement, dated 14 November 2005, which was also put before the Court for the purpose of the appeal.
In his statement, Mr O'Toole concluded that the proposed subdivision did not comply with planning requirements for bush fires established in RFS guidelines Planning for Bushfire Protection - 2001 and that the proposal relied instead on the Plan for the Management of Darks Common Reserve, Lapstone 1997 ("the Plan of Management") which, in the opinion of the RFS, was inadequate. This was because the proposed development was unable to support suitable APZs without utilising the Darks Common Reserve. Accordingly, the RFS was "not prepared to grant a Bush Fire Safety Authority at this time". However, if there were adequate maintenance guarantees for the Darks Common, the RFS was of the view that a suitable dwelling could be supported on the proposed subdivided lot.
Concurrence was necessary from the RFS because the proposed subdivision was integrated development for the purposes of s 91 of the EPAA and the development required a Bush Fire Safety Authority from the RFS pursuant to s 100B of the Rural Fires Act 1997.
The Terms of the Deferred Commencement Consent
Relevantly, the consent required confirmation in writing from Mr Roberts that either of two deferred commencement conditions attached to the consent had been satisfied. These were:
(a) that the adopted plan of management (POM) for the Darks Common Reserve, Lapstone (the "Common") has been the subject of such amendment, in regard to the creation and maintenance of an asset protection zone relating to the applicant's land, as is required by the Rural Fire Service; or
(b) that an instrument under s 88B of the Conveyancing Act 1919, creating a 10 metre wide easement for maintenance of an asset protection zone (outer protection area), has been registered against the title of each of Lot 311 in DP 751662 and Lot 355 in DP 45723 creating an easement to maintain the proposed 10 metre wide asset protection zone within the Common (the "registered easement") and that the terms of the register easement are generally in accordance with the terms of the instrument annexed to the Rural Fire Service Development Control Not 02, and that the RFS has provided written confirmation that the registered easement satisfies its requirements in relation to the maintenance of that part of the proposed asset protection zone for the development that is to be located within the Common.
It was not a matter of controversy that no easement had been created and that condition (b) has not been complied with.
The Council Informs Mr Roberts that Condition (a) is Not Satisfied
On 1 February 2010, the RFS issued an enforceable direction to the Darks Common Reserve Trust to establish an APZ approximately 16.4m wide and 133m in length extending to the north and south of the land the subject of the consent. Attached to the direction was a Bush Fire Hazard Reduction Certificate that approved the clearing work and attached a number of conditions to be complied with in undertaking the bush fire hazard reduction work.
The direction was issued following a bush fire hazard complaint made by Mr Roberts to the RFS.
On 6 October 2010, Mr Roberts wrote to the council asking them to confirm that the above direction satisfied condition (a) of the consent.
In reply, on 14 October 2010 the council put Mr Roberts on notice that in its opinion it "appeared" that the direction did not satisfy condition (a) because "it is not an amendment of the adopted plan of management for the Darks Common Reserve". But the council stated that it would seek advice and would further respond once such advice had been obtained.
Thus on 21 October 2010, the council wrote to Mr Roberts confirming its initial view that the condition had not been satisfied by the issuing of the direction, and moreover, informing him that absent satisfaction, the consent was due to lapse on 7 December 2010, which was five years after the date upon which the consent had been granted.
Mr Roberts responded to this letter by email on 1 December 2010. In that email he stated that he had consulted with the RFS and the Department of Lands, both of which had told him that the APZ created as a consequence of the direction issued on 1 February 2010 to the Trust could not be "undone" and that accordingly the Plan of Management would have to be amended "in the near future". Mr Roberts therefore requested that the council reconsider its previously expressed view that condition (a) had not been satisfied.
On 2 December 2010, the council responded effectively stating that it did not resile from its earlier position.
This was reiterated again by the council on 6 December 2010, in reply to another email sent by Mr Roberts on 3 December 2010 imploring the council to reconsider its decision in light of the fact that the APZ created by the Trust extended behind the APZ required to be created by the consent and given the legal obligation on the Trust to maintain the enlarged APZ. Mr Roberts stated in the email that to insist on a formal amendment to the Plan of Management in such circumstances "would be trivial and meaningless".
Whilst it is not in dispute that as at 7 December 2010 there had been no formal amendment of the Plan of Management, Mr Roberts had commenced Class 4 proceedings in the Court for declaratory relief in respect of the council's decision on 6 December 2010.
Issues for Determination
The proceedings raise two issues for determination:
(a) first, absent satisfaction of deferred commencement condition (a), when does the consent lapse; and
(b) second, has there been sufficient compliance with the condition, and thus the consent, so as to entitle Mr Roberts to proceed with the development?
In my opinion, the appeal must be dismissed, the consent having lapsed by reason of Mr Roberts' failure to satisfactorily fulfil the conditions of the deferred commencement consent by 7 December 2010.
When Does the Consent Lapse?
A development consent may be granted subject to conditions that the consent does not operate until the applicant satisfies the consent authority, in this case the council, as to the matters specified in the conditions. In this regard s 80(3) of the EPAA provides:
80 Determination
(3) "Deferred commencement " consent
A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regu l ations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
Section 80(3) is supported by cl 95 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") which is in the following terms:
95 Deferred commencement consent
(1) A "deferred commencement" consent must be clearly identified as a "deferred commencement" consent (whether by the use of that expression or by reference to section 80 (3) of the Act or otherwise).
(2) A "deferred commencement" consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.
(3) A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters.
(4) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.
(5) If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters.
(6) If the consent authority has not notified the applicant within the period of 28 days after the applicant's evidence is produced to it, the consent authority is, for the purposes only of section 97 of the Act, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.
At the time the consent was granted, there was no period of time specified in the consent within which Mr Roberts had to produce evidence to the council sufficient for it to be satisfied as to compliance with the deferred commencement conditions.
As at 7 December 2005, there was no provision in the EPAA that dealt with the lapsing of a deferred commencement consent. In 2006, however, s 95(6) of the EPAA was introduced. This provision imposed a maximum five year time limit from the date of the grant of the consent within which satisfaction of the deferred commencement conditions was to occur. It states as follows:
95 Lapsing of consent
(6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 80 (3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.
The introduction of s 95(6) of the EPAA was facilitated by cl 111 of Sch 6 to that Act, the terms of which are:
111 Lapsing of consent
A development consent granted before the commencement of section 95(6), as inserted by the amending Act, that is subject to a deferred commencement condition under section 80(3), lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within:
(a) 5 years after the date consent was granted, or
(b) 2 years after the date of the commencement of section 95(6),
whichever is the later.
Section 95(6) commenced operation on 4 December 2006 (s 3 and cl 41 of Sch 1 to the Environmental Planning Legislation Amendment Act 2006)
There can be no doubt, therefore, that absent satisfaction by Mr Roberts of either deferred commencement condition (a) or (b), by operation of cl 111 of the EPAA the consent granted by Watts C on 7 December 2005 lapsed on 7 December 2010.
This finding gives rise to the issue vexing the Senior Commissioner, namely, whether there is any utility in the Court hearing this appeal. In my view there is. This is because upon the grant of a deferred commencement development consent, the consent is effective, but not operative until such time as the deferred commencement conditions have been complied with to the satisfaction of the consent authority. This outcome is achieved by the combined operation of ss 80(3) and 83 of the EPAA.
As at 6 December 2010, s 83 of the EPAA relevantly provided as follows:
83 Date from which consent operates
(1) Subject to subsections (2) and (3), if a determination is made by the granting of consent, the consent becomes effective and operates from:
(a) except as provided in paragraph (b)-the date that is endorsed on the notice given to the applicant in accordance with section 81(1) of the determination of the development application or under section 82A(7), or
(b) in the case of designated development to which an objection has been made in accordance with section 79(5):
(i) if consent was granted under section 80(7) following the holding of a review by the Planning Assessment Commission-the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81(1), or
(ii) in any other case-the expiration of 28 days from the date that is endorsed on the notice of the determination of the development application given to the applicant in accordance with section 81(1).
(2) Subject to subsection (3), if a determination is made by the granting of consent or the granting of consent subject to conditions, and an appeal has been made under section 97 or 98, the consent:
(a) ceases to be, or does not become, effective pursuant to subsection (1), and
(b) becomes effective and operates from the date of the determination of that appeal, except where that decision is to refuse development consent.
(3) A consent referred to in subsection (1) or (2) is void and, except for the purposes of section 97 or 98, is taken never to have been granted if:
(a) an appeal under section 97 is dismissed and development consent is refused, or
(b) an appeal under section 98 is upheld, with the effect that development consent is refused.
(4) If a determination is made by refusing consent or if an application is taken by section 82 to have been so determined, and the decision on the appeal made pursuant to section 97 in respect of that determination has the effect of granting consent, the decision is taken to be a consent granted under this Division and that consent is effective and operates from the date of that decision.
Ordinarily once a determination is made to grant a consent, the consent "becomes effective and operates from" the date endorsed on the notice given to the applicant (s 83(1)(a) of the EPAA). In the present case, there was no notice given to Mr Roberts because the decision was made by the Court on appeal pursuant to s 97(1) of the EPAA, the result of which was that the consent became "effective and operates from the date of the determination of that appeal", viz , 7 December 2005 (s 83(2)(b) and (4)). However, s 80(3) of the EPAA empowered the granting of consent subject to deferred commencement conditions (a) and (b). The effect of the imposition of these conditions of consent was that "the consent is not to operate until the applicant satisfies the" council that the conditions have been met. Hence the consent has effect, but no sphere of operation. This enables, as s 80(3) envisages, Mr Roberts to undertake all such measures necessary to ensure compliance with the deferred commencement conditions, but no more.
Arguably, the effect of Mr Roberts commencing proceedings was that the consent ceased to be effective pending the determination of the appeal and was "in a state of suspension" (Wingecarribee Shire Council v Pancho Properties Pty Ltd [2001] NSWCA 271; (2001) 117 LGERA 104 at [27]-[28] and s 83(2) and (4) of the EPAA).
It is not possible to be more definitive because it is not clear that this was the effect of the commencement of the Class 4 proceedings. On one view, the original Class 4 proceedings, which were plainly not Class 1 proceedings (see s 17(d) of the Land and Environment Court Act 1979), did not constitute "an appeal" for the purpose of s 97 of the EPAA, and thus s 83 of the EPAA had no application. If this is correct, then absent satisfaction of the deferred commencement conditions, the consent lapsed on 7 December 2010, that is to say, prior to the filing of the Class 1 appeal on 23 February 2011. However, because this issue was neither raised by, nor discussed with, either party and because ultimately the reasons for this judgment render it moot, it is presently accepted that upon commencing proceedings on 6 December 2010, the consent, including its ability to lapse the next day, was suspended.
Accordingly, upon resolution of these proceedings, the consent will either become effective and operative if the appeal is successful or if it is not, will have lapsed.
The council submitted that s 83 has no application to deferred commencement development consents, which are regulated by a "specific and self-contained code, which is found in s 80(3) and s 95(6) of the EP&A Act".
I do not agree. There is nothing in the language of either provision that would warrant the exclusion of s 83 to such consents. On the contrary, rather than any discordant operation between ss 80(3) and 83, the two sections may be construed as complementary in scope and function.
While s 83(2) of the EPAA has since been amended to specifically exclude from its ambit appeals pursuant to s 97(3) of the Act (which would include the present appeal), I do not consider that this subsequent amendment is a sufficiently clear indicia of a legislative intention as at 6 December 2010, to exclude the application of s 83 to deferred commencement development consents at that point in time. In any event, s 83(4) continues to apply to all s 97 appeals.
The council also raised what it described as the ' Bezzina issue' after the decision of Talbot J in Bezzina Developers Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 175; (2006) 146 LGERA 249. In that decision, which concerned a deferred development consent granted by the Court, at issue was a determination of the date from which a development consent operated. His Honour considered that there was a distinction to be drawn between a deferred commencement consent granted by a council and a deferred commencement consent granted by the Court. He opined (at [53]-[55]):
53 If the legislature had intended that a court-approved deferred commencement consent should operate from the date when the condition was satisfied then it would have provided specifically that the consent operate either from a date when the Court could be satisfied the condition had been complied with or following compliance with the deferred commencement condition to the satisfaction of a third party. It did not do so. It thereby avoided a potentially unsatisfactory circumstance whereby the parties could be required to return to the Court for a further hearing after the application had been finally determined (see Weal v Bathurst City Council (2000) 111 LGERA 181).
54 Arguably the Court may have avoided the dilemma by stating that the consent would not operate until the deferred commencement condition had been satisfied. However in that event questions of the Court's jurisdiction to override the express statutory provision would arise. That did not happen in the instant case and therefore does not require to be considered further at this point.
55 Essentially what Mr Craig is saying is that the word " operates " in s 83(2) is not to be interpreted in the same manner as the verb "to operate" as it appeared in s 91AA and now appears in s 80(3). According to Mr Craig, the two provisions namely s 83 (formerly s 93) and s 80(3) (formerly s 91AA) must be read together. That is, a court-granted consent may include a deferred commencement condition. Once such a deferred commencement condition is imposed pursuant to the requirements of s 80(3) (s 91AA) the consent will not "operate" until the deferred commencement condition has been satisfied.
Applying Talbot J's reasoning, the council submits that because s 83(4) states that any consent, including a deferred commencement consent, granted by the Court "is effective and operates from the date of that decision", whereas a consent granted by the council pursuant to s 80(3) is expressed not to "operate until the applicant satisfies the consent authority... as to any matter specified in the condition", the two provisions are inconsistent in a manner supportive of the council's position that s 83 has no application to deferred development consents.
But again, in my opinion, a harmonious reading of the two provisions is not only possible but is conformable with the scope, purpose and objects of the EPAA. Put simply, if the resultant consent pursuant to s 83(4) of the EPAA is, as is presently the case, a deferred commencement consent, then, and irrespective of who granted the consent, consistent with the clear and unambiguous terms of s 80(3) of that Act, the consent does not become operative until Mr Roberts satisfies the council that he has fulfilled the deferred commencement conditions.
There are a number of reasons why this interpretation should be adopted. First, a s 97 appeal is a hearing de novo upon the material before the council at the time, not, as the council's submissions suggest, a species of judicial review of the council's decision.
Second, if the council's contentions are correct, then the statutorily enshrined 12 month appeal period could be rendered otiose by the imposition by a council of a time limit of some lesser period within which to fulfil a deferred commencement condition.
Third, it would, in my opinion, be an anomalous result if an applicant, having been granted a valuable right, namely, a development consent, albeit one that was subject to a deferred commencement, was discouraged from commencing a legitimate challenge to the validity of the conditions attaching to the consent for fear of losing the benefit of the approval as time passed while the action was being pursued.
Furthermore, the construction is consistent with the decision of Pearlman J in CSR Ltd v Fairfield City Council [2001] NSWLEC 221; (2001) 117 LGERA 77, a decision which Talbot J respectfully eschewed in Bezzina, but with which I am inclined to agree.
Ultimately, however, it is not necessary to come to a definitive view about the application of s 83 of the EPAA to the consent because of the conclusion that I have reached that Mr Roberts has not, satisfied the conditions of the consent.
Condition (a) Has Not Been Satisfied
There is no question that by carrying out the bush fire hazard reduction works required by the RFS letter dated 1 February 2010, the Darks Common Reserve Trust ensured de facto compliance with the requirement of the consent for the provision of an additional 10m of APZ within the Common (in fact over 16m was created).
Mr Roberts submitted that in these circumstances the threat of bush fire for the surrounding residential properties is being satisfactorily managed and the Plan of Management does not need to be amended. Furthermore, Mr Roberts notes that the RFS, as the evidence of Mr O'Toole demonstrates, while agreeing to the amendment of the Plan of Management, did not formally request it as a condition of the consent. Mr Roberts also observes that the amendment is not specifically directed to his land, but is a general amendment permitting all owners of residential land abutting Darks Common to carry out bush fire hazard reduction works.
Finally, Mr Roberts relied on the fact that the 16m APZ created as a consequence of the RFS direction to the Trust is subject to the direction of the RFS, as evidenced by the Bush Fire Hazard Reduction Certificate Environmental Approval for Works issued by the RFS on 1 February 2010.
It was therefore Mr Roberts' contention that because the purpose of condition (a) was to ensure that the subdivision had the benefit of a 30m APZ on his land and a 10m APZ on the adjoining Reserve land (thereby creating an APZ of 40m) and this purpose having been achieved by the creation of the 16m APZ, the condition had been effectively and satisfactorily fulfilled.
That the creation of the 16m APZ was sufficient compliance, was, Mr Roberts submitted, reinforced by the language of condition (a), namely, "that the adopted Plan of Management...has been the subject of such amendment". By use of the words "such amendment", it was clearly intended that literal compliance with the condition was not necessary in circumstances where practical compliance had been effected. That is to say, any "such amendment" of the Plan was to be no more than that which was necessary to ensure the rationale for imposing the condition materialised. In the present case, because this had been achieved by reason of the Trust's compliance with the RFS direction, no actual amendment of the Plan was required.
There are replete references in the authorities to the, almost trite, proposition that not only must instruments such as development approvals and conditions of consent be construed fairly and liberally in the context of their written terms and having regard to their enduring function (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [37] and [41] and S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151 at [59]), they must also be applied in a practical and commonsense manner, and not as documents drafted with legal expertise (Boral Resources Pty Ltd v Wingecarribee Shire Council [2003] NSWLEC 39; (2003) 124 LGERA 90 at [29], Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36] and [40], Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [96]-[98] and Botany Bay City Council v SAAB Corp Pty Ltd [2011] NSWCA 308 at [80]). The search must be what, objectively, was intended by the imposition of the condition.
Having regard to the principles of construction above, I do not consider that Mr Roberts has fulfilled condition (a), the terms of which leave no room for ambiguity with respect to its application. Contrary to his proposed construction of the words "such amendment" in condition (a), the consent cannot operate until the Plan of Management has been amended to reflect the position of the RFS - plainly advanced before Watts C (at [7], [56] and [58]) - that "it couldn't support this fire protection zone" of 40m "without a plan of management or a grant of easement over Darks Common for bush fire purposes" (at [56]). It is worth noting that this represented a compromise by the RFS who had initially recommended an APZ of 50m. Because the 40m could not be accommodated entirely on Mr Roberts' land, it was determined that 10m of the APZ would be within Darks Common. This was agreed to between the parties, and the agreement formed one of the bases upon which the Court approved the application for subdivision (at [60]).
The reason why the RFS demanded either the grant of an easement over Darks Common or "a plan of management" (at [56]) was because of "confusing communications" (at [57]) that existed between the Trust and Mr Roberts concerning whether or not fire hazard reduction measures could be undertaken in the Common within 10m of the common boundary. It is tolerably clear, therefore, that the objective intention behind the imposition of condition (a) was to deliver certainty to the RFS that a suitable APZ would be created and would continue to be maintained by enshrining the APZ in the Plan of Management.
This is understandable when regard is had to the content of the Plan of Management, which as Mr Roberts noted in his written submissions, did not, contrary to expectations, set out a regime (let alone an adequate regime) to deal with any potential bush fire hazard issues (it is permissible to have regard to any documents incorporated in a consent, for the purpose of its construction, expressly or by necessary implication: Ko-veda at [100] and S J Connelly at [60]). Indeed all that the Plan said in this regard was that the Trustees of the Common would:
Continue to liaise with the Glenbrook/Lapstone Bushfire Brigade on appropriate fuel hazard reduction activities within the Reserve.
Insofar as Mr Roberts submitted that the RFS has never "required" any amendment of the Plan since the granting of the deferred commencement consent, this, in my opinion, misconstrues the terms of condition (a). Interpreted with a view to commonsense, rather than any literal construction, the condition clearly refers to the "requirement" that either such an amendment take place or an easement be granted over the Common before, as was necessary, the RFS would consent to the proposed subdivision. So much so is obvious when regard is had to the objective circumstances surrounding the granting of the consent referred to above (Westfield at [41], Rich v Lennox Palms Estate Pty Ltd [2010] NSWCA 242 at [31] and S J Connelly at [61]). In this sense the amendment was "required" by the RFS.
I do not understand the submission made by Mr Roberts that the amendment "was not one required specifically for the Roberts' land". Both the circumstances giving rise to the granting of the consent, the imposition of the condition and the language of condition (a) itself indicate that, in addition to relating to the Darks Common's APZ, it is also a condition "relating to the applicant's land". It is true that the required amendment to the Plan of Management is to be generically expressed to permit all owners of residential land adjoining Darks Common to carry out hazard reduction work within 10m of the common boundary, but this does not derogate from the obligation of Mr Roberts to comply with condition (a). It may be readily inferred that given the severity of the bush fire hazard posed by the location of the Common next to residential dwellings, the RFS sought the imposition of the condition in order to ensure that further residential development did not proliferate absent additional measures being implemented in order to minimise the conflagration risk. While Mr Roberts' development consent may have been the initial vehicle through which such measures are effected, in my opinion, this neither justifies nor permits some lesser degree of fulfilment of the deferred commencement condition.
To the extent that Mr Roberts relied on the creation of the 16m APZ by the Trust pursuant to the direction issued on 1 February 2010 to support his submission that strict compliance with the condition was not necessary because practical fulfilment of the condition had already been achieved, this must be rejected on several grounds.
First, the Bush Fire Hazard Reduction Certificate Environmental Approval for Works was effective 1 February 2010 to 31 January 2011. That is to say, it was only valid for a limited duration and has since expired. Absent additional approval, no further clearing works can be carried out by the Trust. Second, and contrary to the submission of Mr Roberts, both in correspondence to the council and to this Court, it was not demonstrated that the creation of the 16m APZ pursuant to the direction by the RFS to the Trust created a concomitant obligation on the part of the Trust to either maintain the APZ once the Approval had expired or, as a corollary, to cause the Plan of Management to be amended. Third, as a result, any further approvals obtained by the Trust will be ad hoc in nature and will not provide the certainty required by the RFS. Fourth, the purpose of the Bush Fire Hazard Reduction Certificate Environmental Approval for Works is described as "managing Asset Protection Zone to protect a residential building" (emphasis added) and not more broadly to protect residential buildings. This wording, in my opinion, gives rise to a degree of uncertainty and confusion as to the extent of any ongoing maintenance of the APZ in the future.
For all these reasons, Mr Roberts' reliance on the creation of the 16m APZ as an alternative to fulfilment of condition (a) is, in my view, misplaced.
Finally, to pose the question, as Mr Roberts did, namely, whether the Plan of Management in fact requires amendment, is, moreover, to misconceive the nature of the debate and to misstate the test. At issue is whether there has been satisfactory fulfilment of deferred commencement condition (a). For the reasons given above, I am of the opinion that there has not been.
Conclusion and Orders
Because I am not satisfied that deferred commencement condition (a) of the consent has been fulfilled, it follows that, in conformity with the reasons given above, the consent lapsed on 7 December 2010, and the appeal must be dismissed.
The orders of the Court is therefore that the appeal under s 97(3) of the EPAA is dismissed and the exhibits are to be returned.
**********
Decision last updated: 18 January 2012
3
11
5