Rothwell Boys Pty Ltd v Coffs Harbour City Council

[2012] NSWLEC 19

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19

Hearing dates:

9 February 2012

Decision date:

09 February 2012

Jurisdiction:

Class 1

Before:

Craig J

Decision:

1. The separate question, as posed, is answered: "Yes".

2. Costs are reserved.

Catchwords:

ENVIRONMENT AND PLANNING: development application - landowner's consent - cl 1(1)(i) of Pt 1 of Sch 1 to The Environmental Planning and Assessment Regulation 2000 (the Regulation) - evidence of landowner's consent contained in a deed between landowner and development applicant - amendment of development application by applicant under cl 55 of the Regulation - landowner's consent not given to the amendment - landowner's consent first given to development application as lodged sufficient to maintain compliance with the requirement for landowner's consent to the application as amended.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Environmental Planning and Assessment Amendment (Pt 3A Repeal) Regulation 2011
Fisheries Management Act 1994
Marine Parks Act 1997
Marine Parks (Zoning Plan) Regulation 1999
Water Management Act 2000

Cases Cited:

Radray Construction Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292
Rose Bay Afloat Pty Ltd v Woollahra Council [2002] NSWLEC 208; (2002) 126 LGERA 36

Category:

Separate question

Parties:

Rothwell Boys Pty Ltd (Applicant)
Coffs Harbour City Council (First Respondent)
Minister Administering the Water Management Act 2000 (Second Respondent)
Roger Anthony Barker (Third Respondent)

Representation:

Mr M D Seymour (Applicant)
Ms J Hewitt (Solicitor) (First Respondent)
No appearance (Second Respondent)
Mr P J McEwen SC (Third Respondent)
Gadens Lawyers (Applicant)
HWL Ebsworth Lawyers (First Respondent)
No appearance (Second Respondent)
Adendorffs Solicitors & Conveyancers (Third Respondent)

File Number(s):

10571 of 2011

ex tempore Judgment

1. There is presently pending in this Court an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ( the EPA Act ) relating to the development of land immediately north of Moonee Village on the mid-north coast of New South Wales. That appeal has been fixed for hearing later this month.

1. On 24 January 2012 an order was made that the following question be separately determined:

" Whether the Deed dated 14 July 2009 between Rothwell Boys Pty Ltd and Roger Anthony Barker is evidence that the owner of Lot 6, DP252223 consents to the making of Development Application DA 1132/10 as amended by [plan] 0807[0]/7 for the purpose of cl 1(i) Schedule 1, Environmental Planning and Assessment Regulation 2000 ."

1. That question was before me today for determination. In light of the fact that the hearing is imminent and that the parties have been directed to take a number of steps in preparation for the hearing, it is necessary that I give my answer to the question immediately. The necessity to do that has resulted in these reasons being stated more briefly than would otherwise have been the case.

The background

1. On 5 March 2009 the applicant in the proceedings, Rothwell Boys Pty Ltd ( Rothwell ), obtained project approval under Pt 3A of the EPA Act for a residential subdivision creating 524 lots on land also located to the north of Moonee Village and known as "The Glades Estate". A condition of that approval required the construction of a collector road from the south-eastern section of The Glades Estate south to Moonee Village. The apparent purpose of this condition was to prevent direct access to the Pacific Highway from The Glades Estate. There is an existing Highway access available from Moonee Village.

1. The collector road required by the approval was to pass through land that was not owned by Rothwell. One allotment of land through which it was required to pass was Lot 6 in DP 252223 ( Lot 6 ) owned by Roger Barker, the third respondent in the proceedings.

1. On 14 July 2009 Rothwell entered into a Deed ( the Deed ) with Mr Barker for the construction of the collector road through his property. It will be necessary to refer to the terms of this Deed in due course.

1. Having negotiated with all relevant landowners for the construction of the collector road, on 4 May 2010 Rothwell lodged a development application (DA 1132/10 - the Development Application ) with Coffs Harbour City Council seeking consent for the construction of that road. The alignment of the collector road shown on plans accompanying the Development Application accorded with that shown on a plan marking the centre line for the road on a plan referred to in the Deed.

1. Rothwell was the applicant named in the Development Application lodged with the Council. Documents lodged with that Development Application included the Deed. It was provided to the Council as evidence of the consent of Mr Barker, as owner of Lot 6, to the lodgement of the Development Application.

1. The Development Application proposed involved "integrated development" as construction of the road required not only development consent from the Council but approval from the Department of Primary Industries and the New South Wales Office of Water. Concurrence was also required from the Marine Parks Authority as part of the land is located within the Solitary Islands Marine Park.

1. In about September 2010, the Council prepared a revised alignment for the proposed collector road which was endorsed by Rothwell for referral to the relevant government agencies. On 21 October the Council notified Rothwell that the government agencies would "not endorse" the revised alignment of the collector road, those agencies recommending that consideration be given to an alternate alignment of the road, further removed from Cunningham's Creek.

1. On 1 July 2011 the appeal to this Court was filed. A number of events occurred thereafter.

1. On 22 July 2011 Rothwell amended the Development Application by submitting a further report from its consultant, noting that the government agencies had not, to that point in time, supported the alignment of the proposed collector road. The report accompanying that amended application noted that a new road could be proposed to address the concerns of those agencies. A drawing described as drawing or plan 08070/7 was provided to the Council in order to clarify the change in the horizontal alignment of the proposed road and indicating the manner in which it differed from the alignment shown in the Development Application as first lodged. That change in alignment had the following consequences:

(i) a reduction in the overall road width within Mr Barker's land from 18m to 12.6m;

(ii) an overall westward shift in the alignment within Mr Barker's land of between 9m and 15m at road chainage 270m to 340m;

(iii) an offset of approximately 24m or greater from the top bank of Cunningham's Creek to the eastern road verge between road chainage 270m and 340m; and

(iv) a westward shift of approximately 22m or greater to the revised road verge at chainage 400m to 480m.

1. The revised road alignment proposed by the amendment was provided to the government agencies. In response, the Department of Primary Industries issued its general terms of approval under the Fisheries Management Act 1994. On 24 August 2011 the Marine Parks Authority confirmed that it would be prepared to issue consent under the Marine Parks Act 1997 and the Marine Parks (Zoning Plan) Regulation 1999, subject to certain conditions being imposed on the development consent.

1. The only government agency indicating a disinclination to issue general terms of approval or otherwise indicate concurrence was the New South Wales Office of Water. On 22 August 2011 it advised the Council that it would refuse to issue a controlled activity approval under the Water Management Act 2000.

1. As a consequence of the last notification and conformably with the requirements of the EPA Act, on 1 September 2011 the Council determined to refuse the Development Application. The sole reason for that refusal was that the Council lacked power to grant consent by reason of the refusal of the New South Wales Office of Water to issue General Terms of Approval under the Water Management Act .

Amended Development Application: impact on Lot 6

1. The impact upon Lot 6 as a result of the amended road alignment is addressed in evidence from a surveyor retained by Mr Barker. That evidence indicates that the area of Lot 6 between the Pacific Highway and the new alignment is reduced in area to about 1986 m 2 from an area that approximated 4158 m 2 .

1. It is the Development Application, as amended, that is the application to be determined in the present appeal. Rothwell accepts that it did not obtain the consent of Mr Barker to amend the plan in accordance with its amended application. Mr Barker contends that the terms of the Deed did not authorise Rothwell to amend the Application in that manner. Accordingly, his consent to the Development Application does not extend to authorise the Court when determining the appeal to grant consent to the application as so amended. Thus, the question posed for separate determination.

The Deed

1. Before addressing that question, I should note the relevant provisions of the Deed. It commences with a number of recitals. Relevantly, those recitals include:

" ...

D. Barker intends for that part of Lot 6 zoned Residential 2a to be subdivided into residential lots ("the Lot 6 Subdivision").

E. The main access for both the Rothwell Subdivision and the Lot 6 Subdivision shall be a public road to be built and dedicated to Coffs Harbour Council ("the Council") which connects the Rothwell Property and Lot 6 as well as other properties to Moonee Beach Road in the approximate position shown on the Plan 08070/1 annexed hereto and called RDM Collector Road Alignment Investigation ("the Public Road").

F. Because Rothwell wishes to proceed with the Rothwell Subdivision it has agreed subject to obtaining the consent of the Council to the construction and dedication of the Public Road ("the Consent"), that it will pay for construction of the Public Road and the parties wish to record the terms of such agreement."

1. Clause 1 of the Deed is material. It provides:

"1. Barker hereby consents to Rothwell lodging a Development Application or any other Application with the Council and any other public authority necessary to obtain consent to construct and dedicate the Public Road to the Council, and will sign any form of consent required by the Council or any other public authority for the purpose of processing such applications."

1. Clauses 2, 3 and 4 relate to the obligation of Rothwell to construct the road following the grant of consent. They also include the obligation of Mr Barker to take all steps necessary to have the road that is the subject of the consent, dedicated as a public road, such dedication to be in favour of the Council.

1. Clause 5 provides for Mr Barker to allow access to Lot 6 for the purpose of road construction, including an area of that Lot a little wider than the intended road reserve to allow for construction activities.

1. Clauses 6 and 7 of the Deed should then be noted. They provide as follows:

"6. Rothwell shall construct the road and provide for any new services as required by Lots 5, 6 and 7 to fulfil their capacity, that is, water and sewerage connection if required.

7. Rothwell agrees with Barker that it will not alter the position of the Public Road from the approximate position shown on Plan 08070/1 without the prior consent of Barker"

Regulatory provisions: landowner's consent

1. It is next necessary to identify the regulatory provisions that are fundamental to the determination of the question posed for separate determination. Section 78A of the EPA Act provides for the making of a development application "subject to the regulations". Subsection (9) of that section provides that the regulations may specify "other things that are required to be submitted with a development application."

1. Clause 49 of the Environmental Planning and Assessment Regulation 2000 ( the Regulation ) provides that a development application may be made by the owner of land to which the development application relates or by any other person with the consent in writing of the owner of that land. Clause 50(1)(a) then requires that a development application must contain the information and be accompanied by the documents specified in Pt 1 of Sch 1.

1. The form which cl 1(1)(i) of Pt 1 of Sch 1 presently takes requires that included among the information that a development application must contain is:

"(i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner's consent is required by this Regulation".

That provision, at least in those terms, was inserted by the Environmental Planning and Assessment Amendment (Pt 3A Repeal) Regulation 2011. Prior to that amendment paragraph (i) of cl 1(1) of Pt 1 of Sch 1 to the Regulation read as follows:

"(i) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application".

1. In its submissions, Rothwell draws attention to cl 27(a) of Pt 4 of Sch 7 to the Regulation. Clause 27 relevantly provides:

"This Regulation as in force immediately before its amendment by the amending regulation continues to apply to the following:

(a) the determination of a development application made under Pt 4 of the Act but not finally determined before the commencement of the amending regulation."

The "amending regulation" is the 2011 Regulation to which I have referred.

1. Rothwell submits that by operation of cl 27 of Sch 7, the terms of cl 1(1)(i) of Pt 1 of Sch 1, prior to the 2011 amendment, apply to the present development application. I accept that submission. If that was not the case, problems or inconvenience might arise in the determination of development applications lodged before the amendment if, by amendment, the requirements for a valid development application, including the requirement pertaining to landowner's consent, were changed. The purpose of cl 27 seems to be that the determination of a pre-amendment development application should be undertaken as if the amendment, including any amendment directed to the making of a development application, had not been made.

1. It is for this reason I favour the submission that the provisions of Sch 1 prior to the amendment by the 2011 Regulation should be applied in the present case. However, I hasten to record the acknowledgment by both parties that nothing turns upon the difference between the two provisions for the purpose of determining the present question.

Mr Barker's accepted position

1. It is accepted by Mr P McEwen SC, appearing for Mr Barker, that:

(i) the Deed provided to the Council, as a document accompanying the Development Application, was a statement signed by Mr Barker as owner of Lot 6 to the making of the Application or, in the alternative, the Deed was evidence that Mr Barker, as owner of Lot 6, being the land on which development was to be carried out, consented to the Application in accordance with cl 1(1)(i) of Pt 1 of Sch 1 to the Regulation;

(ii) that the Application as lodged accorded with the terms of the Deed in identifying that development which the Deed sought to identify; and

(iii) that the amendment to the Development Application made by Rothwell on 22 July 2011, being the Application presently before the Court, is an amendment within the meaning of cl 55 of the Regulation (cf Radray Construction Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292).

Mr Barker's submission

1. Without intending disservice to the considered and careful submissions of Mr McEwen SC, those submissions may be summarised as follows:

(i) the location of the collector road in the amended application is not in the approximate position of the road identified by plan reference in the Deed (see recital E and clause 7);

(ii) no consent to the altered alignment of the road has been given, contrary to the requirement of cl 7 of the Deed;

(iii) the consent given to lodgement of the Development Application as evidenced by the Deed, did not extend to consent to amendment of the application in the manner proposed; and

(iv) in consequence, the Court is not able to determine the application by granting development consent as there is no consent of the owner of Lot 6 meeting the requirements of cl 50(1)(a) and cl 1(1)(i) of Pt 1 of Sch 1 to the Regulation.

Rothwell and Council's submissions

1. Unsurprisingly, the submissions of both Rothwell and the Council coincide. Again, without intending disservice to the careful submissions made by those parties, their submissions may be summarised as follows:

(i) the consent to the making of the Development Application for the construction of the collector road through Lot 6 was given by Mr Barker;

(ii) clause 1 of the Deed reflects the broad terms in which that consent was given;

(iii) once that consent was given for the purposes of the EPA Act and Regulation, the Development Consent was able to be amended, the absence of Mr Barker's consent to the amendment being irrelevant to the exercise of the powers and discretions provided by the EPA Act, as they relate to that Application;

(iv) the Council or the Court is able, as a matter of power, to process and determine the Development Application, in the manner provided by the EPA Act and Regulation, including by consenting to an amendment of the Application in accordance with cl 55 of the Regulation; and

(v) clause 7 of the Deed did not gainsay that proposition, its focus being upon change in alignment in the course of road construction following the grant of development consent.

1. I am of the opinion that, in substance, the submissions of Rothwell and the Council should be accepted. Although it was submitted otherwise on behalf of Mr Barker, the question in this matter, so it seems to me, is substantially similar to that determined by Bignold J in Rose Bay Afloat Pty Ltd v Woollahra Council [2002] NSWLEC 208; (2002) 126 LGERA 36.

1. The facts of that case, so far as they are relevant to the present question, are usefully summarised in the headnote. The owner of the bed of Sydney Harbour, namely the Waterways Authority, had granted owners consent to the lodgement of a development application for a new floating restaurant. Amendments were made to the development application by the applicant following its refusal by the Council. On appeal to this Court a question arose as to whether there was jurisdiction to determine the application in light of the amendments that were made to the application and for which the Waterways Authority, as landowner, had not given its consent. In that case the amendment made involved an additional area over the bed of the harbour; in the present case the amendment involves a change in location of the road that was the subject of the Development Application to which Mr Barker consented as owner of Lot 6.

1. In Rose Bay Afloat Pty Ltd , Bignold J addressed the issue presently calling for consideration by posing a number of subsidiary questions. The third question that he posed was, "Has the landowner's consent been granted to the applicant's amended development application?". He addressed this question as involving a determination of fact which he answered in the negative. However, the fourth question that he posed for consideration was, "Is the consent of the landowner required under the Regulation to the applicant's proposed amended development application?". He answered that question "no". In giving that answer his Honour reasoned:

"86. There is an express requirement for landowner's consent to the lodging of a development application by a person who is not the owner of the land to which the development application relates ( vide cl 49 ) and there is a similar requirement for landowner's consent in respect of an application to modify a development consent where the applicant is not the "owner of the land on which the development is to be carried out" (vide cl 115(1)(h).

87. In contrast to these express requirements, cl 55 imposes no such or similar requirement. Instead, it permits "the applicant " to amend or vary a development application (but only with the agreement of the consent authority).

88. There is, in these circumstances, no justification, to seek to imply into the entitlement vested in an applicant that is created by cl 55, a requirement for land owner's consent in a case where the applicant is not the owner of the land to which the development application relates.

89. Nor do I think that there is any legislative gap or omission in cl 55 . On the contrary, the Regulation appears to have been drafted in recognition of the principle established by the decisions of this Court that I have earlier referred to (commencing with the Royal Motor Yacht Club case) that where a landowner has relevantly consented to the lodging of a development application in respect of its land, it is to be taken as intending the full development assessment process or course contained in the EP&A Act, Pt 4 and Pt 6 of the Regulation, to apply to that development application. Such process or course clearly includes the amendment, or variation of the development application by the applicant, in accordance with cl 55 of the Regulation."

1. I respectfully concur in the observations made by Bignold J in that case. The provisions of the Regulation to which he referred have not changed in any material respect.

1. The position there articulated reflects, in principle, decisions made by this Court in respect of questions of the present kind. Those decisions have been applied over a number of years and by several judges. They are referred to in the judgment in Rose Bay Afloat Pty Ltd.

1. The result that the consent of Mr Barker is not required for the amended Development Application to remain a valid application under the EPA Act and Regulation works no injustice to him. A grant of development consent has no impact upon proprietary rights. In particular, if the result of the present appeal to this Court is that development consent is granted to construction of the collector road, that consent, of itself, will afford no right to Rothwell to enter upon Lot 6 and undertake road construction. In that regard the observations of Cripps CJ in Wharf 11 Pty Ltd v Sydney City Council [1991] NSWLEC 21 are relevant to be noticed. His Honour there said:

"A development consent raises a regulatory prohibition, namely, that development cannot be undertaken unless consent is given by a local authority. A development consent does not authorise development. Generally speaking, the process is not concerned with relations between owners and other people who wish to implement the development consent. The fact that a development consent runs with the land does not carry with it the notion that once a development consent has been granted the development can be undertaken on the land against the wishes of the owner."

1. The right of Rothwell to enter upon Lot 6 in order to implement any development consent for road construction may turn upon the provisions of the Deed. However, obligations of the parties under the Deed are not matters to be considered by this Court when determining an appeal under s 97 of the EPA Act.

1. If the submissions made by Mr McEwen are correct, the consequence would be that the terms in which a landowner's consent is given to the making of a development application impinge upon the exercise of the statutory discretion afforded by the EPA Act to a consent authority when determining that development application. This is a significant consequence. An example is sufficient to indicate why this is so.

1. A consent authority may, by exercising the discretion afforded to it under s 80A of the EPA Act, impose a condition upon the grant of development consent that alters, in some respects, the development identified in the development application (see, for example, s 80A(1) paragraphs (c) and (g) as well as s 80A(4)). According to the submission, the power to require alteration in this manner is circumscribed or fettered by the terms in which the landowner's consent has been given to the making of the development application. The argument extends to a submission that any development consent that did not accord with the terms in which landowners consent to the making of the application was given would result in invalidity of that development consent.

1. Such a result is neither the consequence of the express provisions of the EPA Act nor is that result to be implied from the terms of the Act and the Regulation. For these reasons I propose to answer the question posed for separate determination in the affirmative.

1. Lest there by any doubt as to the consequence of this answer, it is intended to determine that the consent of Mr Barker, as the owner of Lot 6, to the making of the Development Application, is sufficient for the purpose of cl 1(1)(i) of Pt 1 of Sch 1 to the Regulation so as to enable that Development Application to be determined in its amended form. That consent is evidenced by cl 1 of the Deed. In the result, the development appeal instituted by Rothwell may proceed to a determination on issues other than that raised by the separate question.

1. It was accepted by Mr McEwen that if I answer the separate question in the affirmative, his client has no further role to play as a party to the appeal. He initially indicated that in the event that I answer the question this way, Mr Barker should be dismissed as a third respondent. However, in deference to his later submission that I should not, at present, make the order that he had initially indicated, I will refrain from making any order directed to the constitution of the proceedings until these reasons can be considered.

Orders

1. In consequence, the orders that I presently make are:

1. The separate question, as posed, is answered: "Yes".

2. Costs are reserved.

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Decision last updated: 07 March 2012