Sertari Pty Ltd v Quakers Hill SPV Pty Ltd
[2014] NSWCA 340
•03 October 2014
Court of Appeal
New South Wales
Case Title: Sertari Pty Ltd v Quakers Hill SPV Pty Ltd Medium Neutral Citation: [2014] NSWCA 340 Hearing Date(s): 26 August 2014 Decision Date: 03 October 2014 Before: McColl JA at [1];
Barrett JA at [2];
Tobias AJA at [17]Decision: 1. Grant leave to appeal.
2. The appeal be dismissed.
3. The applicant to pay the first respondent's costs of the summons for leave to appeal and the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ENVIRONMENT AND PLANNING - appeal against approval of a pedestrian management plan - whether approved pedestrian management plan satisfied a deferred commencement condition - whether underlying development consent only approved vehicular and not pedestrian use of a right of carriageway - development consent not ambiguous - whether reasons given by Land and Environment Court in granting development consent form part of consent - whether development application incorporated into consent expressly or by necessary implication Legislation Cited: Conveyancing Act 1919 (NSW) s 88B
Environmental Planning and Assessment Regulation 2000 (NSW) cl 266
Environmental Planning and Assessment Act 1979 (NSW) ss 80, 97
Land and Environment Court Act 1979 (NSW) ss 39, 56ACases Cited: Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; (2006) 148 LGERA 439
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Bar-Mordecai v Attorney-General (NSW) [2012] NSWCA 207
Baulkam Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395
Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472
Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567
Kogarah Municipal Council v Golden Paradise Corporation [2005] NSWCA 230; (2005) 12 BPR 23,651
Miller-Mead v Minister of Housing and Local Government (1963) 2 QB 196
Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSWSC 252
Nirimba Developments v Blacktown CC & Anor [2006] NSWLEC 739
Quakers Hill SPV Pty Ltd v Blacktown City Council and Sertari Pty Ltd [2013] NSWLEC 1133
Ross v Lane Cove Council [2014] NSWCA 50
Ryde Municipal Council v The Royal Ryde Homes (1970) 91 WN (NSW) 440
Sertari Pty Limited v Quakers Hill SPV Pty Ltd [2013] NSWLEC 208
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Stebbins v Lismore City Council (1988) 64 LGRA 132
Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508Texts Cited: J Tarrant, "Construing Undertakings and Court Orders" (2008), 82 ALJ 82
P Herzfeld, T Prince and S Tully, Interpretation and Use of Legal Sources (2013, Thomson Reuters)Category: Principal judgment Parties: Sertari Pty Limited (Applicant / Appellant)
Quakers Hill SPV Pty Ltd (First Respondent)
Blacktown City Council (Second Respondent)Representation - Counsel: Counsel:
P Tomasetti SC / A Pickles (Applicant / Appellant)
A Galasso SC / M Astill (First Respondent)- Solicitors: Solicitors:
Stephen Wawn & Associates (Applicant / Appellant)
Storey & Gough Lawyers (First Respondent)
Sparke Helmore (Second Respondent)File Number(s): 2013/384918 Decision Under Appeal - Before: Pain J - Date of Decision: 05 December 2013 - Citation: Sertari Pty Limited v Quakers Hill SPV Pty Ltd [2013] NSWLEC 208 - Court File Number(s): 10601 of 2013
JUDGMENT
McCOLL JA: I agree with Tobias AJA's reasons and the orders his Honour proposes. I also agree with Barrett JA's reasons. There is nothing I can usefully add to their Honours' comprehensive and cogent analyses of the appeal.
BARRETT JA: I have had the advantage of reading in draft the reasons to be published by Tobias AJA. I agree that, for those reasons, leave to appeal should be granted but the appeal should be dismissed with costs.
I would merely add that I consider the case to be straightforward and the several arguments advanced by the applicant to be quite unsustainable. I shall state my reasons briefly.
The first respondent, being dissatisfied with the decision of Blacktown City Council with respect to a development application, appealed to the Land and Environment Court under s 97 of the Environmental Planning and Assessment Act 1979 (NSW).
The development application was dated 6 September 2006 and sought development consent for "use of the right of way" being, in context, a right of carriageway affecting the applicant's property referred to in Tobias AJA's reasons as "No 7" and benefiting the first respondent's property referred to by his Honour as "No 9".
The orders made by the Land and Environment Court on 30 July 2008 are set out at [23] of Tobias AJA's reasons. By order 2, that court granted consent to "use of" the right of carriageway. By s 39(5) of the Land and Environment Court Act 1979 (NSW), the decision of the Land and Environment Court embodied in order 2 is deemed to be the final decision of Blacktown City Council on the application of the first respondent dated 6 September 2006.
The terms of the right of carriageway are set out in an instrument under s 88B of the Conveyancing Act 1919 (NSW) in which references to the "dominant tenement" are references to the first respondent's No 9 property and references to the land affected or burdened are references to the applicant's No 7 property. The right of way is defined in these terms:
"Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment and every person authorised by him and lessees, employees, customers, patrons, invitees and licencees [sic] of any business conducted from the improvements erected or to be erected on the dominant tenement to go, pass along and re-pass at all times and for all purposes with or without animals and with or without vehicles or both to and from the said dominant tenement or any part thereof."
The "use" to which the consent deemed given by the court order extends is the use described in the s 88B instrument by the words:
"...to go, pass along and re-pass at all times and for all purposes with or without animals and with or without vehicles or both ..."
The deemed consent thus extends to passage along the easement site by persons walking and by persons using (or accompanied by) animals or vehicles or both.
The deemed consent was, by the court's order 2, subject to several conditions. The conditions were contained in the annexure "A" to the orders of 30 July 2008. One such condition was condition 3 in Part A of annexure "A" (dealing with "Deferred Commencement Matters") set out by Tobias AJA at [24]. Under that condition, a pedestrian management plan was to be "prepared for and submitted to Council for the approval of the Director, Transport and Technical Services" before certain events occurred in relation to the development of the applicant's No 7 property. The condition prescribed specifications to which the pedestrian management plan was to conform.
Authority for the imposition of condition 3 in Part A of annexure "A" was conferred by s 80(3) of the Environmental Planning and Assessment Act 1979 (NSW) which makes provision for "deferred commencement" consent. A "deferred commencement" consent is one that is made subject to a condition "that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition".
After detailing the several conditions as to deferred commencement matters in Part A, the annexure "A" to the court's orders stated:
"On satisfaction of the deferred commencement conditions above the consent shall then operate in accordance with the conditions in Part B."
Part B of the annexure "A" contained several conditions, including conditions 12 and 14 set out by Tobias AJA at [25].
Construed in the particular statutory context, the court's orders of 30 July 2008 brought into existence deemed consent of the Council for use of the easement site for passage on foot, passage with animals, passage with vehicles and passage with both animals and vehicles, but with the deemed consent to be operative only after satisfaction of the several conditions as to deferred commencement matters in Part A of annexure "A", including the condition as to preparation and submission of a pedestrian management plan.
The order did not cause the deemed consent to be subject to any qualification or restriction of the use that the deemed consent allows, being use according to the full extent contemplated by the terms of the right of carriageway. In particular, there is no qualification or restriction regarding use by persons travelling on foot. But the consent that is, in that sense, unqualified and unrestricted will remain inoperative to permit any use at all until the particular step concerning a pedestrian management plan envisaged by condition 3 in Part A of annexure "A" is taken in relation to the general issue of use by persons travelling on foot. And even after that step is taken, conditions 12 and 14 in Part B of the annexure "A" will have the effect that no occupation certificate for the residential flat building on the first respondent's No 9 property will be forthcoming unless and until the further steps identified in those conditions have been taken.
The scope and effect of the consent deemed to exist by virtue of the making of the court's orders, as just outlined, emerge clearly from the terms of the orders themselves (including the annexure "A"), construed in the light of the application made by the first respondent and the s 88B instrument that formed part of it. The court had no occasion to approve or disapprove any particular scheme or mode of pedestrian use. Its orders were made on the express footing that that matter was for future consideration and decision by the Council.
TOBIAS AJA: The applicant, Sertari Pty Limited (Sertari), is the registered proprietor of Lot 1 DP 806691 known as 7 Nirimba Drive, Quakers Hill (No. 7) and upon which is located the licensed hotel known as "Quakers Inn" (the Tavern). The first respondent, Quakers Hill SPV Pty Limited (Quakers Hill), is the registered proprietor of Lot 1 DP 853847 known as 9 Nirimba Drive, Quakers Hill (No. 9). No. 7 is burdened by a right of carriageway 7 metres wide and approximately 35 metres in length (ROC) created by operation of s 88B of the Conveyancing Act 1919 (NSW) upon registration of DP 806691 and which benefits No. 9 as the dominant tenement.
The terms of the ROC permit every person authorised by the owner of the dominant tenement to, relevantly,
"pass along and re-pass at all times and for all purposes with or without animals and with or without vehicles or both to and from the said dominant tenement or any part thereof."
The strange thing about the ROC is that it joins two parts of a 20 metre wide public road, Nirimba Drive, to its north and to its south. In order to access No. 9 directly via Nirimba Drive and without trespassing, it is necessary for both vehicles and pedestrians to pass along the ROC. No. 9 has a frontage to the northern section of Nirimba Drive.
In early 2006 Quakers Hill's predecessor in title, Nirimba Developments Pty Ltd (Nirimba Developments) being the then registered proprietor of No. 9, applied to the second respondent, Blacktown City Council (the Council), for development consent to erect upon its land two five level residential flat buildings comprising 236 dwellings above two levels of basement parking. The Council did not determine this application and it was deemed refused whereupon Nirimba Developments appealed to the Land and Environment Court (the LEC).
As the land the subject of the application referred to in the preceding paragraph did not include any part of No. 7 including the ROC, on 7 September 2006 Nirimba Developments applied to the Council for consent to use the ROC for the purpose of access to the proposed development of No. 9. The application form described the proposal in respect of which consent was sought as "use of the right of way". As that application was also not determined by the Council, Nirimba Developments appealed to the LEC shortly before 23 October 2006 (the ROC appeal). Both appeals were listed before Commissioner Bly but he only proceeded to hear that with respect to the erection of the residential flat buildings on No. 9 and adjourned that with respect to the use of the ROC. As to the former, on 25 October 2006 the Commissioner granted development consent following amendments to the proposal to which the Council had agreed: Nirimba Developments v Blacktown CC & Anor [2006] NSWLEC 739.
The determination of the ROC appeal was delayed due to the refusal of Sertari, as the owner of the servient tenement, to grant its consent to the making of the original application. Accordingly, proceedings were instituted by Nirimba Developments in the Equity Division of the Supreme Court seeking a mandatory order that consent be given. Such an order was made by Windeyer J on or about 22 March 2007: Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSWSC 252. An appeal by Sertari against that decision to this Court was dismissed on 15 November 2007: Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324.
The ROC appeal then came before Commissioner Murrell on 23 May 2007. The hearing extended over some four days and concluded on 7 March 2008. On 30 July 2008 the Commissioner relevantly made the following formal orders:
"1 The appeal, in respect of the right of carriageway burdening Lot 1 DP 806691 that benefits the property known as No. 9 Nirimba Drive, Quakers Hill, is upheld.
2 The development application submitted to Blacktown City Council for use of the above right of carriageway is determined by the granting of consent subject to a deferred commencement and other conditions as contained in Annexure 'A'."
Part A of Annexure A contained three deferred commencement conditions imposed pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act). The first was the requirement that Nirimba Developments as the applicant prepare and submit to the Council for approval a Traffic Control Plan. The second required the preparation and submission to the Council for approval of a Construction Traffic Management Plan. The third, which is the genesis of the present litigation, was in the following terms (deferred condition 3):
"3. A Pedestrian Management Plan shall be prepared and submitted to Council for the approval of the Director, Transport and Technical Services prior to commencement of excavation or the issue of a Construction Certificate for the subject Residential Flat Building development on Lot 1, DP 853847, No. 9 Nirimba Drive, Quakers Hill. The Plan shall detail the provision of a safe pedestrian path of movement between Quakers Hill Railway Station and the land to the north-west of Lot 1, DP 806691. It shall also make provision for safe pedestrian access from Railway Avenue to the Quakers Inn. A copy of this Plan is to be provided to the owner of Lot 1, DP 806691. The plan shall provide for the employment of at least three (3) RTA traffic control monitors during the construction phase of the development." (Emphasis added.)
Part B of Annexure A contained the general conditions of consent. Conditions 12 and 14 were relied upon by Sertari and provided as follows:
"12. Any works required by the Pedestrian Management Plan shall be completed prior to the issue of any Occupation Certificate for the Residential Flat Building development on Lot 1, DP 853847, No. 9 Nirimba Drive, Quakers Hill.
...
14. The applicant shall provide a zebra crossing across Nirimba Drive in accordance with the Pedestrian Management Plan approved under these conditions. These works shall be completed prior to the issue of any Occupational Certificate for the development."
On or about 29 November 2011 Quakers Hill, who had now acquired No. 9 from Nirimba Developments, lodged with the Council a Pedestrian Management Plan (PMP) in purported compliance with deferred condition 3. However, the Council did not express its satisfaction with the PMP as a consequence whereof Quakers Hill instituted proceedings in the LEC on 23 March 2012 pursuant to s 97(3) of the EP&A Act (the PMP appeal). That provision was as follows:
"(3) An applicant who is dissatisfied with a decision that a consent authority is not satisfied as to a matter, being a matter as to which it must be satisfied before a 'deferred commencement' consent under section 80(3) can operate, may appeal to the Court within 6 months after the consent authority notifies the applicant of its decision."
The PMP appeal was heard by Commissioner Dixon over three days commencing on 7 December 2012 and concluding on 22 May 2013. On 23 July 2013 the Commissioner handed down her reasons for judgment (Quakers Hill SPV Pty Ltd v Blacktown City Council and Sertari Pty Ltd [2013] NSWLEC 1133) and made the following formal orders:
"(1) The appeal is upheld.
(2) That the application seeking the Respondent's [the Council's] satisfaction of deferred commencement condition Part A condition 3 of development consent 062533 be approved."
Three versions of the PMP in satisfaction of deferred condition 3 were tendered by Quakers Hill before Commissioner Dixon: the first was referred to by the Commissioner (at [12]) as a "Give way to pedestrians option"; the second and third were both referred to as the "Shared zone option". Both Quakers Hill and the Council invited the Court to approve the third option. As its description indicates, that option involved pedestrians and vehicles sharing the ROC.
Sertari objected to each version of the PMP for three reasons of which the first and third are presently relevant. The first, which was the subject of the appeal to this Court, was that the versions of the PMP before Commissioner Dixon were different from the PMP approved by Commissioner Murrell and, therefore, Commissioner Dixon had no jurisdiction to approve any of them. The second, which Commissioner Dixon determined adversely to Sertari, was that the proposed shared zone was unsafe for pedestrians and, therefore, the PMP did not satisfy the requirements of deferred condition 3. As the issue raised by this second objection involved a pure finding of fact, it was beyond further challenge.
Commissioner Dixon rejected Sertari's contentions and determined to approve the PMP and made the orders referred to at [27] above. Sertari then appealed to a judge of the LEC pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (the Court Act) from Commissioner Dixon's decision. An appeal under that section is confined to a question of law. The Council filed a submitting appearance.
The appeal was heard by the primary judge, Pain J, on 21 November 2013 and on 5 December 2013 her Honour delivered judgment dismissing the appeal: Sertari Pty Limited v Quakers Hill SPV Pty Ltd [2013] NSWLEC 208. On 3 March 2014 Sertari filed a summons seeking leave to appeal to this Court from her Honour's orders. Although I am not entirely convinced that leave to appeal should be granted, nevertheless having heard full argument on what was a concurrent hearing, I am prepared to grant leave to appeal but otherwise the appeal in my view should be dismissed. My reasons follow.
The Issues on the Appeal
The issues before Commissioner Dixon, the primary judge and this Court may be summarised by reference to Sertari's submissions on the appeal:
·The PMP approved by Commissioner Dixon was different from that approved by Commissioner Murrell: in particular, Commissioner Murrell only approved a pedestrian path of movement that did not involve the use of the ROC by pedestrians seeking to access No. 9;
·The development application to use the ROC which was approved by Commissioner Murrell only contemplated its use by vehicular and not pedestrian traffic;
·Alternatively, Commissioner Murrell only approved a pedestrian path of movement which conformed with either of the two pedestrian routes depicted on Figure 2 which formed part of her judgment, neither of which involved shared use of the ROC by pedestrians and vehicles;
·Alternatively, Commissioner Murrell approved a particular pedestrian path of movement between Quakers Hill Railway Station and No. 9 (being that advanced by a Mr Logan) which did not involve any use of the ROC by pedestrians, the purpose of the PMP being only to encourage pedestrians to use this path of movement for their own safety by avoiding pedestrian/vehicular conflicts;
·The effect of Commissioner Murrell's judgment was, therefore, to proscribe any PMP which provided for the use of the ROC as a safe pedestrian path of movement for pedestrians seeking access to the development on No.9;
·In order to determine what Commissioner Murrell approved in terms of a particular pedestrian path of movement, it is necessary to refer to her judgment which forms part of the orders that she made granting consent to the use of the ROC for the benefit of the development on No. 9;
·In addition, it was necessary to refer to the development application which was the subject of the ROC appeal as well as the statement of environmental effects which accompanied that application and which made it clear that use of the ROC for pedestrian access was not part of the application and, therefore, was not approved by her;
·Accordingly, Commissioner Dixon had no jurisdiction to approve a PMP which provided for shared access for pedestrians and vehicles over the ROC.
It will be appreciated from the issues so defined that it will be necessary to refer in some detail to the judgments of Commissioners Murrell and Dixon, particularly the former.
The Judgment of Commissioner Murrell
(a) Preliminary observations
Before considering Commissioner Murrell's judgment two observations need to be made. The first is that the judgment appears to have been either given orally in court or otherwise dictated for there are a number of errors in its transcription. Regrettably the Commissioner apparently did not see fit to revise her judgment as transcribed to ensure that those errors were deleted. Nevertheless, I do not consider that that deficiency prevents a clear understanding as to what she approved.
The second matter is that Sertari did not contend that deferred condition 3 was ambiguous. It was clear in its terms and, as Quakers Hill submitted, it did not purport on its face to favour any particular pedestrian path of movement but left that to the drafter of the PMP subject to the approval of the Director, Transport and Technical Services of the Council. Relevantly, the critical part of the condition was the requirement that the PMP
"shall detail the provision of a safe pedestrian path of movement between Quakers Hill Railway Station and the land to the north-west of Lot 1, DP 806691." (Emphasis added)
In other words, it required detail of the provision of "a" safe pedestrian path of movement between the two points identified. How that was to be achieved and the details of the requirements of the plan that would ensure that any such chosen path of movement was safe for pedestrians was a matter for the preparer of the plan and the relevant council officer whose task it was to approve or reject it.
Accordingly, if one was to have regard to deferred condition 3 on its own, there could be no doubt, and so much was conceded, that the PMP approved by Commissioner Dixon complied with its literal terms. It is for this reason that Sertari was forced to argue that the condition needed to be read in conjunction with Commissioner Murrell's judgment upon the basis that, when so combined, the Commissioner only approved at most, the two pedestrian routes she identified in Figure 2 annexed to her judgment, neither of which involved the shared use of the ROC. Accordingly the only safe pedestrian path of movement which could be included in the PMP that would satisfy deferred condition 3 was one or other of those identified by the Commissioner in Figure 2, or which otherwise did not involve pedestrian use of the ROC.
In this respect Figure 2, which is not referred to in any of the conditions of consent including deferred condition 3, illustrated two routes neither of which involved the shared use of the ROC. The first route, which was supported by Mr Hazell, a traffic engineer retained on behalf of the Council and Mr McLaren, a traffic engineer retained on behalf of Sertari, and which was referred to in Figure 2 as their "pedestrian desire line", was via a footpath adjacent to the Tavern but located immediately to the west of the ROC upon Sertari's land. On the other hand the "pedestrian desire line" advocated by Mr Logan, a traffic engineer retained on behalf of Nirimba Developments (the predecessor in title of Quakers Hill), involved pedestrians crossing Nirimba Drive at either end of the ROC and then proceeding along a pathway located upon land owned by Railcorp but which was leased to the Council.
It was asserted by Sertari that as none of the experts advocated the shared use of the ROC by pedestrians and vehicles, it followed that the "safe pedestrian path" referred to in deferred condition 3 was confined to one or other of the routes advocated by Mr Hazell and Mr McLaren on the one hand and Mr Logan on the other. Whether this is so or not involves a consideration of Commissioner Murrell's reasons. For this purpose, I am prepared to assume, without deciding, that notwithstanding any lack of ambiguity in the terms of deferred condition 3, it is permissible to have regard to the Commissioner's reasons for the purpose of determining whether she in fact did not approve use of the ROC by pedestrians or sought to confine any pedestrian path of movement to one or other of the routes depicted in Figure 2.
(b) The Commissioner's judgment
Commissioner Murrell commenced her judgment under the heading "Background" by referring to a memo dated July 2006 prepared by the senior transport management officer of the Council in response to a request for comments on the proposed residential flat development on No. 9. This memo would have formed part of the evidence before Commissioner Bly. It relevantly stated:
"A temporary footway has been established in the rail corridor on the eastern side of the right of carriageway. This temporary arrangement with Railcorp was most likely established during the original construction of the Quakers Hill parkway overbridge, when a pedestrian connection from the bridge to Nirimba Drive was established. Enquiries with Property section indicated that details concerning the duration of the lease with Railcorp is not clear, and this matter will be pursued with the rail authorities. This matter will need to be clarified as there is rail duplication proposal between Quakers Hill and Schofields as part of the North-west Structure Plan over the next four years and the land within the rail corridor currently utilised for the footway will need to be secured ...
Whilst traffic numbers are not high, as a result of this development this arrangement involves crossing Nirimba Drive twice which itself could be a safety hazard. However, this scenario is unlikely to take place and pedestrians will tend to walk the shortest route through the carpark to connect to footways on the western side of Nirimba Drive.
A continuous footway provision on the western side of Nirimba Drive would cater for the increased demand of pedestrians and potential cyclists. In this regard it may be appropriate to consider realigning the angle parking into the rail corridor to create sufficient space for the footway on the western side of Nirimba Drive."
At [10] of her reasons, Commissioner Murrell noted that Sertari raised both legal issues and merit issues. Relevantly the fourth legal issue was:
"Whether development consent can be granted to the application given the lack of precision of the description in this application of the proposed development."
The Commissioner did not appear to deal with this issue.
As to the merit issues, the following are presently relevant:
"5. Whether the use of the right of way by vehicular and pedestrian traffic likely to be generated by the proposed development, particularly when coupled with the use of the parking area of the Quakers Hill Inn by its patrons and suppliers, will give rise to an unacceptable level or risk to the safety of those who use the car park.
6. Whether the likely increased traffic flow traversing the right of way arising from the proposed development will unacceptably impact upon the operations of the Quakers Hill Inn."
At [14] the Commissioner set out the terms of the s 88B instrument relating to the ROC. Then, under the heading "Evidence and Findings", she first noted that the traffic experts were directed to confer on the question of the traffic and pedestrian impacts of the proposal on the ROC and that a joint statement had been submitted by Mr Hazell and Mr McLaren on behalf of the Council and Sertari and Mr Logan on behalf of Quakers Hill.
The Commissioner then referred to the desired pedestrian routes nominated by the experts at [16] of her reasons stating:
"The experts agreed on the existing and potential traffic and pedestrian flows. Sketches were provided to show the desired pedestrian route in accordance with Mr Hazell and Mr McLaren and the route of Mr Logan where the road is crossed twice as identified in the traffic report. These routes are shown in the attached figure."
The attached figure is Figure 2.
Then at [17] the Commissioner referred to Mr Logan's evidence whereby he considered:
"that the use of the existing path way adjoining the railway land to be safe and a reasonably convenient pedestrian route whereas as [sic] Mr Hazell and Mr McLaren said that the only appropriate means for safe pedestrian management is by a path-way immediately adjoining the tavern building."
At [18] the Commissioner then set out some selected comments from Mr Hazell's statement. The latter accepted that the traffic generation of the proposed development of 236 units could be adequately catered for by the 7 metre wide ROC. However, he did not consider that the subject application adequately dealt with the impact of traffic on existing and future pedestrians using the ROC as it had been constructed as a carpark and not as a road and was therefore unsuitable for carrying the anticipated traffic flows of the construction vehicles estimated for the site. The quotation from Mr Hazell's statement then continued as follows:
"In my opinion pedestrians generated by the proposed residential development will not use a footpath on the opposite side of the road [Mr Logan's desired pedestrian route] as they will take the shortest route between the unit development and the Quakers Hill shopping centre and railway station irrespective of potential road danger. Further this pedestrian path does not assist in reducing the conflict between existing pedestrians generated by the cabin [sic, Tavern] and the additional vehicle traffic generated by the residential proposal. ... further it is my opinion that efficient [sic, insufficient] pedestrian facilities are available in the ROC to cater for the future pedestrian traffic generated by the proposed to 36 [sic, 236] residential unit development."
Unlike the PMP approved by Commissioner Dixon which provided appropriate pedestrian facilities within the ROC, such as "shared zone" and 10 km/hr signs, a speed bump and a particular surface treatment, presumably to differentiate it from a normal roadway, that before Commissioner Murrell consisted only of the bare ROC in its then condition. Hence the then lack of "pedestrian facilities".
At [19] the Commissioner extracted the following from the statement of Mr McLaren:
"The pedestrian vehicular conflict activity identified requires corrective action - the only reasonable action in the circumstances is to provide a footpath along the western side of the ROC as there is no way of physically preventing pedestrians walking along the ROC without the Western footpath. Any effective physical device directing pedestrians to the eastern part would be a fence, which would prevent pedestrian use of the ROC. Such a fence would by necessity also deny vehicle access to the Nirimba Drive land parcels to the north of the Quakers Hill Parkway."
At [20] the Commissioner referred to Mr Logan's evidence and to a report prepared by Mr Coady, a traffic engineer. Mr Coady's 30 page report (not including appendices), which formed part of the development application for use of the ROC, constituted an updated traffic and parking assessment to that prepared in 2005 for the proposed residential development on No. 9. It was dated 1 June 2006. It dealt only with the issue of vehicular traffic and parking, apart from the following statement with respect to pedestrians:
"While the 7m wide right-of-carriageway is adequate to cater for the traffic generated by the proposed development, it is unsuitable for pedestrian traffic also. This appears to have been recognised by Blacktown Council which has leased a footpath easement and constructed a footpath on railway land on the eastern side of Nirimba Drive along the full length of the Quakers Hill Hotel site. Accordingly, pedestrian access is available from the proposed development site to Nirimba Drive south of the Quakers Hill Hotel site as follows:
● the footpath established by Blacktown Council on railway land provides pedestrian access between sections of Nirimba Drive on either side of the Quakers Hill Hotel
● it is proposed to continue the 7m wide right-of-carriageway across Council-owned land beneath the Quakers Hill Parkway overbridge for vehicular traffic, leaving ample space on either side of the right-of-carriageway to accommodate pedestrian movement
● the section of Nirimba Drive along the frontage of the proposed development site will be constructed with standard 3.5 m wide footpaths on either side."
Mr Coady did deal with the issue of pedestrian and vehicular conflict with respect to patrons and staff of the Tavern concluding that such conflict did not represent a traffic safety hazard of greater significance than that routinely faced by pedestrian activity involving pedestrians crossing a road in a normal urban environment.
The Commissioner then set out at [20] what appears to be the following passages from a report by Mr Logan, he apparently being an employee of Mr Coady, the latter not being available to give evidence in support of his report, Mr Logan substituting:
"Mr McLaren and Mr Hazell considered that a pedestrian footpath is necessary across the Quakers in [sic, Inn] tavern site on the western side of the [ROC] while I consider that desirable I do not consider it to be necessary.
It seems that the concern expressed in respect of pedestrian vehicle conflict can only be justified if the assumption that pedestrians won't use an upgraded footpath on railway land on the eastern side of the [ROC] but will choose instead to walk along the [ROC] in direct conflict with vehicular traffic. I do not believe that in general pedestrians would prefer to endure dangerous conflict with moving vehicles along the 35 m long [ROC] rather than the relatively minor inconvenience of crossing the Nirimba drive at one or two locations to walk along a footpath segregated from vehicular traffic.
If pedestrians do choose to use an upgraded footpath on railway land on the eastern side of the right of way the only pedestrian vehicle conflict involved is crossing Nirimba drive to the north of the Quakers in [sic, Inn] tavern site and to the south of the Quakers in [sic, Inn] tavern site for those pedestrians with an origin/destination on the western side of the drive ... in my opinion if the footpath on the railway land on the eastern side of the [ROC] is satisfactorily upgraded, and if pedestrian facilities are installed to facilitate pedestrians crossing the Nirimba Drive then pedestrians would utilise the designated pedestrian route rather than 'run the gauntlet' with vehicular traffic using the [ROC]."
I interpolate the following. First, there was a conflict in the evidence between Mr Hazell and Mr McLaren on the one hand and Mr Logan/Mr Coady on the other as to the appropriate pedestrian access route to the development on No. 9. Secondly, the views of Messrs Logan and Coady were dependent upon the footpath on the railway land, which was leased to the Council, remaining in place indefinitely or at least until the ROC became a public road in the indefinite future.
At [21] the Commissioner noted that it was agreed by the traffic engineers that as a discretionary matter the Council could approve a pedestrian or zebra crossing across Nirimba Drive noting that it was a condition of the consent for the residential flat building approved by Commissioner Bly in 2006.
The Commissioner then summarised the evidence of the experts in the following paragraphs:
"[22] Mr Hazell and Mr McLaren said that the desire line for a pedestrian is to go the shortest path that is through the Second Respondent's [Sertari's] property on the western side of the right of carriageway.
[23] Mr Logan on the other hand is of the opinion that some pedestrians would cross the road, although it would be difficult to quantify what percentage and this will depend on the mix of people that live in the units. The figure attached from the applicant's [Quakers Hill's] traffic engineer shows the two pedestrian routes. That is, the one adjacent to the east on rail leased land and the one through the second respondent's [Sertari's] property adjoining the western side of the right carriageway. Mr Logan recommends that the lease be renewed to provide a pedestrian path."
Again it would appear that the figure referred to at [23] of the Commissioner's reasons is Figure 2.
It is apparent that the Commissioner was concerned as to whether the pedestrian pathway currently leased by the Council from Railcorp would continue to be leased in the future. She noted at [26] that during the hearing the Court enquired as to the future of this pathway and in August 2007 received the following advice from Railcorp (which I set out as reproduced by the Commissioner notwithstanding that there are obvious transcription errors that I am unable to correct):
"(the proposal) is to construct a new track on the eastern side of the existing track (the other side of the track from this development). However, other work includes relocation of two electrical supply poles from the eastern side to the western side stop this work is expected to occur within the boundary of rail corridor and therefore does not appear to be an issue for this development.
... the main issue appears to be access for RailCorp's engineering and maintenance personnel will stop khaki access is predominantly along the eastern side with the new track will be built. I whether teacher personnel will need to use the western side access via the rim of the drive for access onto the rail corridor with plans, trucks and machinery.
The duplication of the Richmond line will support the capability to run additional train services between vineyard and Blacktown. The increase in services is expected to generate additional patronage and demand for rail services, some of which might require the use of the right of carriageway and the pedestrian walk way to access the station. It is possible that the occupants of the development will also access the station using the right of carriageway and pedestrian walkway."
The Commissioner then concluded as follows:
"[27] On the basis of the evidence to the Court I am satisfied that the pedestrian access, subject to appropriate conditions of consent, would be satisfactory.
[28] A deferred commencement condition is required for a pedestrian management plan to detail the provision of a safe pedestrian path of movement between Quakers Hill Railway Station and the land to the north-west of Lot 1 and it shall also make provision for safe pedestrian access from Railway Avenue to the Quakers Hill Inn."
(c) Some observations as to the Commissioner's considerations
It is to be noted that at [27] the Commissioner has used the definite article before the words "pedestrian access" but that at [28] she has used the indefinite article before the reference to "safe pedestrian path of movement". As there was an apparent conflict between the preferred pedestrian path advocated by Mr Hazell and Mr McLaren on the one hand and that advocated by Mr Logan on the other, and given the general terms of the proposed deferred commencement condition which the Commissioner identified at [28], in my view at [27] she was not referring to any particular pedestrian access as being preferred or otherwise. That this is so becomes apparent from a reading of [30], [32] and [33] of the Commissioner's reasons:
"[30] On this issue that the use of the right of way for both vehicular and pedestrian traffic generated will give rise to an unacceptable level of risk to the safety of those who use the carpark having regard to the patrons and suppliers of the Quakers Hill Inn, I am satisfied on the evidence to the Court that the conflicts can be managed and will not lead to unacceptable levels of risk. This, however will require a management plan to be approved by the Council.
...
[32] The role of the court in the determination of this application is to assess the merits of the use of the right of way in terms of providing access to the approved residential flat buildings. In my assessment I must have regard to the intensification of the use of the right of way. I have the benefit of the Court of Appeal and Supreme Court judgments as to the terms of the easement in favour of the applicant [Quakers Hill] and burdens the second respondent's [Sertari's] land. The terms of the section 88 instrument cannot be artificially restricted by the previous use of the adjoining land by the dominant tenement. Clearly there is 'full and free rights to pass along and repass at all times and for all purposes'. It is not a relevant matter for my consideration as to other uses that are proposed for the remainder of the surplus government lands and the focus of my assessment must be the merits and suitability of the easement to serve the proposed development of two approved residential flat buildings.
[33] The issue of pedestrian and vehicle conflicts and the path that pedestrians would use was also a matter of consideration in the previous appeal for the residential flat buildings. On the basis of the evidence before me I have also concluded that while the use of the RoC will be intensified both during construction and post-construction the issues raised can be managed in a satisfactory way to minimise conflicts." (Emphasis added.)
The following observations may be made as to these three paragraphs. First, the reference to "this issue" at [30] seems to be a reference to Merit Issue No 5 raised by Sertari which I have reproduced at [41] above. This issue concerns whether the use of the ROC for both vehicular and pedestrian traffic generated by the development will give rise to an unacceptable risk to the safety of the Tavern's patrons and suppliers. In any event the Commissioner expresses the view that the conflicts can be managed and will not lead to unacceptable levels of risk.
Secondly, the Commissioner acknowledges at [32] that the focus of her assessment must be the merits and suitability of the ROC "to serve the proposed development of two approved residential flat buildings". She does not exclude therefrom its use by pedestrians seeking to access that development. The same comment applies to [33] of the Commissioner's reasons. Reference to "the use of the ROC" is clearly capable of referring to pedestrians as well as vehicles, the Commissioner noting that "the issues raised" can be managed in a satisfactory way to minimise conflicts. It is apparent that the "conflict" to which she is referring is that between pedestrians and vehicles using the ROC.
Thirdly, at [43] the Commissioner acknowledged her acceptance that the evidence of the experts that the traffic generated by the proposed development could be accommodated by the ROC and at [44] she added that she was not persuaded by the evidence called on behalf of Sertari that any of the issues raised would warrant refusal of the development application. She then notes at [45] that Nirimba Developments and Sertari discussed the conditions which were then agreed between the parties (which presumably included the Council). One of those conditions was condition 14 which was in substantially the same terms as that imposed by Commissioner Bly, though the latter referred to a traffic rather than a pedestrian management plan.
Fourthly, it is noteworthy that Sertari, as well as the Council, agreed to the terms of deferred condition 3 and did not seek to persuade the Commissioner that it should be confined to one or other of the routes referred to in Figure 2 or that it should be limited to a pedestrian path of movement which did not include use of the ROC. In these circumstances it is unsurprising that at [46] the Commissioner stated that she was satisfied that:
"on a merits assessment of the development application for the use of the right of carriageway that benefits No.9 ... there are no outstanding issues that would warrant refusal of the application, subject to appropriate conditions".
The Decision of Commissioner Dixon
I have summarised at [29] and [32] above the relevant contentions of Sertari before Commissioner Dixon. The first concerned the issue as to whether Commissioner Murrell had confined the development consent which she granted for use of the ROC to use by vehicles only so that the PMP the subject of deferred condition 3 was to be construed as restricting the pedestrian path of movement which it contemplated to a path that did not involve the ROC. Sertari contended that Commissioner Dixon did not have jurisdiction to approve a PMP that had not been approved by Commissioner Murrell.
At [17] and [19] Commissioner Dixon rejected the submission, holding that the consent was to the use of the ROC and that there was no constraint on that use either within the consent itself or by reference to any particular plan. Commissioner Murrell approved pedestrian and vehicular use of the ROC subject to the deferred commencement condition for the preparation and submission of the PMP.
At [21] the Commissioner referred to the fact that Mr Logan's preferred option would not be available permanently given the advice from Railcorp as to the expansion of the railway line. In fact by the time Commissioner Dixon dealt with the appeal the pedestrian pathway within the railway land was no longer available. Accordingly, Mr Logan's preferred route became academic. At [21] Commissioner Dixon expressed the view that all that Commissioner Murrell did was to identify a variety of options discussed by the various experts in their evidence but that no single pedestrian path was approved, that being left to determination under deferred condition 3. She further held (at [22]) that Figure 2 attached to Commissioner Murrell's judgment which refers to the railway land was not incorporated into the terms of deferred condition 3 either expressly or by necessary implication citing Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [43] and Ryde Municipal Council v The Royal Ryde Homes (1970) 91 WN (NSW) 440 at 443. Accordingly she held that the PMP did not need to reflect that plan. As to condition 14, she held that a zebra crossing was not mandated by that condition if the PMP did not require it.
As to the question of pedestrian safety the Commissioner held that the preferred PMP did not give rise to an unacceptable safety issue. As I have noted above, that was a finding of fact incapable of challenge in a s 56A appeal.
The Decision of Pain J
The question of law articulated before the primary judge was that the proposed PMP approved by Commissioner Dixon was beyond the jurisdiction of the Court to approve because it was not the same development that was considered and approved by Commissioner Murrell. In other words, the PMP before Commissioner Dixon did not accord with the pedestrian access arrangements approved by Commissioner Murrell and reflected in deferred condition 3. Sertari submitted that the consent granted by Commissioner Murrell was ambiguous and it was therefore necessary to have regard to the development application and its accompanying documents including the statement of Mr Coady which I have reproduced at [47] above. Further, it was submitted that Commissioner Dixon erred in concluding that Figure 2 annexed to the judgment of Commissioner Murrell was not incorporated into the terms of deferred condition 3.
At [21] the primary judge recorded the submission of Sertari that the description of the development provided in the documents submitted with the development application anticipated the use of the ROC for vehicular access only whereas pedestrian access was anticipated to occur only on the railway land except where zebra crossings were to be provided across Nirimba Drive at either end of the ROC.
At [23] her Honour records a submission, repeated before this Court, that Allandale supported Sertari's case in that Figure 2 annexed to Commissioner Murrell's judgment as well as the judgment itself were incorporated into the consent expressly or by necessary implication. I note that this point was put slightly differently during argument in this Court, where it was not contended that the judgment was incorporated into the consent by express reference or necessary implication. Rather, the submission seemed to be that the judgment was part of the consent granted by the LEC and the development application had to be referred to in order to understand what had been approved. This approach seems to have been recognised by Pain J who recorded at [24] that it was contended that the orders and reasons for judgment were part of the same document to which the conditions and a plan were annexed with the consequence that the judgment could not be excised from the orders because the orders were contained in it as well as the annexed plan and conditions.
It was further submitted, as recorded by her Honour at [25], that conditions 12 and 14 relating to pedestrian crossings could only make sense if regard was had to the reasons for judgment and Figure 2. This submission was made notwithstanding that condition 12 does not refer to a pedestrian crossing and condition 14 only refers to one such crossing. The expectation from the conditions, Sertari submitted, was that the pedestrian crossings and any works recommended in the PMP would be necessary to make the selected pedestrian route preferable to the pedestrian desire line referred to in the evidence before Commissioner Murrell. Condition 14 therefore confirmed that the Commissioner was intending to approve a pedestrian route which excluded the ROC.
Finally, at [26] the primary judge recorded the submission that when the development application or the judgment of Commissioner Murrell were considered as part of the development consent granted by her, it was clear that the application proposed vehicular use only of the ROC and not pedestrian access. As the PMP before Commissioner Dixon proposed use of the ROC for pedestrian access, it was inconsistent with that which Commissioner Murrell had approved.
The primary judge rejected Sertari's arguments holding (at [35]) that the orders made by Commissioner Murrell as well as the conditions imposed were "clear in their terms". There was nothing in the terms of order 2 and the attached conditions which gave rise to any ambiguity. Deferred condition 3 was directed solely to the preparation of a PMP with certain specified requirements which did not constrain a pedestrian path of movement utilising the ROC. No specific route was identified. It was clear in its terms and no submission was made to the contrary.
Accordingly, at [36] her Honour considered that as the consent was not ambiguous, the scope for additional documents to be incorporated in it was limited where they were not expressly referred to. Her Honour concluded at [38] that there was no basis for the express incorporation of the development application into the consent simply because it was referred to in order 2 made by Commissioner Murrell. That was consistent with Allandale at [45].
At [40] her Honour noted that the submission that the judgment of Commissioner Murrell formed part of the consent granted in the orders and conditions was "novel". Indeed it is. Her Honour referred to authorities such as Royal Ryde Homes as establishing that the additional documents should not be lightly incorporated into development consents by implication because of the need for certainty in their construction. This was reflected in what was said by Spigelman CJ in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [4]:
"A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions."
Her Honour then rejected at [41] Sertari's submission that the judgment of Commissioner Murrell was part of her order. The reasons in the judgment are not the development consent and although necessary to afford procedural fairness to the parties, they do not form part of the Court's orders at least where that involves the grant of a development consent.
Finally, as her Honour considered that the judgment, including Figure 2, was not incorporated into the development consent granted by Commissioner Murrell it followed that the latter did not approve any particular pedestrian path of movement as a consequence whereof her Honour rejected Sertari's submissions and dismissed its appeal.
The Parties' Submissions on the Appeal
(a) Sertari's submissions
Essentially, with one exception, Sertari repeated the submissions which both Commissioner Dixon and the primary judge had rejected. Thus, although not referred to before Pain J, it was submitted that the effect of the decision of this Court in Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 established the proposition that in construing the order of the Court it is not only permissible but necessary to have regard to the judge's reasons for the making of the order in question because the reasons form part of the order.
Athens was a case where a judge of the LEC had granted an injunction restraining the appellants from using certain premises for the purpose of backpackers' accommodation. Randwick Council alleged that that order had been breached and instituted proceedings for contempt. At [27] Hodgson JA (with whom I agreed) observed that the construction of an order in respect of which a finding of contempt is sought may involve two inter-related questions. The first, what does the order require on its true construction? And second, is it sufficiently clear to the person affected by the order to support enforcement of that order against that person?
At [28] his Honour acknowledged that the first question may arise quite separately from the second in proceedings other than proceedings alleging contempt. There was no doubt, his Honour noted, that in addressing the first question, one can consider context in the case of a consent order, in much the same way as one can consider context in construing a contract: Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 at [38]-[45] (Campbell J).
Santow JA, with whose observations I also agreed, summarised the relevant propositions at [140] in the following terms:
"(a) Orders must conform to the judgment which gave rise to them, within the latitude conferred by that judgment. That originating judgment is not just an aid to construction. Rather it is the primary reference point. In that respect construing orders is not like resorting to extrinsic circumstances or external context to resolve ambiguity in a clause in a contract.
(b) Where orders are ambiguous, that ambiguity must be resolved first by reference to the originating judgment, unless the language of the orders proves intractable.
(c) Orders may also need explication by reference to the proceedings in which the judgment is given, particularly the pleadings. This recognises that a range of orders and their possible meanings may conform to the judgment.
(d) While orders should ideally be self-explanatory, language is inherently ambiguous so permitting that resort to resolve ambiguity.
(e) Orders should so far as practicable be self-contained. But incorporation by reference is permitted where that to which reference is made is readily accessible and likely to be familiar to the parties, like an LEP. The cardinal principle is that the person to whom an order is directed should readily understand what is required of him by that order. Incorporation by reference may actually assist that understanding, if concision is thereby achieved without loss of clarity."
Although Athens is authority for the proposition that in construing a court's order, at least where it is ambiguous, resort may be had to the judgment which gave rise to it, it is not authority for the proposition that in a case such as the present the judgment of Commissioner Murrell formed part of the orders that she made including the conditions of consent. Rather, resort may be had to the judgment for the purpose of construing those orders and/or conditions if that is appropriate in the circumstances.
Sertari submitted that Athens was "jurisprudentially" applicable to the present case. The Court was entitled to look at the reasons of Commissioner Murrell to determine what it was that she approved. If that course was permissible, then it was submitted first, that the judgment of Commissioner Murrell only approved the use of the ROC for vehicular access and not for pedestrian access; secondly, that Figure 2 formed part of her reasons and, therefore, part of the orders she made from which it could be inferred that to the extent that the only pedestrian access she approved were those identified on Figure 2, any pedestrian use of the ROC was excluded; thirdly, that one could also have regard to the development application itself including Mr Coady's report which made it clear that the application to use the ROC did not include its use for pedestrian access; fourthly, that in any event the only logical conclusion from a fair reading of Commissioner Murrell's judgment was that she was only approving Mr Logan's access route; and fifthly, the fact that that route was no longer available was irrelevant as it was always open to Quakers Hill to make a new development application or a modification application under s 96 of the EP&A Act to include pedestrian access along the ROC.
A submission was also made that condition 14 of the General Conditions of Consent which provided for a zebra crossing across Nirimba Drive was confirmatory of the fact that Commissioner Murrell was approving the Logan/Coady pedestrian route because a zebra crossing would not be necessary under Quakers Hill's proposal. However, as [21] of her reasons makes clear, first whether the crossing was required was "a discretionary matter the Council could approve" and, secondly, the condition that such a crossing be provided had already been imposed as Condition 178C by Commissioner Bly when he approved the development on No. 9. In these circumstances condition 14 is not confirmatory of the contention that Commissioner Murrell approved Mr Logan's desired path of movement.
(b) Quakers Hill's submissions
The respondent's submissions may be summarised thus:
·Athens is irrelevant absent any ambiguity in deferred condition 3; it was conceded that there was no ambiguity;
·Absent ambiguity it was neither permissible nor necessary to have regard to Commissioner Murrell's reasons;
·Even if ambiguity is not required, Commissioner Murrell's reasons support the respondent's construction of deferred condition 3 as neither proscribing use of the ROC for safe pedestrian access nor requiring the PMP to apply only to one or other of the pedestrian routes referred to in Figure 2;
·Commissioner Murrell did not approve Mr Logan's proposed route any more than she approved that of Messrs Hazell and McLaren: each were possible routes but the Commissioner did not choose between them but found that a safe pedestrian path of movement could be provided and that any vehicle/pedestrian conflict could be "managed in a satisfactory way to minimise conflicts";
·In particular, the use in deferred condition 3 of the indefinite article before the words "safe pedestrian path of movement" made it clear that the Commissioner was not seeking at that point of time to delimit the possibilities in terms of providing a safe pedestrian path of movement: the provision of such a path was to be dealt with in the PMP and whether it was safe or not would be determined by the Director, Transport and Technical Services of the Council whose approval of the PMP was required subject, of course, to an appeal to the Court pursuant to s 97(3);
·Condition 14 did not mandate the provision of a zebra crossing on Nirimba Drive unless it was required in accordance with the approved PMP. If the PMP did not require it, then there was no necessity for its provision.
The Appellant's Submissions are not Sustainable
It appears to be an open question whether, before resort can be had to the reasons for judgment of a court for the purpose of construing its orders, the orders must contain an ambiguity: cf Bar-Mordecai v Attorney-General(NSW) [2012] NSWCA 207 at [36] (Basten JA, Beazley P and Sackville AJA relevantly agreeing). The latest authority on the subject is that of this Court in Ross v Lane Cove Council [2014] NSWCA 50. That case concerned an alleged breach of injunction which sounded in contempt. Leeming JA, with the agreement of Meagher JA and myself, noted (at [30]) and citing Athens at [29], that it was open to have regard to extrinsic evidence, at least if the language of the orders is ambiguous or susceptible to more than one meaning. The primary source of such material in a case such as the present where the orders reflect the findings and reasoning at trial, are the reasons for judgment. His Honour continued at [31]:
"It is not necessary to determine or for that matter say anything about (a) whether 'ambiguity' is required, (b) what 'ambiguity' is in this context; and (c) whether the orders of 14 June 2013 are ambiguous in the requisite sense, such that resort to extrinsic material may be had".
Leeming JA then observed that the last mentioned question was not free from doubt as noted by J Tarrant, "Construing Undertakings and Court Orders" (2008) 82 ALJ 82 and in P Herzfeld, T Prince and S Tully, Interpretation and Use of Legal Sources (2013, Thomson Reuters) at 689-690. His Honour considered that it was not necessary to pursue the matter in the case before him as all extrinsic considerations pointed in the same direction as the terms of the orders on their face.
In my view the same comment applies to the present case. All extrinsic considerations and, in particular, the judgment of Commissioner Murrell, point in the direction that, viewed objectively, the Commissioner did not intend to proscribe use of the ROC for pedestrian access to the development on No. 9; nor did she intend that the only safe pedestrian paths of movement were the routes identified in Figure 2; nor did she only approve of Mr Logan's desired route. The Commissioner clearly left the matter open to be determined upon a detailed PMP being prepared and approved.
Sertari also sought support for the proposition that Commissioner Murrell's reasons formed part of her orders by reference to cl 266(1)(d) of the Environmental Planning and Assessment Regulation 2000 which mandates that a council keep, amongst other things, a copy of the decision of the LEC in the case of a development consent granted by the Court on appeal from a determination of the council. This regulation was relied upon to support the contention that Commissioner Murrell's judgment formed part of her orders and to counter the submission that a development consent operates, in effect, in rem and therefore should be construed in isolation subject only to those documents which were expressly or by necessary implication incorporated therein: Stebbins v Lismore City Council (1988) 64 LGRA 132 at 135; Baulkam Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [113]; cf Kogarah Municipal Council v Golden Paradise Corporation [2005] NSWCA 230; (2005) 12 BPR 23,651 at [40]-[41] where reference was made to the decision of the High Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472.
At [51]-[53] of Hillpalm the majority (McHugh ACJ, Hayne and Heydon JJ) considered that the council's consent to a subdivision did not create a right in rem that would be a right or interest in land not shown on its Certificate of Title and that may be relied on by any later transferee of any lot in the subdivision. However, a consent operates, in effect, in rem in that it may be availed of by subsequent owners and occupiers of the land. Accordingly, as Hope JA stated in Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433, after referring to the decisions in Royal Ryde Homes and Miller-Mead v Minister of Housing and Local Government (1963) 2 QB 196:
"It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it."
This passage was referred to by Basten JA in Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; (2006) 148 LGERA 439 at [36].
Sertari submitted that such principles only applied where a council granted a consent albeit on the recommendation of its planning staff but did not apply when the Court granted the consent pursuant to a reasoned judgment. This was said to be because when a judge of the LEC grants a consent and delivers judgment, it is plain that the judgment constitutes the reasons for the decision; whereas the basis for a council's decision is not as readily ascertained. I am not convinced that this is a valid distinction in the context of a development consent and in circumstances where s 39(5) of the Court Act provides that the decision of the LEC upon an appeal shall, for the purposes of that Act or any other Act or instrument, be deemed to be the final decision of, relevantly, the council whose decision is the subject of the appeal and should be given effect to accordingly.
However, in my view it is unnecessary to resolve these thorny issues. This is because, for the reasons I have stated, even if recourse is to be had to Commissioner Murrell's reasons, they do not support the proposition that she approved a particular pedestrian path of movement which did not involve pedestrian use of the ROC.
I would also reject the submission that, as an alternative, the decision of this Court in Allandale permits the incorporation into the consent granted by Commissioner Murrell of the development application and its accompanying traffic report of Mr Coady. Sertari's submission was that the order made by Commissioner Murrell that the development application submitted to Council "for use of the above right of carriageway" be determined by the granting of consent was ambiguous as it was not known what the purpose of use of the ROC was intended to encompass. In my view when one reads orders 1 and 2 of the Court together, what was being approved was an application to use the ROC for the benefit of No. 9. That use extended to both vehicle and pedestrian use and I see no reason to limit it by reference to any other document. In my view, consistent with what was said in Allandale, particularly by Meagher JA at [43] and [45] and by Ward JA at [154]-[163], it cannot in the present case be said that the form of application, let alone the accompanying documents (whether they formed a statement of environmental effects or not) were incorporated into the consent the subject of Commissioner Murrell's orders expressly or by necessary implication.
In any event, the incorporation of the development application and Mr Coady's report does not assist Sertari. Its submission based on Mr Coady's report was that the development for which consent was sought was only for the use of the ROC for vehicular access to and from the development on No. 9. It did not seek consent to its use for that purpose by pedestrians. The latter was not part of the application as Mr Coady made clear in the passage from his report of 1 June 2006 extracted at [47] above.
If the foregoing be correct and the application only sought consent to the use of the ROC for vehicular traffic, then it follows that Commissioner Murrell's order only extended to granting consent to the vehicular use of the ROC. That left the issue of pedestrian access to the development proposed on No. 9 at large. The Commissioner appreciated that that was a separate issue which needed to be resolved before the development on No. 9 commenced which is why she imposed deferred condition 3. By its terms it relevantly required the identification in a PMP of a safe pedestrian path of movement between Quakers Hill railway station and No. 9. How that was achieved was a matter for the preparer of the plan subject to its approval by the nominated Council officer or the Court on appeal.
It follows that Sertari's submission that the development for which consent was being sought in the application was confined to the use of the ROC by vehicles sowed the seed of destruction of its own case. It was also inconsistent with its submission that Commissioner Murrell only approved of the pedestrian path of movement in Figure 2 and its apparently alternative submission that she only approved Mr Logan's preferred pedestrian path.
As the Commissioner could only approve the development for which consent was sought, it also followed that she could not have proscribed the use of the ROC as a pedestrian path of movement for the purpose of the PMP.
I would finally add that Sertari conceded during the course of oral argument that its appeal must fail unless it was established that Commissioner Murrell approved Mr Logan's desired pedestrian path as the only such path. As this was not established either on the face of the Commissioner's reasons or because no approval of that, or any other path, was sought in the development application, it follows that the appeal must on Sertari's own concession, fail.
Conclusion
For the foregoing reasons in my view the submissions of Sertari should be rejected. I would therefore propose the following orders:
(1)Grant leave to appeal.
(2)The appeal be dismissed.
(3)The applicant to pay the first respondent's costs of the summons for leave to appeal and the appeal.
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