SJ Connelly Pty Ltd v Ballina Shire Council - [2010] NSWLEC 151

No judgment structure available for this case.

Reported Decision: 175 LGERA 408

Land and Environment Court

of New South Wales

CITATION: S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151

PARTIES:
APPLICANT
S J Connelly Pty Ltd
RESPONDENT
Ballina Shire Council

FILE NUMBER(S): 40355 of 2009

CORAM: Pepper J

KEY ISSUES: DEVELOPMENT CONSENT :- whether the council was constrained by the terms of a deferred commencement consent in the passing of subsequent resolutions or in the future determination of any development application for community title subdivision in respect of the proposed development - in the alternative, whether the development was a staged development - application dismissed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 80, 80A
Ballina Local Environment Plan 1987

CASES CITED: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1977) 139 CLR 54
Australand Industrial No 18 Pty Ltd v Auburn Council [2004] NSWLEC 105
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160
Camberwell City Council v Camberwell Shopping Centre Pty Ltd (1992) 76 LGRA 26; [1994] 1 VR 163
Cameron v Nambucca Shire Council (1997) 95 LGERA 268
Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294
CEAL Ltd v Minister for Planning (2007) 159 LGERA 232; [2007] NSWLEC 302
Grange v Sullivan (1966) 116 CLR 418
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
Mangano v Holroyd (1972) 26 LGERA 357
Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38
Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687
Patrick Autocare Pty Ltd v The Minister for Infrastructure, Planning and Natural Resources (No 2) [2005] NSWLEC 412
R v Hammersmith and Fulham London Borough Council; Ex parte Beddowes [1987] QB 1050
Rocca v Ryde Municipal Council (1961) 7 LGRA 1; [1961] NSWR 600
Rocca v Ryde Municipal Council [1962] NSWR 600
Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321; [1970] 1 NSWR 277
Seyffer v Shoalhaven City Council (2006) 149 LGERA 19; [2006] NSWLEC 564
Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [2010] NSWLEC 10
Weal v Bathurst City Council (2000) 111 LGERA 181. [2000] NSWCA 88
Westfield Management Ltd v Perpetual Trustee Company Limited [2006] NSWCA 245

DATES OF HEARING: 9 and 10 December 2009

DATE OF JUDGMENT:
23 August 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Galasso SC
SOLICITORS
McCartney Young Solicitors
RESPONDENT
Mr P Clay
SOLICITORS
Clarissa Huegill & Associates

JUDGMENT:

4

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

23 August 2010

40355 of 2009 S J Connelly Pty Ltd v Ballina Shire Council

JUDGMENT

Introduction

1 HER HONOUR: This case concerns the construction of a deferred commencement consent (DA 2004/605, or “the DA”) granted by Ballina Shire Council (“the council”) to the applicant, S J Connelly Pty Ltd (“SJ”), on 24 June 2004.

2 Specifically, it concerns the question of whether the conditions imposed by a deferred commencement consent can have the effect of binding a council’s determination of a future development application in respect of lots in a related aspect of the same proposal.

3 For the reasons below I have held that the amended summons must be dismissed because properly construed the consent did not impose conditions binding the council as to the terms of any future development application concerning the community title subdivision of the lots in question.

Factual Background to the DA

4 The background facts relevant to the disposition of these proceedings are in the main uncontroversial, but are required to be set out in some detail in order to properly understand the issues raised for determination in the proceedings by SJ.

The Development Application

5 On 15 December 2003, SJ a development application was lodged in respect of land described as Lots 12, 13 and 15 in DP 258095 (“the land”). The land was located on Greenfield Road, Lennox Head. A Statutory Planning Assessment was prepared by SJ and lodged with the application. The proposed development was described in section 3.1 of the documents lodged in support of the development application (under the heading “Summary Description of Proposal”) as:

Development consent is sought to subdivide Lots 12, 13 and 15 in DP258095 creating 16 new lots (including one duplex lot [18] and two lots for future Community Title development [lots 4 and 8]) and 3 lots for existing dwellings.

6 The land the subject of the development application was zoned 2(a) – Residential (Living Area) under the provisions of the Ballina Local Environment Plan 1987 (“the BLEP”). Subdivision was permissible in the 2(a) zone with development consent.

7 Clause 14 of the BLEP permitted dual occupancy development within the 2(a) zone. The BLEP did not prohibit duplex or community title upon the land the subject of the development application. These types of development were, however, inconsistent with some aspects of the Development Control Plan No 1 – Urban Land (“ the DCP”), which was applicable to the proposed development.

8 The land was located wholly within the low density, large lots (L1) locality of Lennox Head as identified within the DCP. In this regard, the objectives of the DCP were to:

(a) make provision for low density living options for single dwellings being the predominant form of housing or larger than normal lots;

(b) prevent the fragmentation of large lot estates which were important components in the range of housing types available in the Shire; and

9 The description of the development application and the documents prepared by SJ formed the basis for the description and assessment of the application and the supporting consulting reports. These reports stated as follows:

(a) in the report addressing engineering issues associated with the proposed development at Greenwood Grove (section 2.1), the proposal was described as follows: “as can be seen from this drawing, the proposed layout creates 11 vacant lots of 1200m ² to 1402m ² , two future Community Title lots (lots 4 and 8), one lot for two detached dwellings (lot 18) and three lots (lots 1, 15 and 19) which subdivide off the existing dwellings;

(b) the description of the development was used in the assessment of “internal roads” (section 4.2);

(c) it was recognised that the further development would be the subject of a further development application (section 6.1) assessment of run off quantity; and

10 Submitted with the development application was a Landscape Treatment Plan which proposed the retention of the existing vegetation.

11 A Flora and Fauna Assessment report was also lodged with the development application which, amongst other things, identified and classified significant vegetation on the site. As part of the “Recommendations” of the report an area of significant vegetation to the east of the site, namely, area 4 in the flora survey areas was to be retained. In addition the assessment contained the following recommendation:

…to be developed under a Community Title arrangement which will include provisions to permanently protect and restore the [native vegetation] remnant by enshrining the following points on the Community Title Covenant…

12 The Flora and Fauna Assessment also recommended that areas 7 and 2 of the flora survey areas be developed under a Community Title arrangement.

13 The Bush Fire Threat Assessment lodged with the DA referred to the development as:

The development will result in a 19-Lot subdivision incorporating two areas of future community title and a lot with dual occupancy.

14 The council advertised and gave notice of the DA.

15 By way of letter dated 6 February 2004, the council wrote to SJ and noted the issues that required further consideration. In particular, the council noted that, “particular concern is raised with the nomination of Lots 4 and 8 as future Community Title Lots and Lot 18 as a duplex lot”.

16 On 30 March 2004, SJ wrote to the council and provided further information with respect to the DA and the issues for further consideration raised by the council. The letter specifically addressed questions concerning the future development of lots 4, 8 and 18. It stated that:

Please note that this application does not purport to seek specific development “entitlements” for each of these lots. However, the notional further development potential of these lots has been flagged by this application in order to allow the proper consideration of a completed overall development, particularly in terms of traffic generation and utility service needs. To that end, the notional potential of these lots is as follows:

Lot 4 – Dual occupancy

Lot 8 – 10 Dwelling Houses with Community Title Format

Lot 18 – 7 Dwelling Houses with a Community Title Format

17 An Engineering Assessment was submitted with the letter. That Assessment indicated “Area 4 Rainforest Remnant” and “10m buffer” and the location of the sewer pump station and internal access arrangements for that pump station, together with “internal driveways”. A revised Flora and Fauna Assessment also enclosed with the letter indicated:

(a) the vegetation to be retained at Area 4, together with a “vegetation buffer”;

(b) the vegetation community boundaries and in relation to Area 4, a “10 m buffer” by reference to the boundary of the vegetation shown in Figure 2;

(c) section 15 of the revised Assessment repeated the provisions of s 5.2 of the original Assessment lodged with the development application with respect to the 10 m buffer to the vegetation at Area 4; and

the remnant as the central feature of the development

18 The council retained Mr Peter Parker as a flora and fauna consultant with respect to the development application. Mr Parker provided a report dated 20 April 2004, which gave advice to the council with respect to the protection of the vegetation on the site. Mr Parker’s recommendations were contained in the text of his report. As a response to Mr Parker’s report, a specific flora and fauna response was prepared by SJ.

19 On 28 April 2004, SJ wrote to the council and submitted further documents and information in respect of the development application. The letter accompanying the documents made specific reference to the recommendations of Mr Parker and adopted, in particular, his recommendation that the main public road be located away from vegetation areas 3 and 4. The letter further stated that:

Your letter of 6 February 2004 also sought further information about compliance of Council’s DCP No 1 classification “L1”, particularly in relation to the then numbered Lots 4, 8 and 18. Please note that this application does not purport to seek specific development “entitlements” for each of these lots. However, the notional further development potential of those lots has been flagged by this application in order to allow the proper construction of a completed overall development, particularly in terms of traffic generation and utility service needs.

20 The letter went on to confirm that lot 19 was proposed for dual occupancy, lot 8 was proposed for 10 dwelling houses in community title format and lot 4 was proposed for 7 dwelling houses with a community title format.

21 Reports submitted with the development application included a report by Aspect North dated February 2004 titled “Response to Issues Identified by Council Engineering Assessment”. The report referred to access to stormwater and infrastructure services through a community title scheme. The “Development Proposal” was described as “the development proposal states that the design had been catered for a potential of 34 dwellings which relates to one dwelling PWE 1200 m². This was done in an attempt to ensure that there was sufficient capacity in the provision of services”.

22 The Aspect North report also repeated the contents of earlier reports with respect to the preservation of remnant vegetation and stated that, “it must be noted that a Community Title agreement which is focused on the protection and conservation of very high conservation value vegetation and threatened species would attract residents which are philosophically predisposed to the protection of the natural environment”.

23 The council requested further information in relation to the amended development application. This was provided under cover of a letter from SJ dated 14 May 2004. The information included a document entitled “Report on Engineering Issues for Proposed Subdivision of Greenwood Grove” authored by Aspect North and dated 14 May 2004. The description of the proposal contained in this report stated:

²

24 The report also stated that the maximum number of additional dwellings generated by Greenwood Grove was 32, that the internal road layout of the development allowed for access to various community title lots and showed the appropriate building envelopes for the future development of the entire site with an amended road layout. Sewerage load calculations, based on the development potential of the site, were included.

25 On 24 June 2004, the council considered the development application. In the “Introduction” the proposal was described as:

Introduction

It is proposed to create a Nineteen (19) Lot subdivision within three existing allotments. A large proportion of the site is currently vacant however it does contain existing dwellings and stands of significant native vegetation. The site is located between well-established residential subdivisions characterised by larger residential allotments to the southeast and west. The site is bordered by vacant rural land to the north.

The subdivision will require the construction of two ‘no through’ roads intersecting at two points along Greenfield Drive. The eastern most road will service five (5) Lots while the western road will service thirteen (13) Lots. Proposed Lot 18 is an existing dwelling and will continue to gain access from Greenfield Road. Seven (7) Lots will range in area between 1100m ² and 1119m ² . Eight (8) Lots will range in size between 1200m ² and 1504m ² . Two (2) Lots are proposed as 2250m ² and 2753m ² in area. Two remaining larger Lots will have site areas of 12,000m ² and 10,093m ² ha.

Three of the proposed Lots contain single residential dwellings. The proposal identifies the use of vacant Lots 4 and 8 as having potential further subdivision in the form of Community Title and Lot 19 as a duplex allotment. The remaining Lots are intended as single dwelling houses consistent with the DCP 1 ‘L1’ character of the subject estate.

It should be noted that all Lots have the potential for dual occupancy, consistent with the DCP, other than the Lots identified for Community Title and Duplex development.
The parent allotments have a northerly aspect and slope gently down from Greenfield Road. The site contains various vegetation species ranging in conservation value. Of particular value is a remnant rainforest stand on the northern boundary of the site, within the proposed Lot 4. The large remnant area covers an approximate area of 3200m ² . There is also a smaller area of remnant vegetation separated by an unformed road to the south, being 250m ² in area.

26 Under a section entitled “Community Title” the report stated:

…The justification provided by the applicant for this type of development upon these two allotments relates to the irregular shape of Lot 8 and the significant vegetation located within Lot 4. If Council refused the use of these Lots for Community Title subdivision, further subdivision in a conventional manner would be possible due to the larger lots sizes. However, the applicant does claim that Community Title on lots 4 and 8 will result in development on each Lot more suitable to the site-specific constraints than a conventional style subdivision.

…

The proposal has sited six (6) building envelopes within Lot 4, three on either side of the remnant rainforest. If Council were to consider that the site was acceptable for the purpose of Community Title, it is considered that a deferred commencement for both Community Title allotments would be appropriate. The purpose of this deferral would require the submission of additional information for these developments to address issues not satisfied at this stage. These issues relate to the ability of the two Community Title Lots to accommodate the number of dwellings proposed, having regard to existing identified site constraints and densities. This additional information could be lodged in the format of a Management Plan for each Lot, addressing the siting and number of houses each Lot could accommodate, without adversely affecting significant vegetation on site, including buffer zones, and the amenity of adjoining residents. The Management Plan would also include various provisions relating to the provision and management of significant vegetation, infrastructure and stewardship of the site.

…

…

It would be considered appropriate to indicate that the use of these two Lots for a Community Title Subdivision development is acceptable, subject to further details regarding the ability of each Lot to accommodate dwellings in association with any site constraints, particularly significant vegetation and the aims of DCP No 1.

This could be accommodated by an appropriately worded condition within the deferred commencement consent for the site.

27 The conclusion to the report went on to state that, “Lots 8 and 4 being Community Title are also inconsistent with the intent of the L1 classification. This style of subdivision doe [sic] have some merit, particularly Lot 4, however, the subsequent implications of multiple individual dwellings being constructed on Lot 8 may not be consistent with the objectives of the zone. Objections by surrounding residents regarding the Community Title allotments being inconsistent with the locality are partially justified. It is considered that any development consent should be deferred for this component requiring further detail and justification for multiple dwellings within a single Lot.”

28 The following recommendation were therefore made:

That DA 2004/605 to undertake the construction of a nineteen (19) Lot Subdivision including one (1) duplex Lot and two (2) Community Title Lots at Lots 12, 13 & 15 DP 258095, No. 50, 46 and 36 Greenfield Road, Ballina be granted deferred commencement development consent subject to the following conditions;

1. Deferred Commencement

29 The recommended deferred commencement conditions were in the same terms as those ultimately imposed by the consent granted.

30 The motion that was put before the council was in the following terms:

That DA 2004/605 to undertake the construction of a nineteen (19) lot Subdivision including one (1) duplex lot and two (2) Community Title Lots at Lots 12, 13 and 15 DP 258095, No 50, 46 and 36 Greenfield Road, Lennox Head be granted deferred commencement development consent subject to the conditions outlined in the business paper report and above stated, with the deletion of condition 6.3 and insertion of new condition 1.2 as follows:

1.2 That lots 19, 8 and 4 are to achieve a density of one dwelling for 1,200 square metres.

31 The motion was carried and the council issued to SJ a “Notice to Applicant of Determination of a Development Application” being a deferred commencement consent (“the consent”) with the deferred commencement conditions set out in section 1 of the consent.

The Consent

32 The relevant terms of the consent were as follows:

Subject land: Lots 12, 13 & 15 DP 258095, Nos. 36, 46 and 50 Greenfield Road, Lennox Head

Development Proposal: To undertake a 19 Lot Torrens Title Residential Subdivision

…
Determination: The development application has been determined by Ballina Shire Council on 24 June 2004 by way of the grant of consent subject to the conditions specified below :

1. Deferred Commencement

1.1 The submission of additional information to the satisfaction of Council regarding the proposed use of Lots 4 and 8 for Community Title Subdivision. This information should include information regarding the following issues, in the format of a Management Plan for each site:

An assessment of the ability of each Lot to satisfactorily cater for the proposed number of dwellings having regard to site constraints, the amenity of surrounding residents and the housing density of the locality. This assessment should include the impact of the dwellings on significant vegetation and the impact of the style of the development on the locality;
A 10 metre buffer zone is to be established adjacent to all areas of remnant and/or rehabilitated rainforest on Lots 4, 8 & 19. No permanent building structures will be permitted within the 10 metre buffer zone;
Precise identification of all vegetation to be removed to facilitate the construction of the subdivision;
Precise details on all rehabilitation and revegetation works proposed throughout the site and the timing of such activities;
Detailed performance targets for the proposed rehabilitation and revegetation program;
The proposed rehabilitation and revegetation program is to reflect the recommendations of the report by Mr Peter Parker, dated 20 April, 2004 in regards to the extent of the rehabilitation area;
Details on methods to be utilised to ensure the long term protection of all threatened plant species located on Lots 3, 4, 8 and 19; and
A detailed Community Title Covenant as detailed on pages 45 & 46 of the Flora and Fauna Assessment prepared by Aspect North dated November 2003.

1.2 Stormwater attenuation shall be demonstrated to the approval of Council’s Engineer, that all open area stormwater attenuation basins shall not exceed a maximum water depth of 1.2m for stormwater events up to, and including a 100 year average return interval. Stormwater attenuation shall be achieved such that the downstream property owner, drainage rights and wetlands are not unduly impacted by the stormwater discharge from the site.

1.3 Lots 19, 8 and 4 are to achieve a density of one dwelling per 1,200 square metres.
…

This deferred commencement consent will lapse if the above requirements are not complied with prior to 28 February 2005 to the satisfaction of Council.
2. General Conditions

2.1 Development being carried out generally in accordance with the plans and associated documentation lodged by the applicant, including plans prepared by Aspect North, Drawing No. LM020333/P/LP, dated June 2003 except as modified by any condition of this consent.

2.2 Any future development application lodged for this subdivision under section 79BA of the Environmental Planning & Assessment Act will be subject to the requirements as set out in the Planning for Bush Fire Protection 2001.

33 The drawing referred to in condition 2.1 was a plan of subdivision showing nineteen allotments.

34 While the consent did not show any proposed lots within lots 4, 8 or 19, the lots proposed for community title subdivision, the terms of consent did not proscribe against community title development of the related lots.

Satisfaction of the Deferred Commencement Conditions

35 By email dated 29 July 2004 SJ provided to the council a plan entitled “Collation of Deferred Commencement and Consent Conditions”, being a pictorial representation of that required by the consent.

36 The council replied to the plan by letter dated 3 August 2004. That letter was the subject of further correspondence from SJ on 11 August 2004 and a file note of the council on 6 September 2004. The correspondence disclosed a difference of opinion as to the theoretical line of the “10 m buffer”.

37 On 6 December 2004, SJ wrote to the council and sought to satisfy it that all of the deferred commencement conditions had been satisfied.

38 On 18 January 2005, the council replied to that letter and, in particular, in relation to deferred commencement condition 1.1 it stated:

Council staff are not satisfied that proposed lots 4 and 8 can satisfactorily cater for the siting, configuration and number of dwellings as shown in the documentation having regard for site constraints…and amenity of nearby residents; particularly those immediately adjacent in the Grove Estate and on lot 11… In addition, whilst the site density may numerically comply when calculating the total land area for each lot, the concentration/density of dwellings in the “developable” areas of proposed Lots 4 and 8 are significantly higher than what exists in the locality, may not be in character with the surrounding residential area and therefore not what could be reasonably be expected in this L1 designated residential area. This view was clearly expressed in the Group Manager’s report to Council’s Ordinary Meeting held in June 2004 under the heading of Community Title.

39 On 9 February 2005, SJ responded to the council’s letter and included a “Greenwood Grove Management Plan” dated 9 February 2005 (“the GGMP”). The response discussed the council’s concerns with respect to the issues of rehabilitation and revegetation and the buffer to be applied to the remnant rainforest areas. The GGMP also included a site plan (“the site plan”).

40 The issue of whether the deferred commencement conditions had been satisfied was the subject of a report to council on 24 February 2005. The report concluded:

Subject to adjusting the common boundary between Lots 4 and 19 to comply with the subdivision layout plan approved by Council at its Ordinary Meeting of June 2004 and the minor amendments to the relevant documentation as outlined in response to points 4, 5 and 6 of condition 1.1, it is considered that the applicant has adequately demonstrated compliance with the deferred commencement conditions of consent.

It is important for Council to note, particularly in relation to deferred commencement condition 1.1 and the issues raised in submissions that the consent granted by Council in June 2004 relates to the subdivision of land and that any future development of Lots 4, 8 and 19 is subject to a new development application. It has been the possible future development of Lots 4, 8 and 19 that has been the main focus of the objections.

41 The site plan formed part of the report considered by council, together with extracts from the GGMP.

42 At the meeting on 24 February 2005 the council resolved (emphasis added):

however Council advises it does not accept that consented to Lots 4, 8, 19 are suitable for development with multiple dwellings thereon

2 That Council confirms the provisions of DCP1 for this subject land.

43 It is this resolution that is at issue in the proceedings. Although not, in my view, satisfactorily articulated in either the amended summons or amended points of claim, the gravamen of SJ’s complaint is that this resolution is inconsistent with the term of the consent, and therefore, beyond power.

44 By letter dated 4 March 2005, the council advised SJ of the resolution on 24 February 2005 and listed seven points that needed to be addressed in order to satisfy its concerns about the requirements of the deferred commencement conditions. The council’s letter also contained the following:

It is noted that in accepting that the deferred commencement conditions have been adequately met to enable the subdivision to proceed, the Council was not satisfied that the documentation sufficiently addressed those aspects of the deferred commencement conditions requiring demonstration that Lots 4, 8 and 19 were suitable to accommodate multiple dwellings. Accordingly, any future plan to development multiple dwellings on these lots will need to be facilitated by an amendment to DCP No. 1 and the subsequent lodgement of a development application.

45 On 14 April 2005, SJ submitted further documents to address the requirements of the deferred commencement conditions. These included:

(a) GGMP, Version 2, March 2005; and

46 By letter dated 9 June 2005, council provided further advice to SJ in relation to the requirements of the 10m buffer.

47 By letter dated 17 August 2005 SJ provided an amended version to the GGMP (Version 2A) and an addendum to the ERMP.

48 By letter dated 5 September 2005, the council confirmed receipt of the correspondence dated 4 March, 9 June and 17 August 2005, Version 2A of the GGMP and the addendum to the ERMP. The letter suggested that there was no extant consent for the community title subdivisions of lots 4, 8 and 19, and moreover, that there was no acceptance that multiple dwellings were appropriate for those lots.

49 Significantly, the letter from the council to SJ stated as follows:

DA2004/605 Deferred Commencement Conditions of Consent Lots 12, 13 & 15 DP 258095 Greenfield Road, Lennox Head

I refer to Council’s resolution in respect to the abovementioned matter at its Ordinary Meeting held on 24 February, 2005, Council’s subsequent letters to you dated 4 March, 2005 and 9 June 2005 and your most recent transmittal letter dated 17 August 2005 and an amended Greenwood Grove Management Plan Version 2A – August 2005 and addendum prepared August 2005 to the Ecological Restoration Management Plan – Stage 1 dated March, 2005.

1. That the applicant be advised subject to the amendments as outlined in the report, the deferred commencement conditions of DA2004/605 have been adequately addressed, however Council advises it does not accept that consented to Lots 4, 8 and 19 are suitable for development with multiple dwellings thereon.

2. That Council confirms the provisions of DCP1 for this subject land.

Please be advised that the subject amendments as referenced in the above resolution have now been competently addressed and that in the context of Council’s resolution the deferred commencement conditions of DA 2004/605 have been adequately addressed. Consequently, development consent 2004/605 to undertake a 19 Lot Torrens Title residential subdivision now becomes operational.

Relief Sought and Issues for Determination

50 Several observation should be made about the relief sought by SJ in its amended summons. First, prayer 1 sought a declaration that SJ was entitled to seek development consent for the proposed development described therein. To the extent that, as the council readily accepted, there was never any prohibition in the present case on any entitlement of SJ to seek development consent, the relief sought lacked utility. Second, one possible corollary of the declaration sought in prayer 2 was that it required the Court to impermissibly engage in merits review. And third, no submissions were directed by SJ to the declaration sought in prayer 2B.

51 Accordingly, and after further discussion between the Court and the parties as to the precise scope and content of the issues raised for consideration in the proceedings, on the second day of the hearing the issues for determination were refined and reformulated by SJ in the following manner:

1. Whether the development consent granted by the Council imposed conditions of consent governing a community title subdivision of lots 4 and 8.

2. If so, whether those conditions are as incorporated into the Management Plan version 2A accepted by the Council pursuant to condition 1.1

(a) whether the Council is constrained in its determination of any community title subdivision of lots 4 and 8 to the matters contained in the Management Plan by reason of its acceptance thereof in satisfaction of condition 1.1; and

(a) whether the matter of vegetative buffer is as reflected in landscape plan incorporated into the Management Plan and as attached to the Summons, and as surveyed at Denny 27/10/09 annexures “F” and “G”; and

5. In the alternative to 1 above, whether the development consent granted by the Council was a staged development consent for the purposes of the EP&A Act at the time of consent, where the subsequent stage was for the community title subdivision of lots 4 and 8.

6. If so, whether the development consent granted by the Council imposed conditions of consent governing the subsequent stage of a community title subdivision of lots 4 and 8.

7. If so, whether those conditions are as incorporated into the Management Plan version 2A accepted by the Council pursuant to condition 1.1

(a) whether the Council is constrained in its determination of any community title subdivision of lots 4 and 8 to the matters contained in the Management Plan by reason of its acceptance thereof in satisfaction of condition 1.1;

(a) whether the matter of vegetative buffer is as reflected in landscape plan incorporated into the Management Plan and as attached to the Summons, and as surveyed at Denny 27/10/09 annexures “F” and “G”;

52 It was accepted by SJ that if the questions raised by it were answered in the negative, then the amended summons must be dismissed.

53 The essence of SJ’s claim was that in granting the deferred commencement consent, the council had determined that lots 4, 8 and 19 were suitable for a community title subdivision and that in considering any future development application the council was constrained by this determination. It was therefore not open to the council, as the council subsequently purported to do on 24 February and 5 September 2005, to form a view contrary to, or inconsistent with, the deferred commencement consent.

Applicable Environmental Controls

54 The relevant environmental controls that applied at the time of lodging the development application were as follows:

(a) the Ballina Local Environmental Plan 1987 (“the LEP”); and
(d) the DCP.

Legislative Framework

55 Section 80 of the Environmental Planning and Assessment Act 1979 (“the EPAA”) as at 24 June 2004 (the date of the resolution by the council to grant the consent to the development application) relevantly stated as follows:

80 Determination

(1) General

(a) granting consent to the application, either unconditionally or subject to conditions, or

(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

(3) “Deferred commencement” consent

A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

(4) Staged development

(a) for the development for which the consent is sought, or

(b) for that development, except for a specified part or aspect of that development, or

56 Section 80A(4) stated that a development consent condition may be imposed notwithstanding that it is expressed in terms of outcomes or objectives:

(4) Conditions expressed in terms of outcomes or objectives

(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

Whether the Consent Imposed Deferred Commencement Conditions Governing Any Future Determination of the Community Title Subdivision of Lots 4 and 8?

57 Dealing with issues 1-4 together, SJ submits that, first, the consent granted by the council imposed binding conditions governing a community title subdivision of lots 4 and 8 which were those contained, in particular, in conditions 1.1 and 1.3 of the consent. Secondly, these conditions included the terms of the GGMP. Thirdly, and as a result, the council was constrained by the conditions, and therefore the GGMP, in respect of any future determination of the community title subdivision of lots 4 and 8. Therefore, the 10m vegetation buffer was that reflected in the landscape plan incorporated into the GGMP and as surveyed by Mr Tony Denny, a surveyor engaged on behalf of SJ, and similarly, the dwelling yield and location were also those specified in the GGMP.

58 It was not contended by SJ, and nor could it be, that the consent was a consent for community title subdivision. It was acknowledged by SJ that this subdivision was to be the subject of a future development application. This was explicit in the material put before the council in its determination of the development application. Rather, SJ asserted that the consent prescribed the “parameters” for any future subdivision by means of incorporation of the contents of the GGMP pursuant to, in particular, condition 1.1. These parameters were impermissibly abrogated by the council when it subsequently came to determining whether the deferred commencement conditions had been met, and therefore, whether the consent was operative on 24 February and 5 September 2005.

59 The relevant principles of construction of a development consent may be summarised by the following trinity. First, a development consent is to be construed fairly and liberally in context, according to its written terms and having regard to its function as a public document operating in rem for the benefit of successors in title (Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324, House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [37] and [41] and Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 at [161] and Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [2010] NSWLEC 10 at [46]-[56] and the authorities referred to therein).

60 Second, a development consent must be considered a stand alone document and recourse may only be had to other documents if these are incorporated in it expressly or by necessary implication (Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395 at [100], Nambucca at [161] and Vis Visitor at [50]-[54]).

61 Third, “the Court can have regard to objective circumstances, including the physical circumstances, the plans accompanying the development application, and matters relating to title” (Westfield Management Ltd v Perpetual Trustee Company Limited [2006] NSWCA 245 at [41]). That said, mere approval of an application does not incorporate in that approval everything contained in or referred to in the approval (Vis Visitor at [51]).

62 In my opinion, to the extent that the consent made express reference to the DA, it can be used in the interpretation of the consent. It would be impossible to understand the reference to “Community Title Subdivision” in deferred commencement condition 1.1 absent doing so. Similarly, to the extent that satisfaction of condition 1.1 depended expressly on the recommendations made in the report by Mr Peter Parker dated 20 April 2004 and the Flora and Fauna Assessment Report prepared by Aspect North dated November 2003, it is also permissible to examine these documents in the construction of the consent.

63 Moreover, because condition 2.1 of the consent stated that development was to be “carried out generally in accordance with the plans and associated documentation lodged by the applicant” (emphasis added), then in addition to the plans specifically referred to in that condition, this associated material may also be consulted in the interpretation of the consent.

64 Having determined this, in my view, when regard is had to this documentation there is little doubt that the DA sought approval for, amongst other things, a proposed development that included the eventual creation of two community title lots, namely, lots 4 and 8, that would be the subject of future development application.

65 There is little doubt upon examination of the totality of the material before the council that in determining the DA the council had regard to the proposal in its entirety, including the suitability of lots 4 and 8 for the purpose of community title subdivision.

66 However, in determining the DA it is apparent that the council considered that no conditions ought to be imposed governing the future community title subdivision of lots 4 and 8 because additional information was required regarding the proposed use of those lots. It was on this expressly stated basis that the deferred consent “to undertake a 19 Lot Torrens Title Residential Subdivision” over lots 12, 13 and 15 was granted. That is to say, on a proper construction of the consent, the consent imposed no conditions circumscribing the determination of any future development application in relation to lots 4 and 8. This is because, as the text of the consent makes plain, the council required further information before it could make any determination not only in relation to the development of those lots, but also before it could finalise its approval over the “subject land” forming the basis of the application and deferred consent.

67 Construed fairly and liberally, the deferred commencement consent clearly distinguished between conditions concerning the matters as to which the council had yet to be satisfied before the consent could operate - which included the provision of the additional information concerning the development of lots 4 and 8, (s 95(2) of the EPAA) – and those concerning matters about which satisfaction had been reached. In this regard the consent was unremarkable.

68 Construed fairly and liberally, the deferred commencement condition 1.1 did not state that once the additional information had been submitted to the satisfaction of the council regarding the proposed use of lots 4 and 8, a determination, binding or otherwise, would be made in respect of those lots. All that it stated was that the information was required in order for the consent to become operative. The condition goes on to prescribe the form and content of the additional information, but apart from mandating the provision of further information on the matters specified, nothing more was stipulated.

69 Therefore, save for one exception, the consent cannot be construed as prescribing, as SJ submitted, any positive conditions which would provide the foundational framework, or “parameters”, for the granting of a future consent in relation to development of lots 4 and 8. In this respect, the consent is simply inchoate. To construe the consent otherwise, even having regard to the DA and the associated material accompanying it, would be, in my opinion, to unjustifiably implant words into the language of the consent.

70 That one exception is condition 1.3 which merely required that lots 4, 8 and 19 were to achieve the density stated therein. However, once again, without more this condition does not, in my view, establish any binding precedent for the future development of those lots.

71 SJ submitted that the terms of the consent enlivened s 80A(4) of the EPAA and that the deferred commencement consent in effect imposed conditions expressed in terms of outcomes or objectives permissible pursuant to that provision. I do not agree. Properly interpreted there was, in my opinion, no outcome or objective expressed in the deferred commencement conditions that any future community title subdivision of lots 4 and 8 was required to achieve, other than the provision of the additional material specified in condition 1.1 in order for the consent to become operative. While one possible exception may have been the prescription of density in condition 1.3, read either in company or in isolation of the remaining terms of the consent, the condition was not inextricably related to any future community title subdivision of those lots. Accordingly, upon a proper analysis of the consent and its conditions s 80A(4) does not assist SJ.

72 In its submissions SJ rhetorically asked “what work do the deferred commencement consent conditions do in this consent?” The answer given by the council was “frankly, it is not entirely clear.” While I am sympathetic to this response, what is clear is that once the deferred commencement conditions were satisfied the consent for the development of the lots referred to in the description of the “subject land” became operative. Nothing more and nothing less. Any future application for the development of lots 4 and 8 was just that, viz, an undetermined application which was subject to an unconstrained exercise of the council’s discretion in light of all the relevant material and circumstances, including the consent the subject of these proceedings.

73 Understandably given the outcome SJ seeks by this application it is compelled to argue against the setting aside of the consent by way of relief. But the consent, when properly construed, cannot give SJ the guarantees it needs in respect of any future development approval of lots 4 and 8. This is because, having regard to the language of the deferred commencement conditions either, even liberally and fairly construed, condition 1.1 means what it says and once the additional information was provided to the satisfaction of the council then the proposed development of the “subject land” (which did not include lots 4 and 8) could proceed, or the council has improperly deferred consideration of critical aspects of the proposed development and the subdivision of lots 4 and 8 and the consent is void (Weal v Bathurst City Council (2000) 111 LGERA 181 at [93]-[97] and Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-276). Either way SJ cannot obtain the relief it seeks.

74 Naturally, SJ resisted the latter possibility on the basis that the proposed future community title subdivision was raised for the council’s consideration in the DA, which concerned the entirety of the proposed development including the future use of lots 4 and 8. However, if the consent is to be construed in the manner proposed by SJ I do not agree.

75 The question raised by SJ in the first issue must therefore be answered in the negative as a matter of construction. This is sufficient to dispose of the application in its entirety. However, it is appropriate, in case I am wrong, that I deal with the remainder of the argument raised by SJ and the council in relation to the first issue.

76 The council further submitted that even if conditions were imposed in the deferred development consent governing the community title subdivision of lots 4 and 8 as contended for by SJ, the council could not, in any event, fetter any discretion it had in the future determination of any development application in respect of those lots. In support of its submission the council relied on various authorities concerning statutory bodies impermissibly constraining the future exercise of its statutory powers and function by entering into contracts or setting policy (for example, Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1977) 139 CLR 54 and R v Hammersmith and Fulham London Borough Council; Ex parte Beddowes [1987] QB 1050).

77 However, these authorities, and the subsequent decisions applying them, have emphasised that where the fetter is the result of a validly exercised statutory power there is no general principle invalidating the constraint (Hammersmith at 1604 and Camberwell City Council v Camberwell Shopping Centre Pty Ltd (1992) 76 LGRA 26 at 41).

78 The decision of Rocca v Ryde Municipal Council (1961) 7 LGRA 1, referred to the Court by the council, is consistent with this principle. In this case it was held that unauthorised approval by way of exchange of letters for a particular use of land for the construction of a block of professional rooms amounted to an unlawful fetter on the council’s power as the letter could not be regarded as a consent within the meaning of the County of Cumberland Planning Scheme Ordinance. This was because the description of what was proposed to be built lacked sufficient certainty of description as required under the Ordinance. The letter amounted at its highest, Sugerman J held, to “a first step towards a final consent” (at 7) or an “indication of readiness to consent to the erection of some form of ‘professional rooms’” (at 8). The fact that the proponent had already acted on the purported consent and built three shops did not preclude the council from subsequently exercising its discretion with respect to the construction of a particular building because it could not by contract (the letters) hinder the exercise of its statutory discretion. Thus because there had been no initial valid exercise of statutory power, the council was not bound by the content of the letters.

79 The council submitted that the facts in Rocca were analogous to the present case inasmuch as the consent was no more than “an indication of readiness” or a “first step towards a final consent” to community title subdivision of lots 4 and 8. Alternatively, the council submitted that there was no express or implied power to grant a development consent which included a provision, express or implicit, that a council could not refuse a future development application even if it complied with earlier established criteria. That is to say, there was no provision under the EPAA for the granting of an “in principle” consent in the manner proposed by SJ thereby fettering the consideration of a future development application. Accordingly, any purported consent doing so would be an invalid exercise of power by the council which would not preclude it from passing the resolution it did on 24 February or 5 September 2005.

80 Three responses may be made to these submissions. First, the extent to which a binding ‘in principle’ development consent is permissible is not clear. A species of approval in principle has been recognised by the High Court (Mangano v Holroyd (1972) 26 LGRA 357 at 362, Grange v Sullivan (1966) 116 CLR 418 at 431- 432 and Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 at 309), although these authorities must now be read in light of more recent authorities referred to above establishing that the consent must not defer the consideration of a fundamental matter (Cameron v Nambucca Shire Council and Weal v Bathurst City Council).

81 Second, and in any event, I do not agree with this characterisation of the consent. As explained above, properly construed there was no in principle planning permission granted to SJ by the consent in respect of the community title subdivision of lots 4 and 8. Rather, the terms of the consent made it clear that additional information was required to be provided to the satisfaction of the council regarding the proposed use of those lots. No approval, in principle or otherwise, was given by the council for the future development of those lots.

82 Third, the latter submission is, in my opinion, misconceived insofar as the statutory power exercised by the council in the granting of the consent was validly exercised by it. Neither party has made a suggestion to the contrary. The issue is, as I have discussed above, one of the construction of the consent, and for the reasons I have given above the consent neither approves nor imposes conditions governing the community title subdivision of the lots. It was for this reason that the council was unconstrained in the exercise of its power on 24 February and 5 September 2005.

83 But if this analysis is incorrect and conditions were imposed by the deferred commencement consent governing the future community title subdivision of lots 4 and 8, it is appropriate that I consider whether the council would have been prevented from later refusing to grant consent to any development application for community title subdivision or from altering the conditions imposed earlier. In so doing, I have assumed that the conditions were those as were incorporated into the GGMP given the terms of the council’s letter to SJ on 5 September 2005.

84 SJ submits that by its later resolutions of 24 February and 5 September 2005, the council sought to alter the conditions it had earlier imposed in the consent in two significant respects: first, in the measurement of a 10m vegetation buffer protecting remnant rainforest located on the proposed development site, and second, in the dwelling location and yield of lots 4 and 8.

“10-m buffer zone”

85 In relation to the vegetative buffer issue, a difference of opinion emerged between the council and SJ as to where a “10-m buffer zone” protecting significant vegetation during construction should be placed on a survey of the site.

86 SJ submitted that the buffer was as reflected in the landscape plan incorporated into the GGMP and as surveyed by Mr Tony Denny. Mr Denny swore two affidavits in the proceedings on 27 October and 7 December 2009 respectively. In his first affidavit, Mr Denny deposed that Mr David Kelly, the surveyor for Ballina Shire Council, had surveyed the site using a methodology agreed upon by himself and Mr Kelly. Then using the plans from the ERMP, Mr Denny placed the 10m buffer line onto a proposed survey plan to the east and west of the development site. It is this buffer line which SJ asserted was the correct buffer line the subject of condition 1.1 of the deferred commencement consent.

87 By contrast, Mr Kelly, the council’s surveyor, depicted a different 10m buffer line that had the practical effect of reducing the developable land available to SJ. The reason for the difference, Mr Kelly explained in his affidavit sworn 8 December 2009, was because he had calculated the buffer from the tree dripline pegged on 9 July 2009, whereas Mr Denny had calculated it from the plans attached to the ERMP. The area of the remnant rainforest in the ERMP was of a lesser area than the area within the surveyed dripline. In his earlier affidavit sworn 12 November 2009, Mr Kelly stated that his depiction of the 10m buffer line was consistent with the report of Mr Parker dated 20 April 2004.

88 SJ submitted that the 10m buffer line depicted by Mr Kelly was consonant with condition 1.1 of the consent because it was not only consistent with a proposed rehabilitation and revegetation program reflecting the recommendations of the same report by Mr Parker, but it was also consistent with the pictoral representation of the remnant and buffer contained in the ERMP and GGMP. To measure the 10m buffer from the current actual dripline of the rainforest contravened, it argued, the clear instructions of Mr Parker contained in his report.

89 Neither Mr Kelly nor Mr Denny were cross examined. Their joint report simply highlighted the disparity in their respective positions.

90 In support of its contentions concerning the buffer line, SJ also relied upon an extract of a statement of evidence prepared by Mr Ian Gaskell in October of 2008 for Class 1 proceedings in this Court (Newton Denny Chapelle v Ballina Shire Council 08/10555). In it Mr Gaskell appeared to adopt the position for which SJ currently contended in respect of the measurement of the 10m buffer zone. I placed limited weight on this evidence on account of its selectivity and absence of context.

91 In my view this factual dispute can only be resolved, particularly in a Class 4 application such as this, by recourse to the actual terms of the consent having regard to any material incorporated into it by express reference or necessary implication. Put another way, in judicial review proceedings such as these I am not permitted to descend as, in my opinion, SJ comes perilously close to inviting me to do, an assessment of the merits of the council’s decision regarding the positioning of the buffer.

92 When regard is had to the plain and unambiguous language of condition 1.1 and given the final acceptance by the council that the deferred commencement conditions had been satisfied by its acceptance of the amendments made to the GGMP (see the council’s resolution on 24 February 2005 and its letter dated 5 September 2005), then it appears that the “10-m buffer zone” is that reflected in the landscape plan incorporated into the GGMP or as surveyed by Mr Denny on 27 October 2009.

dwelling yield and location

93 In terms of the dwelling yield and location, SJ contended that consequent upon the council’s approval on 24 June 2004 of the development application, once the development proposal was amended to conform with deferred consent condition 1.3 prescribing that lots 4, 8 and 19 be a minimum of 1200 square metres pursuant to the requirements of the L1 Control Plan Area of the DCP, the council was bound by the terms of this condition and could not, as it purported to do by the resolution passed on 24 February 2005, vary the terms of the consent by concluding that lots 4 and 8 were not suitable for multiple dwelling development.

94 In support, SJ relied on affidavits sworn by Mr Stephen Connelly on 5 November 2009 and 7 December 2009. Mr Connelly is a town planner, who until 2008 conducted his practice through SJ, of which he was a director. The affidavits were provisionally admitted into evidence, over the objection of the council, subject to relevance. Again, it was the council’s submission that review of this issue necessitated a descent into the merits of its decision and could not properly be the subject of judicial review.As compelling as this argument was, and despite the limited relevance of these affidavits (and the other evidence upon which SJ sought to rely) to this issue, I nevertheless admitted the material.

95 In his two affidavits Mr Connelly deposed that in his experience there was a clear expectation by councillors and council officers that if consent was granted to a development application for subdivision, that the future development of the land would proceed in accordance with the subdivision plan and the land use designations defined for individual lots on that plan. After consent was granted, the council would generally proceed to formalise its decision by, if necessary, an amendment to the preferred land use designations in its development control plan to create a site specific control plan. Mr Connelly gave several examples of developments that had proceeded in accordance with this “protocol”, all of which were, in his opinion, developments similar to the one the subject of these proceedings.

96 Thus, SJ submitted, even if the community title subdivision of lots 4 and 8 was contrary to the DCP, which it did not accept, this ought to have resulted in an amendment to the DCP rather than any subsequent rejection of this aspect of the proposed development after consent had been given.

97 In response, Mr Andrew Smith, a town planner employed by the council, swore in his affidavit dated 4 December 2009, first, that the development application was not, despite SJ’s protestations to the contrary, consistent with the provisions of the DCP, and second, that no application had been made to the council either before or after the determination of the DA to amend the DCP. In respect of the other developments that had purportedly proceeded in accordance with the “protocol” referred to in Mr Connelly’s affidavit, Mr Smith factually distinguished them from the current proposed development.

98 The two town planners prepared a joint report of which an unsigned copy was admitted into evidence without objection. The report did little more than reiterate the differences of opinion expressed by the town planners in their affidavits and restate the issues in dispute in the proceedings.

99 The factual detail to which both affidavits and the joint report descended only served to confirm that in respect of the Court’s examination of this issue, SJ were in truth seeking merits review of the council’s decision. I found little assistance was to be gained from this material.

100 SJ also relied upon a statement of evidence of Mr Andrew Smith prepared in October 2008 for earlier Class 1 proceedings (Newton Denny Chapelle v Ballina Shire Council 08/10555). The statement of evidence restated the council’s position that lots 4 and 8 were not suitable for community title development and that, therefore, “development application 2007/687, the subject of this appeal, must be considered on its own merits without any presumption that there is an entitlement for community title development based on development consent 2004/605.” SJ argued that this statement was tantamount to an admission that the consent the subject of these proceedings had in fact initially granted approval for community title development on those lots.

101 In my opinion, standing alone it would be dangerous to accord substantial weight to this statement prepared, as it was, in different circumstances and for difference proceedings.

102 Similar to the vegetative buffer zone issue, the resolution of the dwelling yield issue is located in the terms of the consent. That is to say, condition 1.3 of the consent does contain a prescription as to the density of the dwellings on the site for lots 4 and 8 in accordance with the controls in the L1 area established under the DCP for community title dwellings.

103 However, and to reiterate my earlier findings, this is not to be equated with a tacit consent for the community title development of those lots concomitant that yield. Nowhere in the approval is such consent given and the council’s resolution concerning future lot yield did not bind it in its future deliberation of any anticipated development application concerning lots 4 and 8.

Was the Development Staged Development?

104 In the alternative to issues 1-4, SJ argued that the consent was a staged consent pursuant to s 80(4)(a) of the EPAA in the form in which it was enacted at that time. Accordingly, matters of yield, building platform, dwelling location and vegetative buffer had already been determined by stage 1 of the 2004 consent by way of conditions imposed in the consent pursuant to s 80(5).

105 Again SJ did not contend that the consent as framed allowed it to proceed to community title subdivision absent another development application. Rather, SJ submitted that the consent permitted it to lodge a later development application for the community title subdivision which was consistent with the earlier staged consent.

106 But in my view, s 80(4) and (5) do not assist SJ. This is because, first, none of the conditions that SJ submitted were imposed pursuant to s 80(5) and which formed an integral part of the consent constituted, as the plain words of that sub-section required, “a condition that… must be the subject of another development consent”. As the consent has been construed by me, the deferred commencement conditions are silent with respect to the proposed community title subdivision of lots 4 and 8 with the exception of the request for additional information and a probable stipulation as to density in respect of those lots. Thus, in my opinion, the consent was not a staged consent with conditions as contended for by SJ.

107 Second, and as SJ has conceded, the community title subdivision of those lots was always to be the subject of another development application, it not having been included in the development application for which consent was granted. The scheme of ss 80(4) and (5) when read together allows the consent authority to grant consent to part of a development for which consent was sought and to defer consent in relation to another part of the development which may be the subject of a further development consent. The development application, however, remains extant in respect of the part of the application which is the subject of any conditions imposed by s 80(5). No further application is required for the deferred or excluded component of the development (Patrick Autocare Pty Ltd v Minsiter for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687 at [21] and CEAL Ltd v Minister for Planning (2007) 159 LGERA 232 at [24]). It follows that because a further development application was required by SJ in respect of the community title subdivision, the consent was not a staged consent.

108 This construction is consistent with a harmonious reading of s 80(4) and (5). The presence of the word “that” in sub-section 80(4)(b) and (c) reveals that the subject-matter of the approval must have been part of the development application. The power to impose conditions in s 80(5) is engaged only when the power of a consent authority in s 80(4) is exercised. Consequently, conditions may be imposed only in respect of that part of the development application for which consent has been granted and no other. It follows that conditions could not have been imposed governing the future development of lots 4 and 8 because the consent did not extend to those lots.

109 To the extent that SJ sought to draw a parallel between s 80(4) and (5) of the EPAA as it was enacted at the time of the consent and the current Div 2A of the EPAA dealing with “special procedures concerning staged development applications”, because of the disparity in language between the two sets of statutory provisions, in my view, it is a comparison that is apt to lead to error. Division 2A is, in any event, no substitute for the plain and unambiguous language of s 80(4) and (5) which, when applied to the circumstances of the present consent militate against a finding that it was a staged development consent.

110 SJ also drew to the Court’s attention the decisions in Seyffer v Shoalhaven City Council (2006) 149 LGERA 19, Patrick Autocare Pty Ltd v The Minister for Infrastructure, Planning and Natural Resources (No 2) [2005] NSWLEC 412 and Australand Industrial No 18 Pty Ltd v Auburn Council [2004] NSWLEC 105. I did not find the factual circumstances of those cases to be of assistance in the construction of s 80(4) and (5) for present purposes.

111 In my opinion, therefore, the development granted by the council was not a staged development for the purposes of the EPAA (in existence at the time of the consent) wherein the subsequent stage was for the community title subdivision of lots 4 and 8 in accordance with the conditions imposed during the first stage of the consent.

What Was the Effect of the Resolution of the Council on 24 February 2005 Advising of the Non-Acceptance of Multiple Dwellings on Lots 4 and 8?

112 SJ contended that the effect of the resolution of the council on 24 February 2005 advising of the non-acceptance of multiple dwellings on lots 4 and 8 by reason of the application of the DCP was, as part of a resolution accepting matters in satisfaction of condition 1.1 which were concerned with multiple dwellings on those very lots, invalid and of no effect by reason of its inconsistency with the terms of the consent.

113 This submission was the logical corollary of the determination of issues 1-9 above had they been held in SJ’s favour. That is to say, if the council’s future determination of any development application concerning the community title subdivision of lots 4 and 8 was fettered by the conditions imposed by the consent, then it followed that this part of the 24 February 2005 resolution was without effect because the council lacked the power to pass this aspect of the resolution, such power having been previously exercised by it.

114 In light of my reasons above this submission must fail. The resolution must be read as it appears. There is no inconsistency between the resolution on 24 February 2005 and the construction of the consent as determined by me because satisfaction of the deferred commencement conditions did not and could not result in the imposition of conditions confining the future community title subdivision of lots 4 and 8.

115 I do not accept the characterisation of the resolution attributed to the council by SJ as either an attempt to “pick and choose” aspects of the development for which it had granted consent, or as an attempt to “remove from the applicant the opportunity to pursue that development through a future DA”. According to the terms of the consent, no approval had been granted for the proposed development of lots 4 and 8, and therefore, by its later resolution the council was not “picking and choosing” those matters about which it was not satisfied while permitting the consent to proceed. The proposed development of those lots had always been the intended subject of another development application and there was never any impediment created by the resolution, and nor could there be, to SJ lodging such an application.

Conclusion and Orders

116 It follows from my reasoning that I must answer the questions posed by SJ in its reformulated list of issues in the negative.

117 As a consequence, the relief sought by SJ must be refused and it is not necessary for me to consider whether, as was submitted by the council, the relief as framed lacked utility.

118 Furthermore, because costs follow the event in proceedings in Class 4 of the Court’s jurisdiction, SJ must pay the council’s costs unless some other form of costs order is warranted.

119 The orders of the Court are therefore that:

1. the amended summons is dismissed;

2. the applicant is to pay the respondent’s costs of the proceedings unless within 14 days from the date of this order the applicant files a notice of motion in respect of the question of costs; and

3. the exhibits may be returned.

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Citations

SJ Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151

Most Recent Citation

Cases Citing This Decision

11

Julian Edward Canny v The Owners-Strata Plan No 4983 [2018] NSWSC 80

Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833

Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW [2019] NSWLEC 20

Cases Cited

13

Statutory Material Cited

2

Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38

Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [2010] NSWLEC 10

House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44

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CITATION:	S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151
PARTIES:	APPLICANT S J Connelly Pty Ltd RESPONDENT Ballina Shire Council
FILE NUMBER(S):	40355 of 2009
CORAM:	Pepper J
KEY ISSUES:	DEVELOPMENT CONSENT :- whether the council was constrained by the terms of a deferred commencement consent in the passing of subsequent resolutions or in the future determination of any development application for community title subdivision in respect of the proposed development - in the alternative, whether the development was a staged development - application dismissed
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 80, 80A Ballina Local Environment Plan 1987
CASES CITED:	Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1977) 139 CLR 54 Australand Industrial No 18 Pty Ltd v Auburn Council [2004] NSWLEC 105 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160 Camberwell City Council v Camberwell Shopping Centre Pty Ltd (1992) 76 LGRA 26; [1994] 1 VR 163 Cameron v Nambucca Shire Council (1997) 95 LGERA 268 Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 CEAL Ltd v Minister for Planning (2007) 159 LGERA 232; [2007] NSWLEC 302 Grange v Sullivan (1966) 116 CLR 418 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Mangano v Holroyd (1972) 26 LGERA 357 Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687 Patrick Autocare Pty Ltd v The Minister for Infrastructure, Planning and Natural Resources (No 2) [2005] NSWLEC 412 R v Hammersmith and Fulham London Borough Council; Ex parte Beddowes [1987] QB 1050 Rocca v Ryde Municipal Council (1961) 7 LGRA 1; [1961] NSWR 600 Rocca v Ryde Municipal Council [1962] NSWR 600 Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321; [1970] 1 NSWR 277 Seyffer v Shoalhaven City Council (2006) 149 LGERA 19; [2006] NSWLEC 564 Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [2010] NSWLEC 10 Weal v Bathurst City Council (2000) 111 LGERA 181. [2000] NSWCA 88 Westfield Management Ltd v Perpetual Trustee Company Limited [2006] NSWCA 245
DATES OF HEARING:	9 and 10 December 2009
DATE OF JUDGMENT:	23 August 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso SC SOLICITORS McCartney Young Solicitors RESPONDENT Mr P Clay SOLICITORS Clarissa Huegill & Associates