Spinaway Holdings Pty Ltd v City of Mandurah - [2004] WASC 282

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SPINAWAY HOLDINGS PTY LTD -v- CITY OF MANDURAH & ANOR [2004] WASC 282

CORAM: COMMISSIONER BRADDOCK SC

HEARD: 2 NOVEMBER 2004

DELIVERED : 23 DECEMBER 2004

FILE NO/S: CIV 1981 of 2003

BETWEEN: SPINAWAY HOLDINGS PTY LTD
Plaintiff
AND
CITY OF MANDURAH
First Defendant
MANDURAH MARINA COMMUNITY ASSOCIATION
Second Defendant

Catchwords:

Town Planning Scheme - Canal development - Interpretation - Declaratory relief - "Developer" - Mooring rights - Right to grant of lease over Crown land - Waterways

Legislation:

Land Administration Act 1997, s 18

Mandurah Town Planning Scheme No 6

Town Planning and Development Act 1928, s 2, s 7 and s 20A

Result:

Plaintiff's application for declarations dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J Hardy
First Defendant             :     Mr D W McLeod
Second Defendant         :     Mr P J McQueen & Mr B R McMurdo

Solicitors:

Plaintiff:     Hardy Bowen
First Defendant             :     McLeods
Second Defendant         :     Phillips Fox

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nicholas & Ors v State of WA [1972] WAR 168
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Woolworths v Caboolture Shire Council & Anor [2004] QPEC 2346/03; 3465/03

COMMISSIONER BRADDOCK SC:

Background

The Mandurah Marina Estate is a canal development situated off the Old Coast Road in Mandurah, directly opposite the townsite and across the entrance to the Peel Estuary. Such canal developments provide the opportunity for residential subdivision in a setting where the owners may have direct access to waterways for the purposes of accommodating their boats and facilitating leisure activities on the waters of the estuary or the sea.
In the early 1990s the proposed development of such estates posed a number of challenges to town planning practice: who was to be responsible for the long‑term management of the canal waterways? By what mechanism was the maintenance to be funded? How were all the varying interests to be accommodated?
The City of Mandurah was supportive of the concept of such canal development but did not wish to be responsible for the ongoing maintenance costs and administration of the waterways. There were many unknowns in such schemes and many known potential problems some being structural, environmental and financial. The solution was determined to be a town planning scheme specifically designed for the purpose of the Mandurah Marina Estate development. Pursuant to this the developer would build the canals and subdivide lots for sale to individual purchasers, the waterways would be constructed on Crown land ultimately to be managed by a Community Association, which would then have long‑term responsibilities for the management, maintenance and use of the waterways, funded by the owners of the estate. The particular scheme is the City of Mandurah Town Planning Scheme No 6 ("TPS 6") which was gazetted on 16 August 1995. The Estate was illustrated on the Scheme Plan attached to TPS 6 (the Scheme Plan).
The developer involved with the project was a corporate entity called Hudson Court Nominees Pty Ltd ("Hudson"). A Community Association was ultimately incorporated called the Mandurah Marina Community Association (Inc) ("MMCA"). Briefly, the estate was subdivided, the waterways were built, the MMCA came into being and was funded pursuant to the Scheme. The development included amongst many other lots a large lot ("Lot 190") which was originally designated as a "commercial site" on the Scheme Plan. Subsequently, the plaintiff, Spinaway Holdings Pty Ltd purchased Lot 190. Instead of developing the area as a commercial site, the plaintiff has subdivided Lot 190. Consequently, there are some 32 residential lots now provided for within that area. Lot 190 adjoins the canals on two sides and the inlet on a third. Some of the new owners of those lots no doubt wish to have their own moorings adjacent to their property. The plaintiff has brought this originating summons seeking various declarations, including a declaration that the plaintiff is "the Developer as that term is defined in clause 1.7" of TPS 6. The plaintiff also claims to be entitled to a lease of the seabed in the waterways adjacent to the subdivided properties of Lot 190.
The problem has arisen because, prior to the sale of Lot 190, the MMCA had published a jetty allocation plan (the Plan) for moorings, which, in part, made use of the banks of the waterways adjacent to Lot 190 to provide moorings for owners not being owners of lots in Lot 190. The plaintiff also seeks a declaration that the Plan is invalid and not binding upon it. The plaintiff wishes to construct moorings on behalf of the subdivided owners of Lot 190. The City of Mandurah denies that the plaintiff is a successor "developer" to Hudson. The MMCA asserts that its Plan is valid and that it has the right to approve or otherwise moorings proposed to be established in the waterways. In short, there is now a deadlock over these mooring rights.
The issues that arise in this context are:
1.Is the plaintiff the Developer with the definition contained in TPS 6?
2.Does the plaintiff have a right to a lease of the seabed adjacent to Lot 190?
3.Is the plaintiff able to construct moorings in those locations?
4.Is the second defendant's allocation of jetties/moorings valid?
It is plain to see, apart from the commercial interests involved, that there are a number of people whose use and enjoyment of their property might be affected by the ability to have and use an adjacent mooring or the denial of that facility. Further, it is clear that the interests of other parties who have already been allocated moorings are potentially affected. The City is currently in a position to grant a lease of the waterways to MMCA. This was delayed due to the inability of the MMCA to provide adequate insurance, and latterly due to this litigation.

Chronology of events

1992-    The City of Mandurah resolves to proceed with canal developments.
January 93 -    Town Planning Scheme No 3 amended to permit canal developments.
November 93               -    The Mandurah Marina Estate development initiated.
15 August 1995            -    TPS 6 gazetted.
16 August 1995            -    Subdivision approval granted for the development.
23 October 1995           -    The Mandurah Marina Community Association incorporated.
13 February 1996         -    WA Planning Commission approves Plan 21270 (subdivision).
13 April 1999               -    The City of Mandurah passes resolutions concerning the management of the waterways and prospective lease to MMCA.
10 May 1999                -    First meeting of the MMCA.
14 June 1999                -    MMCA adopts the jetty allocation plan.
7 September 2000        -    Management of the waterways vests in the City of Mandurah.
30 October 2000           -    Plaintiff becomes a registered owner of Lot 190.
26 February 2001         -    Plaintiff applies for planning permission to subdivide Lot 190.
5 April 2001                 -    Letter from the City to the plaintiff concerning the allocation plan.
1 June 2001 -    Planning permission granted for subdivisional development to construct houses.
6 December 2002         -    Plaintiff applies for planning permission for the construction of jetties.
24 March 2003             -    Plaintiff receives planning permission approval for the construction of jetties.
11 June 2003                -    Plaintiff submits a draft lease to the City of Mandurah.
11 August 2003            -    originating summons filed.
14 July 2004                -    strata company of Lot 190 passes resolution to grant licence to the plaintiff to construct jetties on its behalf.

TPS 6

The Scheme Plan of the TPS 6 (Exhibit 2), shows the estate bordering the Peel Inlet with two canals constructed on either side of the commercial site Lot 190. This Scheme Plan also clearly shows that there are outside the Scheme area a number of subdivided lots which form part of the larger estate. They do not have water frontages. Lot 190 occupies a prime position adjoining the inlet on one side and a canal on two other sides. There is a public right‑of‑way around the commercial site along the edge of the waterways and the inlet.
TPS 6 is entitled "Mandurah Marina Waterway Management Scheme" and is exhibited to the affidavit of Anthony Gerard Free as "AGF 2". It is important to take an overall view of the text of the Scheme, before embarking upon an interpretation of any specific portion of it. The Scheme establishes that the responsible authority is the City of Mandurah (cl 1.3). The Scheme confirms that it applies to the whole of the land contained within the inner edge of the broken black line on the Scheme map (Exhibit 2), which area is to be known as the Scheme area (cl 1.5). The object of the Scheme is expressed to be the provision for the short and long‑term management of the waterways contained within the Mandurah Marina Estate (cl 1.6). There is an interpretation section (cl 1.7) which provides that in the Scheme, unless the context otherwise requires, the terms and expressions used shall have the meanings assigned to them in and for the purpose of the City of Mandurah Town Planning Scheme No 1A and goes on to additionally define certain other terms.
Significantly:
" 'Developer' means: Hudson Court Nominees Pty Ltd or the transferee, assignee or successor of that company which has undertaken the responsibility of developing the Mandurah Marina Estate." ‑ cl 1.7(h)
" 'development' has the same meaning as is given to the term in s 2 of the Act (The Town Planning and Development Act 1928)." ‑ cl 1.7(i)
...
" 'mooring' means any jetty, pontoon, anchor or other method of tying up or restraining a vessel within the water or against or near any wall or bank of the Waterway." ‑ cl 1.7(n)
" 'mooring envelope' means an area within a waterway within the Scheme Area where, subject to the approval of the Minister for Transport, a jetty or pen may be constructed or a mooring may be laid." ‑ cl 1.7(n)
...
" 'Waterway Development' means all of the work required to produce subdivisional lots fronting any waterway or directly related to the Waterway and depicted on the Scheme Map." ‑ cl 1.7(t)
Part II of TPS 6 provides for the subdivision of the estate. Under the heading "Developer's Responsibility" at cl 2.1:
"The subdivision of the Scheme Area will be carried out by the Developer and shall in the ordinary way be subject to the approval of the Commission."
Part III deals with development and states that at 3.1.1:
"All development work within the Scheme Area shall be carried out by and at the expense of the Developer who shall be solely responsible for making application for and securing any approval, licence or consent required under any written law in respect thereof."
Clause 3.1.3 provides that the developer may construct the waterways in stages, subject to the agreement of various authorities. Work may be carried out prior to the gazettal of the Scheme and provisions are made for construction standards to be followed. Significantly 3.1.3, 3.2.2 and 3.3.1 all refer to the "Waterways".
Part IV deals with the initial management by the developer and provides that for a period of five years from the date of practical completion of the development the developer remains responsible for monitoring, maintenance and repair of the structure of the waterways, the water quality, sediment control, removal of rubbish and algal wrack and storm and flood damage (cl 4.1.1). Provision is made for development in stages. After the five years, the developer's liability for maintenance is provided to continue until:
"(a)25 per cent of the lots within the Scheme Area have been sold by the developer;
(b)the construction of residences has been commenced on 10 per cent of the lots within the Scheme Area; and
(c)the Association has been formed and incorporated and the levy funds have been placed in the control of the Association." (cl 4.1.3)
The Scheme provides for the collection of funds to be placed in a maintenance fund to ultimately be handed over to MMCA for the payment of maintenance works. The developer is also obliged to prepare an Environmental and Waterways (Ongoing) Management Programme to the satisfaction of the Environmental Protection Authority (and others).
The developer is responsible to prepare design guidelines (cl 4.2.1) "to guide development on lots within the Scheme Area" in relation to, amongst other things, "the construction of any jetty, mooring or other structure projecting from a lot into the waterway". Clause 4.2.2 provides that the developer shall be responsible to ensure that any dwelling or other development proposed to be carried out on any lot within the Scheme Area is designed in accordance with the design guidelines. The developer's responsibility for design continues for a similar period to that set out in the management period in cl 4.1.3. Thereafter, the responsibility passes to the MMCA (cl 4.2.4) which provides after the termination of the developer's liability for the implementation of the design guidelines in accordance with the preceding paragraph the responsibility for the implementation of the design guidelines shall be undertaken by the Community Association.
It is Part V of TPS 6 that deals with the setting up of the Community Association (at cl 5.1.1):
"The Developer shall not develop more than 50 per cent in number of the lots proposed to be created in the Scheme Area until the Community Association has been formed and is able to take and hold a lease of the bed of the Waterways."
There are provisions as to incorporation and the objects of the Association, which reflect the maintenance of the waterways provisions and the responsibility of the Association. The passing of management responsibility to the Community Association is expressed to occur when the Developer has met its responsibilities:
"5.3.1 Passing of Responsibility for Management
Upon completion of the Developer's responsibilities set out in the Scheme regarding construction, maintenance and preparation of the Environmental and Waterways (Ongoing) Management Programme and the provision of written evidence to the Council that these responsibilities have been discharged to the satisfaction of the Department, the Department of Environmental Protection and the Peel Inlet Management Authority, the Community Association shall become and shall remain responsible for the ongoing management of the Waterways in accordance with the Environmental and Waterways (Ongoing) Management Programme."
In cl 5.4.4 under the heading "Rights", the following provision is made:
"The Constitution and/or Rules of the Community Association shall subject to any necessary approval of the Department ensure that any financial member ... enjoys the following rights amongst any others which the Community Association is able and considers proper to confer;
(a)the right to use any mooring as specified by the Community Association;
(b)the exclusive right to the use of any mooring within the mooring envelope of that member's lot; and
(c)the right of access to and use of any part of the Waterways subject to any by‑law or direction of the Community Association."
Paragraph 5.4.3 entitled "Establishment of Moorings" provides:
"The Community Association shall subject to any necessary approval of the Department have the right and may by its Constitution and/or Rules or by a by‑law otherwise provide for the establishment of mooring adjacent to or within the mooring envelope of any Waterway fronting a lot the owner of which is not a financial member of the Association." (emphasis added)
There are provisions for the financial contribution by those who do not become members of the Association and general provision for the responsibility of the owners of lots to contribute to the costs of maintaining the waterways.
Paragraph 5.4.9 provides:
"The Developer and/or the Community Association shall make arrangements satisfactory to the Council to ensure that all prospective owners in the Scheme Area are advised of their rights and responsibilities under the Scheme and the Constitution and Rules of the Community Association."
There are, as might be expected, further detailed provisions concerning the financial arrangements, the running of the Community Association, and the dissolution of the Community Association, the maintenance fund and payment of other administrative expenses.
Part 7 entitled "General" provides at 7.1 entitled "Staging":
"Without affecting the generality of any previous provision dealing with staging, the Developer may carry out development of the Waterways by stages and may transfer or assign the lease to the bed of the Waterways to the Community Association by stages."
Clause 7.6 also provides:
"The requirement of the Community Association to approve the establishment of any mooring in the Waterways is additional to any other obligation arising under any other written law in relation to the licensing or approval of any jetty or other structure in, over or adjacent to the Waterways."
It was submitted on behalf of the first defendant, the City of Mandurah, that the Scheme has a number of points of distinction from usual Town Planning Schemes, not least that the Scheme is principally focused on the development of the waterways and their maintenance, including the maintenance of the purity of the water and structures and arranging that there will be funding to meet these costs without any obligation being imposed upon the local government authority. This is said to be in contradistinction to other Town Planning Schemes, where the responsibility for subdivision and development work is focused on the developer to a much greater extent.
There would have been considerable engineering and other work in establishing the canals to the necessary standards and putting in place the infrastructure for the development of the Estate and setting up a Community Association with funding to take over responsibility for the management of the waterways. It is significant that the developer was required to establish design guidelines and during the five year initial period to ensure compliance with the guidelines before handing that over also to the Community Association. It was submitted that the City had been placed in something of a dilemma in relation to the plaintiff's subsequent application for the development of Lot 190 into strata lots for residential purposes. The City had to consider that application as any other application for planning approval, even though the original Scheme did not contemplate the subdivision of Lot 190 in this way. Similarly, the City had to consider the application for approval of the construction of moorings or jetties, which it granted, subject to the approval of MMCA under the terms of TPS 6.
By its originating summons, the plaintiff seeks to break the deadlock arising from this situation, in which the plaintiff asserts that it cannot construct jetties or moorings without having the rights of a lease or licence to the sea bed. The City wishes to grant a lease to MMCA, which has already allocated rights to some moorings which conflict with the rights that the plaintiff says ought to be allocated to the strata title holders of the subdivided lots of Lot 190. There is no dispute between the parties as to the salient facts of the matter.

Is the plaintiff a developer within the terms of TPS 6?

The definition in the Scheme was set out above and is found at 1.7(h) of TPS 6.
The plaintiff says that Spinaway Holdings Pty Ltd is a successor in title to the original developer, Hudson and thus is the "Developer" under TPS 6. This argument is based upon the transfer of title to Lot 190 to the plaintiff from Hudson, although there was an intermediate owner, San Marco Pty Ltd. But for the fact that its name appears upon the Certificate of Title (Exhibit GHJ 3 to the affidavit of Grant Heaton Johnston sworn 13 October 2003), there is no evidence as to San Marco Pty Ltd's role in the estate or its development at all. There is no evidence of any contract between the plaintiff and Hudson. What appears from the evidence is that the plaintiff purchased the property from San Marco Pty Ltd who had purchased the property from Hudson.

The definition of "Developer" in par (h) of 1.7 is not simply that the developer is the transferee, assignee or successor but the "transferee, assignee or successor of that company which has undertaken the responsibility of developing the Mandurah Marina Estate". This phrase is clearly a definitional phrase and upon ordinary construction of the meaning of that phrase "developer" conveys more than simply any successor in title to property held formerly by Hudson. It requires a consideration of what "the responsibility of developing the Mandurah Marina Estate" entails and whether the plaintiff undertook that obligation.
The answer to that question requires a consideration of Part II of TPS 6, where the developer's responsibility is expressed to be "the subdivision of the Scheme area" and the provisions in Part III of 3.1, which deal with development. Clauses 3.1.1 and 3.1.2 speak of "development work", which is not a term which is specifically defined. However, the phrase is used in the context of the Scheme area and in 3.1.3 it is provided that the developer may construct the Waterways in stages subject to the agreement of various authorities. And, at 3.2.2, under the subheading "Carrying out of work" it is stated that it is consistent with the Scheme that the carrying out of work in respect of any part of the Waterway development may be undertaken prior to the gazettal of the Scheme. The final subsection concerning development is 3.3 subtitled "Developer's Responsibilities", where (at 3.3.1) under the title "Construction Standards", it is stated that "the Waterways shall be constructed in accordance with the specifications and standards in the Waterway construction plans etc" (emphasis added).
In this context, the phrase "the responsibility of developing the Mandurah Marina Estate" clearly has a meaning more specific than simply any item of development that happens to fall within the relevant area at any time. The whole thrust of the Scheme was to provide for the proper development and management of the Mandurah Marina Waterways. That work clearly comprised the subdivision of the Scheme area, the obtaining of the necessary approvals for that subdivision, the indemnity of the Council for any of the costs of the development work, and the construction of the Waterways. In addition to that, management responsibilities were placed upon the developer for a specific period of five years as previously detailed.
There is no evidence of any formal identification of a point in time at which the Mandurah Marina Estate was "completed". I am told that Hudson is now defunct. The second defendant was incorporated in 1999 to take over the management of the Waterways, which it has done, pursuant to cl 5.3.1. The submission that the development work is completed, for the purposes of the TPS 6 is compelling. Mr Dodd, the president of the MMCA, in his affidavit of 11 November 2003 at par 3.3 states that "the rights and responsibilities of the original developer 'have concluded' " and "there are no further requirements upon the developer under TPS 6". Whilst the plaintiff may be a developer in relation to Lot 190, having purchased the commercial site and seen to its subdivision into 32 strata title lots, that occurred after the MMCA was established and had adopted the Plan. In my view, cannot be said that the plaintiff is "the Developer" in relation to the Mandurah Marina Estate within the definition in TPS 6, as read in the light of the whole Scheme.
The position of the plaintiff as the argument was developed, appeared to be that the status of "Developer" was a solution to the practical problems it faced. The plaintiff considered that from that status flowed the right to a lease of the sea bed from the first defendant and the necessity for the second defendant to revise its allocation of mooring rights. I am of the view that the plaintiff is not the Developer for the purpose of TPS 6. Even if I had taken the contrary view, it would not follow that the plaintiff was entitled to the further relief sought. Indeed, the structure of TPS 6 is such that once a "Community Association" has been formed and taken over responsibilities from the developer, there is designedly a continuing constraint upon the use, by the owners of subdivided lots, of the waterways, moorings and jetties.
It remains necessary to consider the balance of the relief sought in the originating summons as, despite the approach of the plaintiff in argument, the declarations are not all linked to the "Developer" status proposition.
The Plaintiff claims:
"(a)a declaration that the Plaintiff is the Developer as that term is defined in clause 1.7 of the Scheme;
(b)a declaration that the Plaintiff, by reason of its ownership and control of the Land and its status as Developer, is the only entity which may be the developer of the Embayments and is the only entity which may be granted a lease of portion of the Waterways for the purpose of developing the Embayments;
(c)a declaration that the Approval, to be given effect, requires the Defendant to grant a lease of portion of the Waterways to the Plaintiff ('the Sea Bed Lease') subject to the approval of the Minister for Lands ('the Minister')
(d)a declaration that the MMCA must not procure the Sea Bed Lease directly from the Defendant;
(e)a declaration that the MMCA must take an assignment of the Sea Bed Lease from the Plaintiff as required by clause 7.1 of the Scheme;
(f)a declaration that the powers of the MMCA;
(1)to confer rights to use moorings and access the Waterways under clause 5.4.2 of the Scheme; and
(2)to establish moorings under clause 5.4.3 of the Scheme;
are subject to the MMCA holding an interest in the Sea Bed Lease as lessee following assignment of the Sea Bed Lease from the Developer;
(g)a declaration that the requirement of the MMCA to approve the establishment of any mooring in the Waterways under clause 7.6 of the Scheme is a reference to the obligation of the MMCA to ensure compliance with design guidelines under clause 4.2.2 of the Scheme;
(h)a declaration that the Allocation Plan is not binding on the Plaintiff or the Defendant;
(i)a declaration that the MMCA has no power to confer property rights in the Waterways until it has taken an assignment of the Sea Bed Lease from the Plaintiff as required by clause 7.1 of the Scheme;
(j)a declaration that the Plaintiff, as lessee of the Sea Bed Lease and subject to the consent of the Minister, may grant to any person or persons described in clause 5.5.1 of the Scheme, a right to an Embayment by sublease;
(k)costs."
At the conclusion of argument, counsel for the plaintiff expressly abandoned the relief sought under pars (d), (e), (i) and (j). Paragraphs (b), (c), (d) and (e) deal with the plaintiff's claims in relation to a lease of a portion of the Crown land comprising the waterways. The extent of this proposed lease is not specifically defined in the proposed orders and for that reason alone, it might be difficult to grant the relief sought in terms of the originating summons. Although the area in question could undoubtedly be defined by reference to the Embayments on the allocations Plan. Subparagraphs (f), (g) and (h) concern the role of the MMCA in relation to the moorings.

Does the plaintiff have a right to a lease of the sea bed?

The factors that appear to be relevant to the plaintiff's claim in relation to the sea bed, by which expression I understand the plaintiff to mean a portion of the sea bed under water in the waterways adjacent to Lot 190, are as follows:
(i)that the waterways are Crown land [s 18 of the Land Administration Act];
(ii)that the management of the waterways has been vested in the first defendant;
(iii)that TPS 6 provides nothing directly about any rights of owners of lots to the sea bed, whether by lease or otherwise;
(iv)the only references in TPS 6 to leasing of the sea bed are contained in cl 5.1.1 (which is concerned with the time limited for the formation of the Community Association) specifically:
"the Developer shall not develop more than 50 per centum in number of the lots proposed to be created in the Scheme Area until the Community Association has been formed and is able to take and hold a lease of the bed of the Waterway."
and cl 7.1, which states:
" ... the Developer may carry out the development of the Waterways by stages and may transfer or assign the lease to the bed of the Waterways to the Community Association by stages."
(v)there is no evidence that any lease of any part of the sea bed has been granted, and the evidence is that the first defendant has been waiting for the second defendant to obtain insurance for this purpose;
(vi)some jetties/moorings have been constructed;
(vii)the first defendant has granted the plaintiff planning permission ("the Approval") to construct jetties, with the express reservation that the Council has "not considered the merits of granting a lease or licence under s 18 of the Land Administration Act and such consideration will require a separate officer report and a separate decision by Council".
The plaintiff's argument is founded upon the proposition that the plaintiff must acquire a proprietary right in the sea bed in order to construct jetties adjoining and attaching to subdivided lots formerly part of Lot 190. The plaintiff has obtained planning permission for the construction of jetties (Exhibit GHJ 8 to the affidavit of Mr Johnston dated 13 October 2003) from which the extract of the reservation is quoted above (the Approval in par (c) of the originating summons). In order to construct the proposed jetties, it is significant that the plaintiff would also require the approval of the second defendant under cl 5.4.2 and cl 7.6 of TPS 6.
Embayments adjoining the former Lot 190 were clearly contemplated at the time of the setting up of the Scheme as can be seen from the Scheme Plan (Exhibit 2) which has indicated on it, by dotted lines, a number of potential embayments adjacent to both sides of that lot. The actual allocations that have been made under the Plan by the second defendant are indicated on a copy of the Plan tendered in evidence as Exhibit 1. This shows, marked in yellow, allocations which either have been or can be made to the plaintiff, and, marked in red, allocations that have already been made to other lots within the wider Estate which do not adjoin the waterways. Also marked in black and cross‑hatched are certain additional embayments that possibly could be allocated to the former Lot 190.
It can therefore be seen that, due to the fact that Lot 190 was not sold to the plaintiff until after the allocation of moorings under the Plan, and that the decision to subdivide Lot 190 was not given planning approval until 1 June 2001, the current situation was not one envisaged at the time the Scheme was originally gazetted in 1995 nor when the Plan was adopted. Some moorings in the embayments adjacent to Lot 190 have been or are capable of being allocated to the owners of subdivided lots of that area. TPS 6 envisaged that the "Community Association" is the party responsible for the waterways and holding a lease of the waterways. It may have been contemplated, in the context of staged development, as appears in cl 7.1, that the developer might have obtained rights by way of a lease to the bed of the waterways based on the reference in that clause of "assigning or transferring the lease to the Community Association" by stages. There is no evidence to suggest that any lease has been granted to any part of the sea bed under the waterways to any party, whether Hudson or subdivided owners, before or after the first defendant was granted the management rights of the waterways on 7 September 2000.
The plaintiff is therefore claiming to be entitled to further rights than it acquired by transfer of the subdivided Lot 190 on 30 October 2000. No basis for any right to demand a lease of the adjoining Crown land has been demonstrated either in the documents or the course of argument. The management of that Crown land was vested in the first defendant prior to the plaintiff obtaining title to Lot 190. The second defendant had allocated moorings. As I have found, the plaintiff is not the Developer as set out in the Scheme TPS 6. There would have been no basis to sustain a demand, had one been made by the Developer, for a lease of the Crown land. A mechanism might have been provided for partial leasing of the waterways, in the course of development, as the Developer had the responsibility of the management of the waterways for a minimum five year period, and possibly longer depending upon the timing of the incorporation of the Community Association and the satisfaction of the provisions set out in TPS 6 at 4.1.3. But this is not what occurred. The fact that other moorings have been constructed by implication with the approval of the first defendant and the consent of the second defendant would show that there is no insuperable obstacle to such moorings being constructed, albeit on or adjacent or attached to the submerged Crown land, without there being a formal lease or licence in place. The argument of necessity is said to be that the grant is required to give effect to the Approval. However, that Approval expressly excluded such a right and the argument cannot be sustained.
The first defendant has responsibility for management of the relevant sea bed areas by virtue of the title granted to the first defendant (Annexure GHJ 4 and GHJ 5 to the affidavit of Mr Johnston of 13 October 2003). Those titles show respectively the waterway areas to the north and south of Lot 190. They indicate that a reserve is created for the purposes of a waterway and that on 7 September 2000 a management order was granted giving the care, control and management to the first defendant, with power to lease for any term not exceeding 21 years subject to the consent of the Minister of Lands. There would appear to be no reason to prevent the first defendant permitting the construction of a jetty or mooring on the property which it has the responsibility for managing without granting any formal licence or lease. Whether the owner of the jetty would be satisfied with that situation is another matter. What is clear is that it was not intended, nor does TPS 6 provide, that the subdivision of any lot would necessarily include a lease of the adjoining underwater Crown land. Whilst TPS 6 at cl 7.1 speaks of possible assignment or transfer, that does not provide the foundation for asserting that there is or ever was a right to a grant of a lease or licence independently. The clear intent of TPS 6 is that the second defendant will hold the lease and manage the waterways and thus in my view there is no room for any proprietary right to reside in any other party, save through the statutory authority given to the second defendant by TPS 6.
Neither is it necessary to require the granting of any individual leases in respect to any individual subdivided lots to make the Scheme effective. Planning approvals are required. The consent of MMCA is required under TPS 6. The Scheme is effected so as to ensure proper continuing management of the waterways by the use of the MMCA. Accordingly, there is no basis for any right to demand the grant of a lease at all, let alone an exclusive right in any specific area. There is no evidence to suggest that the plaintiff has been refused permission to establish jetties or moorings in the areas that have been allocated to the former Lot 190 pursuant to the allocation Plan. Thus, the answer to the second issue is that there is no right in the plaintiff to demand a lease of the sea bed.

Is the plaintiff able to construct moorings in those locations?

There would appear to be no reason to prevent the plaintiff seeking permission from both the first and the second defendant to establish jetties or moorings on the reserved Crown land. However, the plaintiff has argued that it has a right to construct specific moorings, pursuant to the Scheme. As I have determined that the plaintiff is not the Developer, much of the plaintiff's argument has fallen away. Even the Developer did not have rights or responsibilities to build every dwelling or construct every facility. The plaintiff can construct the jetties where the second defendant permits but not otherwise. This is the heart of the plaintiff's dilemma and is really another way of expressing the absence of a right to a lease of a part of the sea bed.

Is the second defendant's allocation of moorings valid?

The plaintiff seeks to argue that the second defendant can only allocate rights in relation to the moorings adjacent to Lot 190 after their construction and upon the plaintiff assigning the lease of those parts of the sea bed to the second defendant, and seeks the declaration in par (f) to that effect.
The factors relevant to the consideration of this question appear to be:
(i)At the time of the adoption of the jetties allocation plan the plaintiff did not own Lot 190, which was then designated as a commercial site.
(ii)Not all potential moorings dealt with by the allocation plan have been allocated to other parties (Exhibit 1).
(iii)The plaintiff had notice of TPS 6 and the allocation plan.
(iv)The subdivision of Lot 190 came after both the adoption of the allocation Plan and the transfer of management rights to the first defendant.
(v)The second defendant has rights to allocate moorings pursuant to:
(a)its management of the waterways under TPS 6;
(b)cl 5.4.2 of TPS 6 and par 10(c) the Rules of the Association (Annexure WSD 3 to the affidavit of Mr Wayne Stanley Dodd sworn on 18 September 2003).
(vi)There is a right of way around Lot 190, but the plaintiff argues that does not require access to be provided to "third party" moorings.
The plaintiff has also argued that the reference to "approval" by MMCA is a reference only to the design guidelines for the construction of jetties or moorings and seeks a declaration to that effect. Clause 7.6 is set out in [22] above. It is found in Pt VII "General" of TPS6. The Developer has the responsibility for design guidelines initially, until the association has been formed - cl 4.22 and 4.2.3. The responsibility then passes to the "Community Association" formed - MMCA - cl 4.2.4. One of the objects of the Community Association is to be the maintenance of design guidelines - cl 5.2(d). However, in addition to this the provisions of cl 5.4.2 provide separately that the Community Association's Rules shall deal with mooring rights as specified and referred to in these reasons at [18] and reflected in r 10.2 set out below [46]. The Community Association can provide for the establishment of a mooring in certain circumstances - cl 5.4.3.
The approval referred to in cl 7.6 expressly states that the role of the Community Association is additional to other matters which would encompass at least planning permission and any relevant provision of the Jetties Act. It would clearly include consideration by the MMCA of compliance with the design guidelines. The declaration sought is an obvious statement of a meaning of the provision. The plaintiff's presumably intended that the declaration sought would serve to limit the operation or extent of the MMCA's powers to that purpose only. Specifically to affect the allocation Plan which the plaintiff challenges. The right to govern the use and allocation of moorings arises from cl 5.4.2 which is not concerned with design of the moorings at all, but locations and access to the waterways.
The plaintiff may be correct as to the fact that cl 7.6 refers to the obligation to ensure compliance with design guidelines, as being additional to usual approvals but the clause is not expressly limited to such design considerations. The MMCA has specific other obligations in relation to moorings and its "approval" may be comprised in actions necessary to discharge those obligations. For that reason it is not appropriate to make the declaration sought by the plaintiff.

The plaintiff has not sought to argue any basis other than the absence of proprietary right in the second defendant and the hierarchy of allocations indicated by the Scheme and Rules of MMCA as the basis of invalidity of the allocations made. There has been no suggestion of bias or maladministration on part of the second defendant in making the allocations, neither could there be, in relation to the plaintiff, as the plaintiff was not the owner of Lot 190 at the time nor was it contemplated that Lot 190 would be subdivided as it has been.
The argument relating to hierarchy concerns the interpretation of cl 5.4.4. Clause 5.4.4 has been set out in full at [18] of these reasons. It envisages an exclusive right being capable of being allocated to a member of the MMCA to use a mooring within the "mooring envelope" of that member's lot. That is to say a landowner should be able to "park his boat" next to his house. Clearly, in part, this is what a canal development is about. That interpretation is indeed reflected in the Rules of the MMCA at cl 10.2 which states:
"The Association may grant rights to use the jetties or moorings on such terms and at such cost as to [sic] the Executive Committee shall determine provided that the order of priority in the granting of such rights shall ordinarily be as follows:
i.wet lot members who are owners of land within the Scheme Area and who seek the use of a jetty or mooring that they have constructed or may construct adjacent to or abutting that land;
ii.jetty members who are owners of land outside the Scheme Area who have lawful access to an available jetty or mooring;
notwithstanding that a jetty or mooring site may be established in a place which is adjacent to the land of a non‑member owner of land within the Scheme Area."
The Scheme TPS 6 has, by virtue of the Town Planning and Development Act 1928 s 7(3), the status of a written law. Thus, the second defendant has a statutory right to make allocations pursuant to TPS 6. That right is not expressly subject to the second defendant holding any other interest in the waterways and there is no basis to imply such a restriction. The allocation Plan is, obviously, simply a plan indicating the allocations that the second defendant makes in relation to the use of the waterways pursuant to its rights and obligations under the Scheme. The first defendant has the management of the waterways and intends to grant a lease to the second defendant. There is no evidence as to the membership of MMCA by the relevant lot owners of 190 and that is not the basis of any challenge to the allocations. The reality is that since the time of making the allocations circumstances have changed and the plaintiff on behalf of owners of subsequently subdivided lots created out of Lot 190 seeks in effect that the second defendant review its allocation plan. That is no basis for a declaration that the Plan is not binding upon the plaintiff. No other basis has been suggested and the history would indicate that there could not be as the plaintiff was aware of the situation.
The plaintiff was advised of the Plan and the moorings concerns in a letter from the first defendant dated 5 April 2001, prior to the granting of planning permission for the subdivision of Lot 190. The apparent conflict of potential moorings was noted in that letter and a copy of the Plan supplied. The plaintiff was asked if it intended to abide by the current allocation and advised that the first defendant did not consider it had power to make alterations to the Plan. The plaintiff proceeded to subdivide. There is no evidence of its response to the letter of 5 April 2001.
There are two other issues that arose during the course of the argument in this matter. The first relates to the plaintiff's standing to seek relief. The plaintiff is said to hold a power of attorney on behalf of the lot owners of 190, although no evidence of that was placed before the Court. There is evidence of a licence from the strata owners sufficient to enable the plaintiff to construct jetties, granted to the plaintiff by the owners of the strata property.
The relief sought in par (a) of the originating summons was sought in the plaintiff's own name, presumably in order to enable the plaintiff to complete obligations that it had undertaken. Otherwise the plaintiff might be construed as acting as agent for the owners. There is no need for the purposes of this decision to do more than advert to the point without needing to decide the issue on the basis of standing. The plaintiff would appear to have had significant interests in the land and to have continuing connexion with the subject matter of the litigation, including a licence from the strata owners.
The second matter concerns the right of way reserved in the Scheme around the perimeter of the former Lot 190. There was a suggestion that the provision of such a right did not necessarily include access to the water, or any jetties attached to the land. If this argument implies that the Scheme might be thwarted by erection of a fence on the water's edge that certainly constitutes no argument in support of the plaintiff's case.
As I have already concluded that the plaintiff is not the Developer, the declarations sought as (a) and (b) must be refused. The conclusion that the plaintiff has no right to demand a lease of the sea bed/waterway disposes of the declarations (c), and would deny the declaration (b) also. For the reasons given in relation to the validity of the allocations Plan, the plaintiff has failed to make out the basis for declarations sought in (f), (g) and (h). Taken together with the paragraphs abandoned at the hearing that leads to the conclusion that the plaintiff has failed to make out the basis for any of the relief sought.
I will hear the parties on the costs of this application.