Stockland Development Pty Ltd v Manly Council

[2009] NSWLEC 1242

Land and Environment Court

of New South Wales

CITATION:	Stockland Development Pty Ltd v Manly Council [2009] NSWLEC 1242
PARTIES:	APPLICANT Stockland Development Pty Ltd RESPONDENT Manly Council
FILE NUMBER(S):	10292 of 2009
CORAM:	Moore SC
KEY ISSUES:	CONSTRUCTION AND INTERPRETATION - DEVELOPMENT CONSENT - SECTION 121B ORDER :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 121ZK
DATES OF HEARING:	12 June 2009
EX TEMPORE JUDGMENT DATE:	12 June 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P Rigg, solicitor Deacons RESPONDENT Ms C Schofield, solicitor Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

12 June 2009

10929 of 2009 Stockland Development Pty Ltd v Manly Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: This is an appeal pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 against an emergency stop work order issued by Manly Council to Stockland Development Pty Limited. Before turning to the terms of the order and the issues that arise, it is appropriate to make a number of remarks concerning the development consent that gives rise to the order.

2 The council issued a development consent to the applicant – this is a development consent dated 31 May 2007 to which are attached twelve full and two half pages of standard conditions of development consent. The notice of determination is for a proposed development involving excavation and erection of buildings comprising a supermarket, specialist shops, dwelling, parking and landscaping at 197-215 Condamine Street, Balgowlah.

3 The development consent conditions in the twelve full and two half pages to which I have adverted comprise an extraordinarily curious document. The first eighteen conditions of the standard conditions run from DA16 to DA61 (in order) but with, obviously from those beginning and ending numbers, significant omissions in this sequence.

4 Condition DA61 is immediately followed by Conditions DA344, DA345 and DA357 before returning to Condition DA69. DA9, on my assessment the numerically earliest condition, is not reached until approximately nine pages into the conditions of consent and it immediately follows Condition DA316.

5 It is difficult to tell why this has occurred and whether charitable forgiveness might be given, on the basis of either a Sudoku addiction on behalf of the author or the ingestion of the sort of opiates beloved by Samuel Taylor Coleridge during the writing of his poetry.

6 However, into this random, eclectic, anarchic and kaleidoscopic range of conditions, I am obliged to venture in order to endeavour to make sense of the emergency stop work order issued by the council to the applicant in these proceedings.

7 That order was issued seeking to restrain the applicant in these proceedings from carrying out further works on the footpath adjacent to the development in Condamine Street. The terms of the beginning of the order are as follows:

“Pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (“The Act”) Manly Council (“The Council”) hereby serves an emergency order without prior notification due to the urgency of the situation to use Stockland Development Pty Limited being a body corporate entitled to act on the order in terms of items 15 and 19 to the table of s 121B of the Act requiring you to cease work on the reconstruction of council’s Condamine Street footpath adjacent to 197-215 Condamine Street, Balgowlah.”

and then, critically,

“and to comply with Condition DA225 of council’s development consent,”
This consent being the consent to which I have earlier referred.

8 That order was over the signature of Mr Steven Clements, the Executive Manager of the Environmental Services Division and is dated 6 May 2009.

9 The terms of the order are in three parts:

• The first is to cease carrying out the footpath works;
• The second is to comply with council’s Paving Design Guidelines dated February 2002 which does not permit exposed aggregate finishes on paving on council land; and
• The third is to re-lay the non-compliant footpath works to the council’s satisfaction.

10 There are three reasons given for the emergency order. They are:

• Footpath reconstruction is not in accordance with council’s Paving Design Guidelines dated February 2002 which does not permit exposed aggregate finishes on council land.
• The development consent is not being complied with as Condition DA2 to 5 of the consent required reconstructed footpaths in streets surrounding the development to be constructed as per council’s Paving Design Guidelines dated February 2002; and
• (as a consequence) Building work is being carried out in contravention of the Act. Seven days was allowed for the reconstruction in compliance with the order.

11 As a consequence of these proceedings, as I understand it, that which is to be built along the footpath (with a variety of elements including some street furniture and waste disposal receptacles) is now agreed between the parties and an appropriate form for the first paragraph of an order is capable of being settled between them to give effect to that agreement. I have stood over until Monday morning of next week settlement of the terms of that order.

12 However, the council presses, in its proposed revision of the orders, a range of other matters that it says I have jurisdiction to require pursuant to the provisions of s 121ZK(4) of the Act.

13 To deal with those matters, it is unfortunately necessary to return to the terms of the development consent and to seek, within the curiosity of its numbering “system”, those conditions of consent, in the standard conditions of consent, that might be relevant to this issue.

14 There are, in my assessment, only four. I have diligently endeavoured to find, within that random and anarchic numbering, any further reference to the council’s Paving Design Guide but, because the relevant conditions do no appear to be clustered by topic or in any other discernible fashion, I am simply expressing the view that, to date, I have been unable to find such further reference and proceed on the basis that there is none.

15 There are four relevant standard conditions of development consent. Two of them deal expressly with the council’s Paving Design Guide. The first, which inclines me to the Samuel Taylor Coleridge assessment of the authorship of the conditions, is Condition DA224. It reads as follows:

“The reconstruction and/or construction of the footpath paving and any associated works along all areas of the site fronting {insert street name/s}. These works shall be carried out prior to the issue of the occupation certificate by a licensed construction contractor at the applicant’s expense and shall be in accordance with the council’s Specification for Civil Infrastructure Works in Paving Design Guide.”

16 I am unable to find any annotation on a street directory in the vicinity of this site of any topographic feature known as {insert street name/s}. I therefore disregard in its entirety the first sentence of DA224.

17 There is, however, an important conclusion to be drawn from the remainder of that paragraph – this is that the Specification for Civil Infrastructure Works and the Paving Design Guide are separate documents. That follows from the reference in DA225 to which I will turn shortly mentioning merely the Paving Design Guidelines. I have a copy of the Paving Design Guidelines in evidence before me. I have no knowledge of what is contained in the council’s Specification for Civil Infrastructure Works as to the best of my examination of the documents that are before me, it is not in evidence. I draw no conclusion as to what might be its contents; merely that it is a separate and distinct document and not imported into Condition DA225.

18 Condition DA225 provides:

“The pedestrian footpaths and pavements in the streets surrounding the proposed development shall be constructed as per Manly Council’s Paving Design Guidelines dated February 2002. a detailed design” [ a sentence I note starts with a lower case letter ] “showing the above details shall be submitted with the application for a construction certificate and shall be approved by the principal certifying authority prior to the issue of the construction certificate.”

19 That is the condition upon which the stop work order is predicated. The other two conditions that I consider are relevant are DA14 (which is the sixth condition after DA316). It says as follows:

“No portion of the proposed building or works including gates and doors during opening and closing operations are, to encroach upon any road reserve or other public land” - there being a curious use of a comma contained in that sentence .

20 The ordinary English construction of that sentence, despite Ms Schofield’s valiant attempts to urge something to the contrary upon me, in my view, expressly prohibits any portion of the proposed works encroaching on any road reserve.

21 The fourth relevant condition which in my view is supported by Condition DA14 is contained in Condition DA342. Condition DA342 is at p 29 of the council’s bundle (and I note is followed by Conditions DA238 et seq as part of the numbering system of this consent). It reads as follows:

“Separate application shall be made to Council’s Infrastructure Division for approval to complete the Council’s standards and specifications, works on Council’s property. This shall include vehicular crossings, footpaths, drainage work, curb and guttering, brick paving, restorations and any miscellaneous works. Applications shall be made a minimum of 28 days prior to commencement of proposed works on Council’s property. Applicants to notify Council at least 48 hours before commencement of works to allow Council to supervise/inspect works.”

22 That condition, in my view, works, by implication, in conjunction with Condition DA14. Although the applicant has provided some evidence concerning Condition DA342’s compliance, I have no evidence from the council on that point. As that is a matter upon which the council has not had an appropriate opportunity to provide such evidence, I draw no conclusion as to whether or not the applicant may or may not have complied with the terms of that condition. I am satisfied that it is not relevant for these proceedings. If the council is of the view that, for some reason, the applicant has not complied with that condition, that is a matter for it to pursue in some other forum on some other occasion.

23 As I have indicated, the foundation for the order that has been given is non-compliance with the council’s Paving Design Guidelines dated February 2002. That is made expressly clear from the preamble to the order; by the terms of paras 1, 2 and 3 of the order itself; and by the reasons given in support of the order.

24 There is no other basis provided in the terms of the document that could take one to anywhere else in these incoherent conditions of consent for any other comfort to support the terms of the order.

25 The items in the table in s 121B of the Act upon which reliance is placed are items 15 and 19 of that table. Item 15 concerns a failure to comply with the development consent. The only failure being pleaded in the order is a failure to comply with Condition DA225. Item 19 concerns cessation of carrying out specified building work or, irrelevantly in this case, subdivision work. The building work that is ordered to be ceased relates to footpath works in Condamine Street.

26 The council seeks to obtain, out of these proceedings founded on compliance with the council’s Paving Design Guidelines, a range of additional orders including:

• maintenance of the footpath;
• provision of a guarantee for the carrying out of the works and the maintenance of the footpath;
• an indemnity against public injury incidents which might arise if there had been a failure to carry out and construct the works properly; and
• a certificate that Stockland has paid all its contractors, suppliers and suppliers of services and that there is no outstanding debt owing to those who worked on or supplied goods or services to the project and that Stockland and/or Abigroup have met their long service leave obligations to everyone who worked on this project.

27 There is then a proposal for a paragraph in the orders that the construction be carried out to an acceptable industry standard which proposed condition, even if appropriate, is so vague as to be meaningless and incapable of insertion in an order.

28 There is also a requirement to consult servicing authorities; a requirement for a certification by the principal contracting authority (which is something that would be required to be carried out as part of an occupation certificate in any event) and a requirement for the giving of notice to council of that; and, finally, a requirement to repair any damage caused to surrounding property (there being a similar requirement already imported into the conditions of consent).

29 None of those additional items, in my view, is capable of being founded on the provisions of the Manly Paving Design Standards.

30 Ms Schofield courageously asks me to venture into territory beyond anything I consider could possibly be founded on any of the discretions available to me under s 121ZK(4) of the Act, all of which, in my view, must come from the order itself.

31 For me to venture beyond that would in my view be analogous to me taking an order for the removal of a table on a footpath and requiring the demolition of an adjacent building merely because it happened to be in common ownership or operation by the person to whom the order was issued.

32 The consequence of all of the foregoing is that I decline to make any orders other than the order that is to be paragraph 1 as settled between the parties in light of the agreement discussed during the course of the proceedings. The orders will provide that appeal will be upheld. The remainder of the terms of the council’s order will be discharged. There is an agreement between the parties that the satisfaction of the agreed terms of the substitute order will be by 30 September 2009. I expect the parties to bring to me nine o’clock on Monday morning an appropriate form of consent orders to reflect an agreed paragraph 1. If it is brought in terms of Form 44 of the Uniform Civil Procedure Rules2005 in hard copy and in electronic form I will ensure that it is available for sealing and entering upon payment of the appropriate fee by the parties seeking it at that time.

Tim Moore

Senior Commissioner