Tegra (NSW) Pty Limited v Harden Shire Council

[1998] NSWLEC 114

Land and Environment Court

of New South Wales

CITATION:	Tegra (NSW) Pty Limited v. Harden Shire Council [1998] NSWLEC 114
PARTIES:	APPLICANT Tegra (NSW) Pty Ltd RESPONDENT Harden City Council
FILE NUMBER(S):	10168 of 1998
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Local Government Act 1919
CASES CITED:	All Sands Pty Limited v Shoalhaven City Council 78 LGERA 435.; Lloyd & Ors v Robinson & Anor (1962) 107 CLR 142; Sargent v ASL Developments Limited (1974) 131 CLR 634 ; Commonwealth of Australia v Verwayen (1990) 170 CLR 394.; Bryson Industries Limited v Sydney City Council (1963) 8 LGRA 395 ; Waters & Anor v Hurstville City Council (1991) 77 LGRA 10 ; Parramatta City Council v Travenol Laboratories Pty Limited & Anor (1977-8) 35 LGRA 368 ; Lindisfarne Anglican School v Tweed Shire Council, (10377 of 1997, 27 February 1998); Narayanasamy v Concord Council (00054 of 1994, Talbot J, 24 February 1995)
DATES OF HEARING:	16/06/98
DATE OF JUDGMENT:	07/10/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr P J McEwen, SC Mr A Bradbury, Deacon Graham James RESPONDENT Mr R K Graham, Solicitor Abbott Tout

JUDGMENT:

1. INTRODUCTION

On 18 March 1998, Tegra (NSW) Pty Limited ("Tegra") commenced this Class 1 appeal against:

"The decision of the respondent to grant development consent subject to condition 30 requiring the payment of contributions under s 94 which are unreasonable".

This judgment concerns a preliminary question of law raised in these proceedings in the following terms:

"Whether the applicant is an applicant who is dissatisfied with the determination of a consent authority within the meaning of Section 97 of the Environmental Planning & Assessment Act 1979" ("EPAA").

Section 97 of the EPAA relevantly provides as follows:

"(1) An applicant who is dissatisfied with the determination of a consent authority with respect to his development application may appeal to the Court within 12 months after the date on which he received notice under section 92 in respect of that application or the date upon which that application is deemed to have been determined under section 96(1)".

There was no statement of facts agreed upon between the parties, but each party tendered, without objection from the other, a bundle of relevant documents (Exhibits H1 and T1) from which the following relevant facts and history can be deduced.

2. BACKGROUND AND RELEVANT FACTS

State Environmental Planning Policy 37 ("SEPP 37") was gazetted on 18 June 1993 with the stated aim that certain existing mines and extractive industries might continue to operate during a moratorium period of 2 years without the necessity for development consent. The consequence of SEPP 37 was that quarry operations which might otherwise have had the benefit of "existing use rights" needed a development consent to continue beyond the moratorium period.

In accordance with that SEPP, Tegra (then known as Jugiong Quarries Pty Limited) lodged with Harden Shire Council ("Council") on or about 16 June 1995 a development application ("DA") for the stated purpose of "continuation of existing quarrying activities" on property (correctly described as lots 2 and 3 of DP 834086 and lot 5 of DP 834109) owned by CIF Nominees Pty Limited on Bundarbo Road at Jugiong.

Liability to pay s 94 contributions, and their amount etc., were matters of contention and controversy between the parties from an early point in Council's consideration of this DA. As early as 19 March 1996, the applicant contended Council's s 94 Contributions Plan No.1 had been hastily formulated in response to Tegra's DA.

After many and frequent reports from its officers following the public exhibition of the environmental impact statement and related documents, Council resolved to issue a consent to the continuation of the existing quarry operations on that land for a period of 20 years, subject to 39 conditions set out in the relevant Notice of Determination.

The endorsed date of this consent is 24 April 1997, and the conditions which are relevant to these proceedings, and to the preliminary point of law, are those numbered 30 to 34, concerning "section 94 contributions", which provide as follows:

"30. The applicant shall pay to Council a contribution, under section 94 of the Environmental Planning and Assessment Act [1979], at the rate shown in the table below, for all material transported from the quarry.

Location Contribution

$ per tonne

Bundarbo Road - Riverside Drive Intersection 0.060

MR381 - Albury Street intersection 0.836

MR78 - Harden/Young Shire Boundary 1.141

MR380 - Harden/Boorowa Boundary 1.924

Reason: For the upgrading and/or maintenance of the road network to meet the increased demand imposed by the development.

31. The contribution will be calculated and paid quarterly from the date on which the development consent becomes effective.

Reason: To ensure regular payment.

32. Evidence of the tonnage of all material leaving the quarry and its destination is to accompany the section 94 payment, so that the contribution can be verified.

Reason: To ensure accuracy of payment.

33. Documentation is to be submitted at the end of each financial year, in the form of a statutory declaration from the Company Auditor detailing the tonnage of all material removed from the quarry during the year and its destination, ie roads used.

Reason: To ensure compliance with this consent.

34. The contribution will be indexed and adjusted annually as from the date the consent became effective, in accordance with the Price Index of materials used in building other than house building [Cat No.6407.01], applicable to each year ending 30th June for the previous 12 months, for the duration of the consent.

Reason: To ensure that the payment reflects movement in the price index of

materials."

Only condition 30 is appealed against in these proceedings.

In letters dated 9 and 13 May 1997 (ie very shortly after the consent) Tegra foreshadowed to Council a request for a review of these conditions, and sought information regarding relevant roadworks expenditure.

On 30 May 1997, R L & J Bulmer, consultants acting on behalf of Tegra, wrote at length to Council seeking amendment of conditions 29, 30 and 34 submitting, in respect of condition 30, that the Council's contribution plan and the wording of the condition did not correctly apply the Department of Urban Affairs & Planning guidelines for s 94 contributions, nor the 1993 Court of Appeal decision in All Sands Pty Limited v Shoalhaven City Council 78 LGERA 435.

The Bulmer submission proposed that Council prepare a forward maintenance works programme for a period of say 5 years itemising the actual maintenance work Council proposed to carry out to the wearing surfaces of Bundarbo Road and other specified main roads, and, in that way, calculate the applicable s 94 contribution payable by the development for the use of those roads.

It was further submitted, in respect of condition 34, that indexation offended the principle that the s 94 contribution must relate to the actual costs incurred by the Council in providing the public service or public amenity or the cost of maintaining that service or amenity due to the effects of the development. The submission proposed that the condition be reworded so that the level paid by the development was reviewed periodically, taking into account actual Council expenditure over, for example, a 5 year period and proposed future maintenance works programmes for the next 5 year period.

Council entertained the Bulmer submission as an application for modification of the consent pursuant to s 102 of the EPAA, the only source of power for it to vary the consent in any way, and Council considered it at its meeting on 18 June 1997. Council identified an error in its calculation of the relevant length on Bundarbo Road, and agreed that condition 30 would be reworded as follows:

"30. The applicant shall pay to Council a contribution, under section 94 of the Environmental Planning and Assessment Act [1979], at the rate shown in the table below, for all material transported from the quarry.

Location Contribution

$ per tonne

Bundarbo Road/Riverside Drive Intersection 0.047

MR381 - Albury Street intersection 0.823

MR379 - Harden/Wombat 1.128

MR380 - Harden/Boorowa Boundary 1.911"

Bulmer wrote to Deacon Graham & James ("Deacons") in Canberra on 8 July 1997 indicating quite firmly that all elements of Council's attitude to s 94 contributions in this matter remain in serious dispute and that, failing a compromise in the negotiations with Council, Tegra intended to appeal to this Court regarding development conditions 30 and 34.Deacons wrote to Council on behalf of Tegra, on 11 July 1997. The letter concludes:

"We have advised our client that the condition [30] as it stands will not be upheld by the Land & Environment Court and that, if the Council is not prepared to modify the condition to properly reflect the impact on its roads which can really be attributed to quarry traffic, then it should appeal to the Court to have the condition reviewed".

This advice was tabled at a meeting of the parties on 15 July 1997, a written minute of which occurs at page 25 of Exhibit H1 in the following terms:

"It was reported that a meeting was held with representatives of Tegra on 15th July 1997 in respect of the development consent. He reported that they were not happy with the basis of the section 94 contributions. However at the end of the meeting it was decided by Tegra's representatives that they will meet 75% of the contribution from the day of consent to the first day it is due being the 24th July 1997. He further reported that both Tegra and Council will be seeking legal advice in respect of the section 94 contributions and share such information between both parties in an endeavour to resolve the matter.

It was also further reported that at the end of the day if Council stands by the section 94 contributions it will be up to Tegra to take the matter to Court. Council could review the section 94 plan and make an amendment if required or an [sic] mediator be called in to resolve the matter so as to alleviate the need for the matter to go to court. The time frame for the seeking of legal advice has been set at somewhere between two (2) and three (3) weeks."

This negotiated agreement on the mediation strategy envisaged that if that strategy failed there may be the need for the matter to be resolved by the Court. It was as a result of this agreement that Council sought advice from Abbott Tout, Solicitors, on 21 July 1997.

Abbott Tout wrote to Deacons on 13 August 1997 in response to Deacons letter to Council of 11 July 1997. On the same day, Tegra made a submission to Councillor Brown.

Council wrote on 14 August 1997 to Tegra regarding the "recent meeting" and suggesting that the lawyers confer again before another meeting was arranged.

Tegra wrote to Council on 14 October 1997 confirming that it was awaiting "independent advice regarding the application of Councils Section 94 Policy".

On 31 October 1997, Council wrote to Tegra saying that it had been advised that the target dates for s 94 contributions should still be met by developers:

"Your attention is drawn to conditions 30, 31 and 32 of your Development Consent, and also as modified by section 102 variations since" (see Tab 13 of Exhibit T1).

Deacons wrote on 3 November 1997 to Council to say that their consultant had been ill and a new consultant had been engaged.

On 12 January 1998, Council wrote to Tegra again regarding outstanding s 94 contributions.

Following review of the situation by a Council Committee, Council wrote to Tegra on 21 January 1998 requiring the appropriate payments and calculations within 7 days. Proceedings in this Court for breach of the development consent were foreshadowed.

On 10 February 1998 Tegra forwarded a reconciliation for s 94 contributions and said:

"As per our agreement, a 75% payment was made on 24 July 1997. Also enclosed is a reconciliation for the 3rd quarter of 1997, and a 50% payment for the same period ... `MADE UNDER PROTEST'....

Tegra will shortly be lodging a case with Council to have the Section 94 Contribution reviewed to reflect a commercially viable rate." (see Tab 18 of Exhibit T1).

The Council responded to Tegra on 17 February 1998 acknowledging payments and seeking a review of the calculations together with full payment of all moneys then due in accordance with the conditions:

"After full payment has been received, Council would then be in a position to examine any comments you may wish to make with regards to the Section 94 Plan". (See Tab 19 of Exhibit T1).

These Class 1 proceedings were commenced by Tegra on 18 March 1998.

On 7 April 1998 the Solicitor for the Council filed the Notice of Identification of Preliminary Point of Law and a Notice of Motion in respect of a notice to produce.

The hearing of both the preliminary point of law and the notice of motion were set down for 16 June, but the hearing dealt only with the preliminary point of law.

By letter dated 12 June 1998 (see pp 22-24 of Exhibit H1), Deacons admitted "for the purposes of the preliminary point of law that the total amount of extractive material taken from the site between the date of the development consent on 24 April 1997 and 30 April 1998 amounts to 141,149 tonnes".

3. SUBMISSIONS BY COUNCIL

Council submits that Tegra, despite its quarry's continued operation over many years, needed a development consent to carry on beyond 1995 (SEPP 37). Having accepted the benefit of such a consent, Tegra cannot now complain about the conditions imposed on it. Having extracted and sold 141,149 tonnes of material for profit, Tegra is subject to the application of one or more of the related principles of "election", "approbate/reprobate", "waiver" or "estoppel".

These principles are all usefully discussed and explained by the High Court of Australia in cases such as Lloyd & Ors v Robinson & Anor (1962) 107 CLR 142, Sargent v ASL Developments Limited (1974) 131 CLR 634 ("Sargent"), and Commonwealth of Australia v Verwayen (1990) 170 CLR 394.

It is worth quoting at some length from the two key judgements in Sargent.

Mason J said at page 655f:

"Any discussion of the principles governing the circumstances in which a party's words or conduct may preclude him from exercising a legal right which he possesses is beset with difficulties. They have their origin in the differences to be found in the various doctrines (election, waiver and estoppel) which may come into operation and in the differing concepts which each doctrine has at times been thought to embrace.

... .

A person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights, i.e. when he has the right to determine an estate or terminate a contract for breach of covenant or contract and the alternative right to insist on the continuation of the estate or the performance of the contract. It matters not whether the right to terminate the contract is conferred by the contract or arises at common law for fundamental breach - in each instance the alternative right to insist on performance creates a right of election.

Essential to the making of an election is communication to the party affected by words or conduct of the choice thereby made and it is accepted that once an election is made it cannot be retracted ... .

A person confronted with a choice between the exercise of alternative and inconsistent rights is not bound to elect at once... so long as the delay does not cause prejudice to the other side. An election takes place when the conduct of the party is such that it would be justifiable only if an election had been made one way or the other ... So, words or conduct which do not constitute the exercise of a right conferred by or under a contract and merely involve a recognition of the contract may not amount to an election to affirm the contract."

Stephen J said at 646:

"The words or conduct ordinarily required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other; thus for a lessor to continue to receive rent under a lease will be consistent only with his rights as lessor and inconsistent with the exercise of a right to determine the lease ... less unequivocal conduct, only providing some evidence of an election, may suffice if coupled with actual knowledge of the right of election ... There need be no expressed intention to elect, nor will an express disclaimer of such an intention be of any avail in preserving one right if in fact there be an exercise of another inconsistent right... For an election there need be no actual, subjective intention to elect ... an election is the effect which the law attributes to conduct justifiable only if such an election had been made ...

Many of the leading cases on the topic make no reference to detriment [to the other party as an ingredient in election] and, in speaking of the irrevocability of an election, seem to treat that as arising, regardless of whether or not the other party has acted upon it to his detriment, as soon as the fact of election is communicated to the other party ... or indeed regardless perhaps of communication."

Council relies primarily on the application of these principles in two particular cases in the planning context:

* In Bryson Industries Limited v Sydney City Council (1963) 8 LGRA 395 ("Bryson"), Hardie J dealt with a consent for alteration and use of a building for the storage of motor cars and other related purposes, subject to the condition that a deed be executed releasing the Council and Cumberland County Council from any claims for compensation that might be made against these bodies after the expiration of 15 years from the date of the deed.

Such a deed was executed in 1955. Representations seeking its cancellation were refused in 1959, and the appellant eventually appealed to the Land & Valuation Court against the condition requiring the execution of the deed. The appeal was brought under s 342N of the Local Government Act 1919 ("LGA") which imposed no time limits on appeals.

Hardie J held that the section conferred a right of appeal upon a person legally "dissatisfied" with a condition and that, upon the execution of the deed, the basis of the dissatisfaction disappeared and extinguished the right of appeal either because, at the relevant time, ie, the date of filing the notice of appeal, the appellant was not dissatisfied with the decision or, alternatively, the appellant was estopped from asserting any such dissatisfaction.

Hardie J said at 398:

"From the date of the communication on 18th January 1955 of the decision of the Council of 10th January until the decision of the appellant in October 1955 to execute the deed, I have no doubt that the appellant was in law and in fact dissatisfied with the Council's decision and could have appealed against it. However, when it handed over to the Council the duly executed deed bearing date 13th December 1955, the relationship of the appellant to the condition imposed by the Council changed materially. Having performed and satisfied the condition, the basis of the appellant's dissatisfaction disappeared... It matters not whether the correct principle to apply is one of estoppel in pais or election or some analogous doctrine such as the `approbate and reprobate' principle ... [As] from the date of the deed the appellant no longer was entitled to appeal against the condition imposed by the Council's decision of 10th December 1955 ..."

Further on page 399, Hardie J said:

"As from the date on which the work was completed, ie March 1957, it became impossible for this Court to adjudicate upon and determine the correctness of the decision of the council made in January, 1955. As from the date of such completion it became impossible for a reviewing tribunal to make an effective decision for the council in place of the one made more than two years earlier. Whether or not the execution of the deed disentitled the appellant to be classified as a person dissatisfied with the condition or effectively terminated the condition as an appealable one, I am quite satisfied that the execution of the deed and the carrying out of the work created a situation in which the appellant was deprived of any pre-existing right to ask for a review by this Court of the Council's decision".

The principle applied by Hardie J in Bryson has been recognised and applied in this Court on several occasions. See, for example, Progress and Securities Pty Limited v North Sydney Municipal Council (1988) 66 LGRA 236.

* In Waters & Anor v Hurstville City Council (1991) 77 LGRA 10 ("Waters"), Council granted a building approval to the applicants subject to conditions that an existing cottage be demolished and a bank guarantee lodged.

The Notice of Conditional Consent acquainted the applicants with their rights of appeal to the Court. The applicants lodged the guarantee, substantially commenced work under the approval, and appealed against the condition.

Bannon J held that their election to accept the benefit of the conditional building approval was inconsistent with the exercise of the right of appeal available to them and that they were not persons aggrieved by the Council's decision.

Bannon J relied on Hardie J's decision in Bryson, and also on the reliance upon it in an unreported 1997 decision of the Supreme Court of NSW in Reniro Pty Limited v North Sydney Municipal Council, ("Reniro") (see 77 LGRA at p12). In that case, Myers J quoted the following principle from Lissenden v CAV Bosch Limited [1940] AC 412 ("Lissenden"):

"If a person is entitled to one of two inconsistent rights and with full knowledge thereof, does an unequivocal act, indicating that he has chosen one, he cannot afterwards pursue the other".

Lissenden included a finding that "no person is taken to have made an election until he has had an opportunity of ascertaining his rights, and is aware of their nature and extent. Election in other words, being an equitable doctrine, is a question of intention based on knowledge".

In Waters, Bannon J also quoted and relied upon the above-quoted passage from the judgment of Stephen J in Sargent, and accepted that, as the applicants in Waters knew the facts giving rise to inconsistent legal rights, their own interpretation of those rights became irrelevant - their election to give the bond and commence substantial building was held to be consistent only with exercising their rights under the conditional approval given by Council; there was no need of an express intention to elect.

Mr Graham submits on Council's behalf that, in the present case, the applicant knew its right to appeal, but elected to go on for almost 12 months, taking advantage of the benefit of the approval without challenging the "burden" or "cost" of it. In this regard it does not matter that the contributions were paid under protest, as in this case, or as a commercial imperative, as in, eg, Pioneer Homes Pty Limited v Liverpool City Council, Unreported, Talbot J, 40074/92, 21 August 1992.

In addition, Mr Graham argues that, apart from any estoppel by earlier conduct, the applicant had obtained the benefit of a s 102 application which resulted in the modification, arguably a favourable modification, of condition 30. Tegra was in receipt of high powered legal advice at the time, and accepted implicitly the validity of the condition. It is, therefore, now estopped from denying it.

Council, in short, contends that Waters is the best parallel situation to the Tegra case and should be followed.

4. THE APPLICANT'S SUBMISSIONS

Mr McEwen SC submitted that s 97 neither expressly nor by implication evinces any intention that the right of appeal remains or continues only while the relevant consent is not acted upon.

It was only the requirements of SEPP 37 which took Tegra to the Council. The use for which consent was sought and obtained was the same use as had existed historically. As the annual output of the quarry was to remain approximately the same, the consent enabled the applicant to enjoy no benefit other than continued operation.

From as early as March 1996 until as late as August 1997, concern had been continually expressed regarding s 94 contributions, and Tegra continued to seek advice and assistance in resisting Council's requirements in this regard. Council's conditions have serious on-going financial implications for the company's operations.

The applicant always maintained that the imposition of the s 94 levies was contrary to the provisions of s 94 in that the continued operation of the quarry did not raise any "increase in demand" beyond that which had already been created prior to the consent.

Its only payments by way of s 94 contributions were made either pursuant to an agreement between the parties on a compromise basis pending the resolution of the challenge, or under protest.

In the heat of this continuing dispute, Council variously changed its position in regard to the actual s94 imposts.

Mr McEwen contends that the applicant at no stage "elected", in the Sargent sense. The possibility of a Court challenge remained "on the table" throughout the negotiations which were undertaken to avoid one.

Mr McEwen points out that the principle in Waters was not raised when Council's solicitors wrote at length to the applicant's solicitors on 13 August 1997. After refuting the contention that the 1994 contributions plan was fundamentally flawed, Mr Graham had pointed out that "It is, of course, quite open to your client to appeal to the Court under Section 97 if it desires in relation to the conditions of consent". (See p 1 of Tab 8 of Exhibit T1).

Mr McEwen seeks to distinguish Waters on the grounds that the applicant there sought an indulgence, and in so doing had acknowledged inconsistent rights.

He points out that Bryson was decided when there was no equivalent of ss 97 and 102. Council there had the benefit of the deed regarding the works it had consented to and Hardie J may well have taken a different view had the condition been challenged earlier.

For his part, Mr McEwen relies upon Parramatta City Council v Travenol Laboratories Pty Limited & Anor (1977-8) 35 LGRA 368 ("Travenol"), which involved consent to the erection of a factory, conditional upon certain roadworks.

The company constructed the building but did not carry out the roadworks. The Local Government Appeals Tribunal held that the company had not lost its right of appeal and upheld the appeal. In Council's appeal to the Administrative Law Division of the Supreme Court, Waddell J held that s 342N of the LGA did not contain an implied limitation requiring the right of appeal to be exercised before the decision of the Council had become the foundation of other legal rights and liabilities. The erection of the building was held to have been made lawful by the consent decision, irrespective of any appeal against a condition.

Waddell J also held, distinguishing Bryson, that the company had not ceased to be a person dissatisfied, that the company had not lost nor waived its right of appeal to the Tribunal, and that it had not become estopped by its conduct from asserting the right of appeal (Lissenden).

In fairness to Mr Graham, the Court should note at this point that Waddell J discussed at some length the judgment in Bryson (see pp 372-374), and commented:

"His Honour thus held that the appellant had lost its right of appeal on the grounds mentioned. So far as the ground that the appellant was not dissatisfied, within the meaning of the subsection, with the decision of the Council is concerned, it is to be observed that the appellant had complied with the condition against which it had appealed by entering into the deed required by the Council. However, in the present case the company had not satisfied the condition in question when it lodged the appeal. This seems to me to make all the difference. It leaves the question of whether or not the company was dissatisfied with the imposition of the condition to be determined on the agreed facts. In my opinion the Tribunal was at liberty to conclude, as it did, that the company was dissatisfied in the relevant sense."

(On this basis, Mr Graham contends that the company needs to satisfy the condition. Here the company accepted and complied, at least in part, with the condition, but did not satisfy the Council).

Mr McEwen, however, relies upon the following passage at the conclusion of Waddell J's judgment in Travenol (p 377):

"Of course, a council could prevent circumstances such as the present arising by insisting on performance of a condition in question, or upon the giving of security for performance. However, a council should not do so merely to force an applicant who is dissatisfied with a condition to forego his right of appeal. There must be many cases, where the imposition of a condition is all that is in contest between an applicant and a council, in which the proper and convenient course to follow would be to permit the development in question to proceed immediately and leave the justification for the condition to be determined later on appeal. To follow such a course would often prevent financial loss to the landowner, be in the public interest, and be a responsible exercise of local government powers."

Mr McEwen drew the Court's attention to some relevant decisions of this Court, in which Travenol was preferred to Bryson/Waters:

* In Rein Warry & Co v Wollondilly Council (10542 of 1993, 27 April 1994) ("Rein Warry"), Bignold J was dealing with a conditional consent for a three stage subdivision of land at Bargo.

Council argued that the applicant was not relevantly "dissatisfied with the determination", because it had accepted the benefit of the development consent by subdividing stages I and III, and selling some subdivided lots.

Council relied upon Waters, but Bignold J preferred Travenol, and found that the applicant was "dissatisfied" within the meaning of s97:

"In my judgment the fact that the disputed condition relates exclusively to Stage II of the approved subdivision and the fact that the subdivision of Stage II is discrete from the subdivision of Stages I and III and the fact that Stage II has not yet been implemented (pending the outcome of the present Class 1 proceedings) leads me to conclude that the Applicant is relevantly dissatisfied with the Council's determination to impose Condition 12 on the grant of development consent. The same facts also lead me to conclude that the cases relied upon by the Council are distinguishable on the facts".

He held that no case had been made out that the applicant was estopped from asserting its dissatisfaction with the decision to impose the condition, nor had waived its right of appeal under s 97(1), nor had elected to act upon the development consent and thereby denied itself the inconsistent right to pursue its appeal.

Bignold J said:

"... [It] cannot be said of the Applicant in the present case, that by implementing Stages I and III of the approved subdivision and by contemporaneously appealing against Condition 12 relevant solely to Stage II of the approved subdivision, it has thereby elected between two inconsistent legal rights ... In truth no such inconsistent rights are presented by the combined operation of ss93 and 97 of the EP&A Act. This is a further point of distinction from Waters which did not involve the EP&A Act (or provisions of the Local Government Act 1919 having any similar effect to s93 of the EP&A Act)."

* In Lindisfarne Anglican School v Tweed Shire Council, (10377 of 1997, 27 February 1998) ("Lindisfarne"), Bignold J again applied the principles he espoused in Rein Warry.

* In Narayanasamy v Concord Council (00054 of 1994, Talbot J, 24 February 1995) ("Narayanasamy"), Council granted a conditional consent to a subdivision. When the linen plan was lodged with the Council it was accompanied by a request to modify three conditions.

Council rejected the modifications sought, and withheld the linen plan because certain works had not been completed, and the s 94 contribution remained outstanding.

Talbot J said that the proper course originally open to the applicant was an appeal pursuant to s 97, but he had taken no steps to institute such an appeal within 12 months following the determination and had "procrastinated beyond the time which the Court considers to be reasonable, without justification".Talbot J continued:

"If the applicant feels that there is a continuing rationale for modifying the condition in regard to the access handle after considering the whole of these reasons, then it remains open for him to lodge a further s 102 application. That is a more appropriate course".

* In Minaway v Rockdale City Council (10894 of 1995, 26 April 1996) Pearlman J dealt with a preliminary point of law in circumstances where the development had been completed and the condition appealed against required the payment of moneys which had in fact been paid.

The applicant wanted an adjustment of the contributions but paid an amount under protest. After the Council had called up a bank guarantee, the applicant made the application to the Council under s 102 to vary the condition requiring the payment.

Council claimed that the applicant was not a person "dissatisfied" (within the analogous provision in EPAA s 102(5)) and that the condition had been perfected by the payment of the moneys when the bank guarantee was drawn down and the building was completed. The applicant neither exercised his right of appeal under

s 97, nor made an application under s 102, before the condition was perfected, but

Pearlman J held that the Court could entertain the appeal.

5. CONCLUSION

Mr Graham urged the Court to follow Bryson and Waters, and to distinguish the cases on which Mr McEwen relied, on the bases that Rein Warry and Lindisfarne involved staged developments, Talbot J's comments in Narayanasamy were obiter, and the extempore judgment of Pearlman J in Minaway does not show on its face that the Chief Judge was referred to either Bryson or Waters.

However, I believe that the line of authority following Travenol is to be preferred.

The legislative environment in which matters of consent and conditions are now dealt with has changed since Hardie J laid down the principles he stated in Bryson, and the principles espoused by Waddell J in Travenol have now found favour in contemporary times with three current Judges of this Court.

As Bignold J observed in Rein Warry:

"It would, in my opinion, be a very inconvenient result if a developer who was dissatisfied with a condition of development consent and had appealed against the imposition of that condition, was unable to act upon that consent until that appeal had been determined by the Court..."

In this case the condition was only ever partially complied with. The company clearly indicated its objections to the condition and made persistent efforts to have it deleted or altered.

In spite of the fact that it continued its operations it did not really "elect" at any stage to follow a course of action inconsistent with its right to appeal.

In answering the question posed I, therefore, conclude that the company should properly be regarded as "dissatisfied".

I therefore formally answer the question as follows:

Question

Whether the applicant is an applicant who is dissatisfied with the determination of a consent authority within the meaning of Section 97 of the Environmental Planning & Assessment Act 1979.

Answer

Yes.

The hearing should now proceed upon the basis of the answer to the question, and I grant leave to the parties to approach the Registrar to obtain a date for the resumed hearing.

I make no order as to costs.

The exhibits may be returned.