Waters Meeting Pty Ltd v Northern Midlands Council
[2012] TASSC 74
•30 October 2012
[2012] TASSC 74
COURT: SUPREME COURT OF TASMANIA
CITATION: Waters Meeting Pty Ltd v Northern Midlands Council [2012] TASSC 74
PARTIES: WATERS MEETING PTY LTD
v
NORTHERN MIDLANDS COUNCIL
FILE NO/S: 275/2012
DELIVERED ON: 30 October 2012
DELIVERED AT: Hobart
HEARING DATE: 29 October 2012
JUDGMENT OF: Evans J
CATCHWORDS:
Environment and Planning – Building control – Council consent and approval – Consents, approvals and permits – Conditions – General principles – Construing a condition in a permit.
Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876; (2008) 162 LGERA 322; Quarry Products (Newcastle) Pty Limited and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57; Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189, referred to.
Aust Dig Environment and Planning [318]
REPRESENTATION:
Counsel:
Appellant: D R Armstrong
Respondent: K J Stanton
Solicitors:
Appellant: Don Armstrong
Respondent: Shields Heritage
Judgment Number: [2012] TASSC 74
Number of paragraphs: 21
Serial No 74/2012
File No 275/2012
WATERS MEETING PTY LTD v NORTHERN MIDLANDS COUNCIL
REASONS FOR JUDGMENT EVANS J
30 October 2012
The outcome of these proceedings turns upon the meaning to be attributed to an exception in planning permit, P09-198, for the subdivision of land at 37 Seccombe Street, Perth, into 33 lots. Condition one of the permit authorises the subdivision:
"… with the exception of lots 7, 8, 9, 10, 11, 12, which are to be shown as a single block until such time as water can be supplied by Ben Lomond Water to the blocks".
Ben Lomond Water can now supply water to lots 7 – 12. The applicant contends that this being so, the exception contained in condition one no longer applies and, consistent with the permit, the Northern Midlands Council is obliged to seal a final plan of subdivision the applicant has lodged for lots 7, 8, 9 and 10. The Council disputes this and has refused to seal the final plan.
The Council's position is as detailed in an email from its General Manager to the applicant's solicitor dated 3 April 2012, which is relevantly as follows:
" … I advise that the Northern Midlands Council resolved not to seal the final plan of subdivision on the ground that condition one of the planning permit had not been adequately addressed.
Council believes that the endorsement required by Ben Lomond Water, such that it cannot guarantee the water supply for lots 7, 8, 9, 10, 11 and 12 will meet the Water Services Association of Australia (WSAA) WSA03-2002 Code Domestic Desirable Minimum Service Pressure (SP) Limits (200kPa – 20m) at all times, is inconsistent with the intent of condition one of the planning permit."
Before turning to the construction of condition one, I will briefly refer to some of the background to this dispute.
The planning permit under consideration was issued on 20 November 2009. It has since been corrected and amended but these alterations are of no relevance to condition one. Proposed lots 7, 8, 9, 10, 11 and 12 are singled out in the permit as they are wholly or partially above the RL 175m contour on the subdivision plan and were apparently then unable to be served by gravity from extensions to the existing reticulation system. The permit relevantly provides:
"Northern Midlands Planning Scheme 1995
Planning Permit P09-198
In accordance with Division 2 of the Land Use and Planning Approvals Act 1993, the Northern Midlands Council (Planning Authority) hereby grants a permit for –
ADDRESS OF LAND:
37 SECCOMBE STREET, PERTH … … …
THIS PERMIT ALLOWS FOR:
The land at 37 Seccombe Street, Perth to be developed and used for a subdivision (5-lots into 33 lots) & shed demolition in accordance with application P09- 198, and subject to the following conditions:
1 Layout not altered
The use and development shall be generally in accordance with the endorsed plan numbered P1, with the exception of lots 7, 8, 9, 10, 11, 12, which are to be shown as a single block until such time as water can be supplied by Ben Lomond Water to the blocks.…
14.2 Availability of reticulated water supply
à Lots above RL 175m AHD
Lots sited fully above the RL 175m contour are currently unable to be served by gravity from extensions to the existing reticulation system.
It should be noted that no long term strategy for providing reticulated water to land above RL 175m AHD has been adopted by Ben Lomond Water.à Lots below RL 175m AHD
In order to provide an adequate water supply to proposed lots within the subdivision sited below the 175m AHD contour, the developer is to:
àConstruct a 150mm diameter main to link the subdivision offtake to the existing 150mm dia water main in Mulgrave Street.
àConstruct a 100mm diameter main along Seccombe Street from the subdivision offtake to the boundary of proposed lots 18 and 19. This water main is to connect to the proposed 100mm dia water main in the new cul-de-sac via an easement or public footway minimum of 3 metres wide from the end of the cul-de-sac to Seccombe Street.
àAny easements which contain water mains are to be a minimum of 3 meters wide, be located clear of driveways, structures and the like.
…
14.5 Water supply and services
i)In addition to other requirements of this consent, developer is to design and construct internal water mains of min 100mm diameter over the length of the proposed frontages, including all necessary stop valves and fire plugs.
ii) …
iii) …
iv)The provision of a water connection with a stop tap and meter box at the boundary of each lot of sufficient capacity to supply each lot with a minimum flow rate of 0.48 litres per second. The minimum nominal diameter of connection shall be 20 mm. Services to be located 0.5m minimum clear of driveways and be square to the boundary.
v)Any public open space that is required to have a water service shall be provided with an approved meter as well as the service, stop tap and meter box.
vi) .. ."
On 2 September 2011, Ben Lomond Water issued a conditional development certificate of consent to the subdivision that included the following provisions:
"2 AVAILABILITY OF RETICULATED WATER SUPPLY
Lots fully or partially above RL 175m AHD
Advisory Note:
Lots 7, 8, 9, 10, 11, and 12 are partially or fully above the above RL 175m AHD. Hydraulic Modelling indicates the water supply system may not meet minimum the Service Pressure for these lots at all times.
Ben Lomond Water has not adopted a long term strategy for providing reticulated water to land above RL 175m AHD in Perth at this stage.
The District Officer (South Esk) Tasmania Fire Service Northern Region has advised (15/6/2011) the amended Fire Plug locations shown in the Bullock Consulting Plan No 09.401 FP1 (Stage 2) meets the Tasmanian Fire Service Requirements and '… will provide adequate coverage of the proposed subdivision within the specified 120m arc …)
Condition
The Developer shall identify on the 'Approval page' of the Final Plan of Survey for the subdivision, in accordance with Section 85(5) of the Local Government (Building & Miscellaneous Provisions) Act 1993, as follows:
'Ben Lomond Water cannot currently guarantee the water supply for Lots 7, 8, 9, 10, 11, and 12 will meet the Water Services Association of Australia (WSAA) WSA03-2002 Code Domestic Desirable Minimum Service Pressure (SP) Limits (200kPa -20m) at all times'
…
5 WATER SUPPLY AND SERVICES
(i) In addition to other requirements of this consent, developer is to design and construct internal water mains of min 100mm diameter over the length of the proposed frontages, including all necessary stop valves and fire plugs.
(ii) …
(iii) …
(i) The provisions of a water connection with a stop tap and meter box at the boundary of each lot of sufficient capacity to supply each lot with a minimum flow rate of 0.48 litres per second. The minimum nominal diameter of connection shall be 20 mm. Services to be located 0.5m minimum clear of driveways and be square to the boundary.
(ii) Any public open space that is required to have a water service shall be provided with an approved meter as well as the service, stop tap and meter box.
(iii) … ".
The third paragraph of cl 2 of the above conditional certificate records the District Fire Officer's advice that the fire plug locations would provide adequate coverage. It seems that advice was in part based on a hydrant flow test conducted near lot 10 on 22 December 2010, the results of which are that it met the requirements of AS 2419.1-2005, Table 2.2.
On 14 November 2011, the Council was told by its Works and Infrastructure Manager that he lived in the lower lying part of Perth and had a 32mm water connection. On normal days he would use two sprinklers on his property, but on warmer days he only had enough water pressure to use one sprinkler because the water pressure was so reduced, and he queried what would happen in the higher lying areas of Perth during those periods. Lots 7 – 12 in the proposed subdivision are in a higher area.
On 18 January 2012, application was made to the Council to seal a final plan of subdivision in relation to lots 7, 8, 9 and 10 as well as lot 35.
On 14 February 2012, Ben Lomond Water issued a certificate of consent for the registration of that plan in which it says: "All conditions related to this permit [P09-198] have been completed to Ben Lomond Water's standard ... ". Clauses 5(i), (i) and (ii) (second appearing) in Ben Lomond Water's conditional certificate replicate conditions 14.5(i), (iv), (v) in the planning permit. It can be inferred from Ben Lomond Water's certification that all permit conditions have been completed, and that the requirements contained in permit conditions 14.5(i), (iv) and (v) have been satisfied. One of these requirements was that there be a water connection with a sufficient capacity to supply each lot with a minimum flow rate of 0.48 litres per second.
On 28 February 2012 the Council's lawyer, Mr S B McElwaine, advised the Council that it was clear from the information that had been provided to him that Ben Lomond Water could supply water to lots 7, 8, 9, 10, 11 and 12 of the subdivision within the meaning of condition one of the permit, which contains no reservation about the degree of pressure. He advised that as the condition had been complied with the Council may seal the final plan of subdivision, assuming that all other conditions had been satisfactorily addressed.
It seems that some members of the Council did not like Mr McElwaine's advice. In consequence, efforts were made on behalf of the Council to get Ben Lomond Water to resile from its consent to the registration of the subdivision plan. In response to communications from the Council, Ben Lomond Water wrote a letter to the Council on 6 March 2012 in which it acknowledged that the water pressure for lots above RL 175 (lots 7, 8, 9, 10, 11 and 12) remained substandard but added that, notwithstanding this, the development had been approved on the basis that adequate water pressure was not available to those lots.
By letter dated 9 March 2012, the Council wrote to Ben Lomond Water seeking confirmation that its letter of 6 March 2012 was not intended to override or withdraw its consent of 14 February 2012 to the registration of the final plan.
By letter dated 15 March 2012, Ben Lomond Water provided the Council with that confirmation and added:
"Ben Lomond Water cannot currently guarantee the water supply for Lots 7, 8, 9, 10, 11, and 12 will meet the Water Services Association of Australia (WSAA) WSA03-2002 Code Domestic Desirable Minimum Service Pressure (SP) Limits (200kPa – 20m) at all times and requires this endorsement of the Plan of Survey."
This requirement had been spelt out in the last two paragraphs of cl 2 of Ben Lomond Water's conditional certificate dated 2 September 2011, which is set out in par[6] above.
On 19 March 2012 the Council rejected a motion that the final plan of subdivision be sealed. The explanation for the Council's refusal to seal the plan is contained in the email set out in par[3] above. In substance the Council has read condition one of the permit as if it contains a requirement that the supply of water to the blocks in question be of a particular pressure. When the email is read in conjunction with condition one it can be seen that the effect of the Council's approach is to construe the condition as if it reads "… with the exception of lots 7, 8, 9, 10, 11, 12, which are to be shown as a single block until such time as water can be supplied by Ben Lomond Water to the blocks", and that supply meets "the Water Services Association of Australia (WSAA) WSA03-2002 Code Domestic Desirable Minimum Service Pressure (SP) Limits (200kPa -20m) at all times".
The first mention of the Water Services Association of Australia Code with regard to desirable minimum service pressure limits in any documentation with regard to the subdivision is contained in the last paragraph of cl 2 in Ben Lomond Water's conditional certificate dated 2 September 2011. That certificate was issued not far short of two years after the permit in question. There is no justification whatsoever for now purporting to discern an intent in condition one that is derived from the after the event requirement of Ben Lomond Water that the developer identify on the final plan of survey that Ben Lomond Water cannot guarantee that the pressure of the water supplied to the specified blocks will at all times meet a particular pressure limit contained in the Water Services Association of Australia Code.
Moreover, generally, when construing a permit, the development application, plans and other documents accompanying it can only be looked at if they are incorporated in the permit expressly or by necessary implication, and where it is necessary for the purposes of interpreting the permit. Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876; (2008) 162 LGERA 322, Biscoe J at pars[389] – [397]. See also Quarry Products (Newcastle) Pty Limited and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57, pars[51] – [89], and Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189, pars[45] – [47]. It is not suggested by Mr Stanton, on behalf the Council, that the requirement it seeks to impose based on the Water Services Association of Australia Code can be found in the permit, or any document that can be incorporated into it expressly or by necessary implication.
The only provisions in the permit that bear on the construction of condition one are conditions 14.2 and 14.5. Condition 14.2 notes that the lots in contention are "currently unable to be served by gravity from extensions to the existing reticulation system" and that Ben Lomond Water had no long-term strategy for providing reticulated water to land above RL 175m AHD. Condition 14.5 contains requirements as to the diameter of water mains and connections, the capacity of the water connection to supply each lot with a minimum flow rate of 0.48 litres per second, and the location of stop taps and meter boxes. These requirements do not impose a condition with regard to pressure. From the Council's stand point, the most advantageous construction that can be given to condition one, when read in conjunction with conditions 14.2 and 14.5(iv), is a requirement that Ben Lomond Water be able to supply water to the blocks by gravity at a minimum flow rate of 0.48 litres per second. Consistent with Ben Lomond Water's certificate of 14 February 2012, I find that this requirement was satisfied.
In his written and oral submissions on behalf of the Council, Mr Stanton advanced two constructions of condition one that differ from that which was in fact adopted by the Council. In advancing each construction, Mr Stanton, quite rightly, contended that the meaning of the permit is to be determined objectively and the inquiry as to meaning is as to the meaning the terms have to a reasonable person. See Oakden v Port Adelaide (supra) par[43]. However, Mr Stanton progressed from this sound basis to advocate constructions of the condition that impose a more onerous requirement for the supply of water to the lots in question than that which can be found in the provisions of the permit referable to them. Moreover, his constructions would impose more onerous requirements for the supply of water to the lots in question than those contained in the permit for lots below the RL175 level. In support of his constructions, Mr Stanton referred to general provisions of the Northern Midlands Planning Scheme 1995, portions of a report prepared by Hunter Water Australia for the Council dated 10 June 2009, and titled the North Perth Water Supply Servicing Strategy, and the Local Government (Building and Miscellaneous Provisions) Act 1993, s83(7)(a). Even if it was appropriate to refer to all or any of this material in construing condition one, I am not able to find in it anything that warrants construing the condition as imposing a more onerous requirement for the supply of water than that set out in par[18] above.
That the Council misconstrued condition one does not inevitably justify a finding that this error of itself amounts to an error of law. No satisfactory test of universal application has yet been formulated for determining whether an error of construction is a question of fact or a question of law; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394. That decision at 396 explains that past endeavours to draw a distinction between the meaning applied to words in a document (a question of fact) and the construction or effect of the words (a question of law) are artificial, if not illusory. In this case it is not necessary to embark on a consideration of the distinction between a question of fact and a question of law in this context as it is beyond question that it is an error of law for the Council to have concluded that the condition had not been satisfied when the only conclusion open on the facts in the light of the condition as properly construed is that it had been satisfied. As to this being an error of law see: Young v Tasmanian Contracting Services Pty Ltd [2012] TASFC 1 at pars[2] and [11] – [15]; Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354 at pars[28] and [75] – [78]; Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7 and Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 213. So whilst the Council's error in its construction of the condition may or may not be an error of law, it is clear that as a result of that error the Council failed to appreciate that, on the facts before it, the only conclusion open to it was that the condition had been satisfied. This failure is an error of law. In consequence, pursuant to the Judicial Review Act 2000, ss17(2)(f) and 27(1)(a), the applicant is entitled to the primary relief it seeks, that is, to have the decision of the Council quashed. Similarly, as a consequence of the Council's erroneous construction of the condition, it is highly likely that I would find in favour of the applicant on two other grounds for quashing the decision, they being that the Council has taken into account irrelevant considerations and that its decision is so unreasonable that no reasonable person could have so exercised its power. It is not however necessary for me to take these grounds any further.
On behalf of the Council it is conceded that if I conclude, as I have, that I should quash the decision, I should proceed to make the consequential order sought by the applicant. This is an order that the Council be directed to cause its seal to be affixed to the final plan of subdivision and cause the plan to be lodged in the office of the Recorder of Titles. I so order.
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