Land and Environment Court New South Wales

• Medium Neutral Citation: Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138
• Hearing dates: 12 August 2013
• Decision date: 12 August 2013
• Jurisdiction: Class 1
• Before: Preston CJ

Decision

1.  The appeal is allowed.

2.  The decision and orders of Commissioner Brown made on 7 May 2013 are set aside.

3.  The matter is remitted to Commissioner Brown for determination in accordance with the decision of the Court.

• Catchwords: APPEAL - appeal against Commissioner's decision on a question of law - refusal of development application concerning proposed construction and use of two buildings for takeaway food premises and associated works - development with frontage to classified road - whether Commissioner erred in construing the relevant criteria governing approval of development on land with frontage to a classified road - "where practicable, vehicular access to the land is provided by a road other than a classified road" - Commissioner did not err in finding in that vehicular access be provided by a road other than the classified road, but did err in construing the requirement that such vehicular access be "where practicable" - whether it was fair and reasonable for an order for costs to be made in favour of appellant - not fair and reasonable to make costs order - appeal allowed - matter remitted
• Legislation Cited: Land and Environment Court Act 1979 s 56A; Land and Environment Court Rules 2007 r 3.7; State Environmental Planning Policy (Infrastructure) 2007 cl 101(1), (2)
• Texts Cited: Macquarie Dictionary, 2nd ed (rev) (1987)
• Category: Principal judgment
• Parties: Modern Motels Pty Limited (Appellant); Fairfield City Council (Respondent)
• Representation: Mr P J McEwen SC (Appellant); Mr A J Seton (Solicitor) (Respondent); Anthony Parisi Solicitors (Appellant); Marsdens Law Group (Respondent)
• File Number(s): 10364 of 2013
• Publication restriction: No

Judgment

An appeal against a Commissioner's decision

1 The appellant appeals against the decision of a Commissioner of the Court dismissing its appeal against the refusal of its development application to the respondent. The appellant's development application proposed the construction and use of two buildings for takeaway food premises (a Red Rooster and a Souvlaki Hut) and associated parking and drive-through facilities on an L-shaped parcel of land known as 161-167 Hume Highway, Lansvale.

2 The land has a 20 metre frontage to the Hume Highway and around 97 metres frontage to Chadderton Street. The land surrounds a service station on the corner of the Hume Highway and Chadderton Street.

3 The proposed development provided for vehicular access to the land from both the Hume Highway and Chadderton Street. The vehicular access from the Hume Highway would be indirect in that it would be via the adjoining service station. Vehicular access would be by an existing driveway on the service station from the Hume Highway and then over a right-of-way running in a northerly direction parallel to the western boundary of the service station land. Vehicles would be able to both enter and exit the land, although at different points, from the right-of-way over the service station land.

4 Vehicular access to the land from Chadderton Street would be both direct and indirect. Direct access from Chadderton Street would be by a new two-way driveway to be constructed at the northern end of the land. Indirect access from Chadderton Street would be from an existing driveway on the service station land closer to the corner of Chadderton Street and the Hume Highway, and then along a driveway running in a westerly direction parallel to the northern boundary of the service station land.

5 On the appeal, Fairfield City Council ('the Council') contended that the Court, exercising the functions of the consent authority, could not grant consent to the proposed development because it could not be satisfied of the preconditions in cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007 ('the Infrastructure SEPP') which applied to the proposed development as the Hume Highway is a classified road.

Clause 101 provided:

(1) The objectives of this clause are:

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable, vehicular access to the land is provided by a road other than a classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

6 The Commissioner agreed with the Council, holding that he was not satisfied as to the precondition in cl 101(2)(a) and hence could not grant consent to the proposed development. The Commissioner therefore refused the appellant's development application and dismissed its appeal.

The grounds of appeal

7 The appellant appealed under s 56A(1) of the Land and Environment Court Act 1979 ('the Court Act') against the Commissioner's orders and decision on questions of law. Six grounds of appeal were raised, each being different ways in which the appellant contends the Commissioner erred in law in interpreting cl 101(2).

8 Ground 1 contended that the Commissioner erred in his interpretation of the nature, meaning and effect of the Infrastructure SEPP as it applied to the proceedings. Ground 2 contended that the Commissioner erred in holding, in [20] of his reasons, that "cl 101(2)(a) means that consent must not be granted if the Court is satisfied that practicable vehicular access is available to the site from a road other than the Hume Highway". Ground 3 contended that the Commissioner erred in holding, in [24] of his reasons, that cl 101(2)(b) and (c) "do not come into play unless there is no practicable access to a site except from a classified road (subcl (a))". Ground 4 contended that the Commissioner erred in holding that access must be denied from the classified road of the Hume Highway. This referenced [27] of the Commissioner's reasons that "As the development cannot function in the form before the Court, if access is denied from the Hume Highway, then the development application must be refused and the appeal dismissed." Grounds 5 and 6 contended that the Commissioner erred in holding, in [26] of his reasons, firstly that "any reliance on the adjoining service station to support vehicular access to the site from Hume Highway is misplaced" and, secondly, that "the service station is an existing use".

The appellant's submissions

9 The appellant submitted that the Commissioner's construction, encapsulated particularly in [20] of his reasons, was a gloss on the plain words of cl 101(2)(a). The appellant submitted that the clause only requires access to be provided by a road other than a classified road (here the Hume Highway); not that it be the deduced or inferred "only means of access". To in effect read the word "only" into the clause is an unwarranted gloss. The appellant submitted that the deduced or inferred intrusion of the word "only" into cl 101(2)(a) led the Commissioner to conclude, in [28] of his reasons, that the proposed development "must not have vehicular access from the Hume Highway". The appellant submitted that it was a misreading of the requirements of cl 101(2) to conclude, as the Commissioner did, that the "road other than the classified road" be the only access.

10 Rather, the appellant submitted, the clause simply requires a consent authority to enquire and be satisfied that, "where practicable", access is available otherwise (but not exclusively) than by the classified road. The words simply require provision of access, where practicable, via a non-classified road, in combination with or in addition to the classified road. For the clause to work as a bar to access to the classified road, words to that effect are needed, but they do not appear in cl 101(2). Rather, there is power to consent (to access to a classified road) where the land can provide access also from a non-classified road.

11 The appellant submitted that the Commissioner erred in holding that the matters in cl 101(2)(b) and (c) do not come into play unless the matter in cl 101(2)(a) is satisfied. The appellant submitted that the matters in sub cll (a), (b) and (c) are conjunctive and the consent authority must be satisfied of each of the three matters; none of the three matters is stated to be more or less important than the other two.

The respondent's submissions

12 The Council submitted that the Commissioner did not err in his interpretation of cl 101(2). The Council contended that no implied importation of any word or words into the clause is required to conclude, as the Commissioner did, that vehicular access to a development having frontage to a classified road cannot be from the road if, as a matter of fact, it is practicable to provide access from another road.

13 The Council submitted that the way in which cl 101(2) is framed, by use of the word "unless it is satisfied", requires a satisfaction of a particular matter before a consent authority has power to grant consent. The particular matter in cl 101(2)(a) is that vehicular access to the land is provided by a road "other than" the classified road if it is determined that it is practicable to provide that access. The Council submitted that by giving the words "other than" their ordinary meaning, cl 101(2)(a) must be taken to be read as "where practicable, vehicular access to the land is provided by a road that is not the classified road".

14 The Council submitted that the appellant's construction, that cl 101(2)(a) does not require that access be exclusively provided by a road that is not the classified road, involves substituting the words "other than" with the words "in addition to" or similar, or importing the word "also" into cl 101(2)(a) such that the clause would read "vehicular access to the land is also provided by a road other than the classified road".

15 The Council submitted that by taking a literal approach in the interpretation of cl 101(2)(a) and giving the words in the clause their ordinary meaning, there is no need to import the word "only" or the word "also" into the clause. The requirement that, where practicable, vehicular access to the land be provided by a road "other than" the classified road means that access cannot be provided via the classified road.

16 The Council submitted that, upon a finding of fact by the consent authority that it is practicable to provide access to the land by a road that is not the classified road, that access is to be provided by that other road, and not by the classified road.

17 The Council submitted that this construction is consistent with the first objective of cl 101 "to ensure that new development does not compromise the effective and ongoing operation and function of classified roads" (cl 101(1)(a)). Such an objective would clearly be achieved by vehicular access to development on land that has frontage to a classified road being provided by a road that is not the classified road.

18 The Council accepted that the first objective of cl 101(1) and cl 101(2)(a) itself do not preclude vehicular access from a classified road. Such access could be provided where it is not practicable to provide access by a road that is not the classified road. Such a result is contemplated by the operation of cl 101(2)(b)(i) and (iii). If the consent authority is satisfied that it is not practicable to provide access to development on land that has frontage to a classified road that is not the classified road, it is then necessary for the consent authority to be satisfied as to the matters in cl 101(2)(b) and (c). Consent may then only be granted to development which has access from a classified road if the consent authority is satisfied as to those matters, subject to a merit assessment of the development application.

Commissioner's construction partly correct and partly in error

19 In my view, the Commissioner did not err in construing cl 101(2)(a) as requiring in this case that vehicular access be provided by Chadderton Road, being a road other than the classified road of Hume Highway, but he did err in his construction of the requirement that such vehicular access be "where practicable". To this extent, the Commissioner erred on a question of law.

Correct construction concerning vehicular access

20 Clause 101 applies to development that has a frontage to a classified road. Its concern is twofold: first, the impact the proposed development may have on the operation and function of the classified road (cl 101(1)(a) and cl 101(2)(a) and (b)) and, secondly, the impact of traffic noise and vehicle emissions from the classified road on the proposed development (cl 101(1)(b) and cl 101(2)(c)). This case involves the first concern. Although the construction of cl 101(2)(a) contended for by the appellant is arguable, I consider the Council's construction is the correct one.

21 Clause 101(2)(a) has two components: first, the desired outcome ("vehicular access to the land is provided by a road other than the classified road") and, secondly, an acceptance that the achievement of that desired outcome is only "where practicable". In my view, the desired outcome is to be interpreted as meaning that vehicular access to the land is not to be provided by the classified road but instead by a road other than the classified road. There are a number of indications in the text and context of cl 101 for this construction.

22 First, the words "other than" in cl 101(2)(a) operate to exclude the classified road as the road from which vehicular access to the land is to be provided. The phrase "other than" means "different in nature or kind": Macquarie Dictionary, 2nd ed (rev) (1987). In the context of cl 101(2)(a), it signifies a road different from the classified road. The roads - the classified road to which the land has frontage and a road other than that classified road - are mutually exclusive.

23 If vehicular access to the land is provided wholly from the classified road to which the land has frontage, evidently the desired outcome in cl 101(2)(a) cannot be achieved - vehicular access to the land is not provided by a different road to the classified road.

24 Equally, however, if vehicular access to the land is provided partly by the classified road and partly by a road other than the classified road, the desired outcome in cl 101(2)(a) would still not be achieved - part of the vehicular access to the land is provided by the classified road and hence that part of the vehicular access is not provided by a road "other than" the classified road. This conclusion is not affected by the part of the vehicular access to the land that is provided by a road other than the classified road. That part of the vehicular access to the land provided by the other road does achieve the desired outcome. But it does not alter the fact that the part of the vehicular access to the land provided by the classified road does not achieve the desired outcome of being by a road other than the classified road.

25 The expression "vehicular access to the land" in cl 101(2)(a) is to be understood as encompassing all of the vehicular access to the land. Hence, all of the vehicular access to the land must achieve the desired outcome of being provided by a road other than the classified road.

26 Secondly, this construction of cl 101(2)(a) promotes the first objective in cl 101(1). Provision of vehicular access to land that has a frontage to a classified road by a road other than the classified road will "ensure that new development [on the land] does not compromise the effective and ongoing operation and function" of the classified road. However, if vehicular access to the land is provided by the classified road, such vehicular access might impact on the effective and ongoing operation and function of the classified road. Hence, the appellant's construction of cl 101(2)(a) does not promote the first objective of cl 101(1) "to ensure" that the new development "does not compromise the effective and ongoing operation and function of classified roads".

27 The other two matters in cl 101(2) are not contrary indications. It is true, as the appellant submitted, that the three matters in cl 101(2) are

conjunctive such that the consent authority needs to be satisfied of each of them.

28 The matter in cl 101(2)(c) is concerned with the impact of the classified road on the development, not the other way round, and hence is not relevant to the issue of construction of cl 101(2)(a).

29 The matter in cl 101(2)(b), however, is concerned with the impact of the development on the classified road. Clause 101(2)(b)(i) and particularly (iii) do envisage that vehicular access to the land is provided, at least in part, by the classified road. The appellant submitted that this supported its construction of cl 101(2)(a) that vehicular access by the classified road is permitted provided vehicular access is provided also by a road other than the classified road. The appellant submitted that if cl 101(2)(a) did not permit any vehicular access to the land to be provided by the classified road, then cl 101(2)(b) would have no work to do - there would be no vehicles using the classified road to gain access to the land and hence no occasion to consider, amongst other things, the nature, volume or frequency of vehicles using the classified road to gain access to the land (sub para (iii)).

30 However, construing cl 101(2)(a) as setting the desired outcome that vehicular access to the land be provided by a road other than the classified road does not necessarily mean that cl 101(2)(b) never has any work to do. The desired outcome in cl 101(2)(a) is to be achieved only "where practicable". In the individual circumstances of a particular development on particular land with frontage to a classified road, achieving vehicular access to the land by road other than the classified road may not be practicable. In this event, vehicular access to the land can be provided by the classified road, whether partly by a road other than a classified road, or wholly by the classified road. The considerations in cl 101(2)(b) would then be applicable.

31 Secondly, and in any event, the matters in cl 101(2)(b) may still be relevant even if there is no vehicular access to the land provided by the classified road. The matter in sub para (i) (the design of the vehicular access to the land) may be still be relevant. Even if vehicular access to the land is provided by a road other than the classified road, the design of the vehicular access may be such that it would adversely affect the safety, efficiency and ongoing operation of the classified road. For example, it may be located sufficiently proximate to the corner of that road with the classified road as to cause an adverse effect on the classified road, or it may cause queuing or delay up that road and into the classified road.

32 Sub paragraph (ii) is concerned with the air pollution impacts of the development on the safety, efficiency and ongoing operation of the classified road. These matters may apply regardless of whether vehicular access is provided by the classified road.

33 Even sub para (iii) may still apply where there is no direct vehicular access to the land by the classified road, but rather by a road other than a classified road, and where vehicles still need to use the classified road to gain access to the land. The nature, extent and other features of the development may affect the nature, volume or frequency of vehicles using the classified road to gain access to the land. It may be, for example, a significant traffic generating development that might adversely affect the safety, efficiency and ongoing operation of the classified road.

34 Accordingly, the matters in cl 101(2)(b) are not indications contrary to the construction of cl 101(2)(a) that vehicular access is to be provided by a road other than a classified road.

35 The consequence of this conclusion is that the Commissioner did not err in construing cl 101(2)(a) as requiring vehicle access to the land to be provided by Chadderton Street and not by the Hume Highway.

Erroneous construction concerning practicability

36 However, this construction only deals with that part of cl 101(2)(b) addressing the desired outcome; it does not address that part of the clause concerning whether the desired outcome is practicable. The Commissioner either did not ask himself the question of whether the outcome of providing all vehicular access by Chadderton Street was practicable or misdirected himself as to the question of practicability under cl 101(2)(a). Either way involved an error of law.

37 In [22] of his reasons, the Commissioner stated that "[t]he question of whether Chadderton Street is practicable, in terms of access, does not arise..." This suggests that the Commissioner did not address the question, required by cl 101(2)(a), of whether provision of vehicular access to the land by Chadderton Street was practicable.

38 However, elsewhere in his reasons for judgment, the Commissioner seems to address the question of practicability, but in ways different to what cl 101(2)(a) requires. The Commissioner repeatedly used the expression "practicable vehicular access" and framed, in various ways, the test under cl 101(2)(a) using this expression. So, in [13], the Commissioner summarised what he said was the Council's submission as being "that cl 101(2)(a) provides that the Court must not grant consent as the Court cannot be satisfied that the development does not have practicable vehicular access to the site by a road other than the Hume Highway."

39 In [20], the Commissioner stated: "Put simply, cl 101(2)(a) means that consent must not be granted if the Court is satisfied that practicable vehicular access is available to the site from a road other than the Hume Highway."

40 In [24], the Commissioner stated that the matters in cl 101(2)(a), (b) and (c) "do not come into play unless there is no practicable access to a site except from a classified road (sub clause (a))".

41 In [16], the Commissioner paraphrased cl 101(2)(a) differently again, substituting "practical" for "practicable".

42 None of these statements correctly asked the question required by cl 101(2)(a). The phrase "where practicable" regulates the desired outcome ("vehicular access to the land is provided by a road other than the classified road"). The consent authority is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome will be achieved, where that desired outcome is practicable. That is to say, the practicability is as to the outcome of providing vehicular access to the land by a road other than the classified road.

43 The Commissioner, on the other hand, applied a different test, substituting for the phrase "where practicable" that governs achievement of the desired outcome the adjectival phrase "practicable vehicular access" that describes the kind of access. This is a different and narrower test than that of "where practicable" in cl 101(2)(a). To fix as the criterion of satisfaction that there be "no practicable access to a site except from a classified road is to fix a different and more demanding criterion than that required by cl 101(2)(a) that "where practicable, vehicular access to the land is provided by a road other than the classified road".

44 The Commissioner never asked himself the correct question of practicability required by cl 101(2)(a).

45 The Council submitted that, notwithstanding the Commissioner's infelicitous language, including saying that the question of whether Chadderton Street is practicable, in terms of access, did not arise, the Commissioner nevertheless did address the question of practicability. The Commissioner made findings of fact in paras 21 and 22 of his reasons for judgment that:

The site has a frontage of 96.715 to Chadderton Street.

Chadderton Street is a sealed, kerbed and guttered dedicated road with sufficient width to provide access to the site as well as the other industrial properties in this street.

The proposed development seeks access to this street [Chadderton Street].

Other developments in Chadderton Street appear to have vehicular access consistent with what would be expected in a light industrial area.

46 However, these factual findings were made in the context of the Commissioner either stating that the question of practicability did not arise, or if it did, by applying the wrong test concerning practicability. The Commissioner has not made findings of fact addressing the correct question of practicability under cl 101(2)(a). Furthermore, as the appellant submitted, consideration of the correct test of practicability under cl 101(2)(a) might include addressing the particular development on the particular land, and not considering the road other than the classified road and the vehicular access to the land by that road in isolation from the particular development for which vehicular access is needed.

47 In these circumstances, the Commissioner has erred on a question of law. The appropriate course is for the Commissioner's decision and orders to be set aside and the matter remitted for consideration in accordance with the reasons of the Court.

Costs of the appeal

48 In relation to the question of costs, the appellant submitted that it would be fair and reasonable in the circumstances for there to be an order in favour of it to the extent of half of its costs of the appeal. An appeal under s 56A of the Court Act is in the same class as the proceedings the subject of the appeal. In this case, the proceedings were in class 1, and hence the s 56A appeal against the decision and orders of the Commissioner was also in Class 1. As a consequence, r 3.7 of the Land and Environment Court Rules 2007 applies. This rule provides that the Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

49 The appellant submitted that one of the circumstances in which the Court might consider the making of a costs order to be fair and reasonable is that the proceedings involved, as a central issue, a question of law. Since an appeal under s 56A of the Court Act is only on a question of law, this circumstance applies.

50 The Council contended that the proper order, in the exercise of the Court's discretion, is not to make an order for costs. The Council proffered three reasons. First, the appeal succeeded in part only. The appellant was not successful in its principal submission that the Commissioner erred in construing that part of cl 101(2)(a) that sets the desired outcome. Rather, the appellant has succeeded only on the Commissioner's failure to address or erroneously addressing that part of cl 101(2)(a) concerning "where practicable". Secondly, the Council submitted that the appellant's success on the "where practicable" component of cl 101(2)(a) was not squarely raised by it in its six grounds of appeal; rather those grounds of appeal concerned the other component of cl 101(2)(a) concerning the desired outcome. Thirdly, the Council submitted that the question of law concerned the construction of the Infrastructure SEPP. The question of construction was novel and had not been previously considered by the Court.

51 The appellant responded to the Council's submissions. First, the appellant acknowledged that it had succeeded on a component of cl 101(2)(a) which was not central to its grounds of appeal. It submitted, however, that this justifies there being a partial order for costs rather than no order to costs. The appellant submitted that the fact that the question of law considered the construction of a State Environmental Planning Policy rather than any other form of environmental planning instrument, and that it may not have previously been the subject of judicial decision, were not grounds to not make an order for costs.

52 The matter is finely balanced. I consider that in all of the circumstances, it would not be fair and reasonable to make an order for costs. I consider there is force in the first two of the Council's submissions. The error of law upon which the appellant has succeeded was not central to its appeal. The six grounds for the appeal which I summarised earlier in these reasons for judgment, did not concern the component of cl 101(2)(a) of "where practicable", but rather the component of the desired outcome. The large part of the parties' written and oral submissions concerned the component of the desired outcome and not the component of "where practicable".

53 In these circumstances I consider that it would not be fair and reasonable to make an order as to the whole or any part of the costs.

Orders

54 Accordingly, the Court makes the following orders:

(1) The appeal is allowed.

(2) The decision and orders of Commissioner Brown made on 7 May 2013 are set aside.

(3) The matter is remitted to Commissioner Brown for determination in accordance with the decision of the Court.

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Decision last updated: 21 August 2013