Land and Environment Court New South Wales

• Medium Neutral Citation: Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184
• Hearing dates: 13 - 16 May 2013
• Decision date: 31 October 2013
• Jurisdiction: Class 1
• Before: Pain J

Decision

(1) The order issued under s 121B of the Environmental Planning and Assessment Act 1979 dated 3 August 2012 by Woollahra Municipal Council to the Community Association is revoked.

(2) Costs are reserved.

• Catchwords: APPEAL - appeal against order issued under s 121B of EPA Act requiring completion of condition of development consent by construction of stairs on private harbour foreshore land to enable public access - collateral challenge to validity of development consent conditions not statue barred under s 101 - development consent conditions do not comply with s 80A(1) of EPA Act and the second and third Newbury tests - s 121B order revoked
• Legislation Cited: Community Land Development Act 1989 s 39; Conveyancing Act 1919 s 88B; Environmental Planning and Assessment Act 1979 s 4, s 35, s 79C, s 80A, s 94, s 94B, s 94EA, s 96, s 101, s 121B, s 121ZK; Interpretation Act 1987 s 21; Land Acquisition (Just Terms Compensation) Act 1991 s 4; Real Property Act 1900 s 42; Woollahra Local Environmental Plan 1995 cl 2, cl 8, cl 15, cl 26, cl 27, cl 36
• Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1; Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382; Cavassini Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456; City of Canada Bay Council v F & D Bonaccorso Pty Ltd [2007] NSWCA 351; (2007) 71 NSWLR 424; Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; (2008) 158 LGERA 429; Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41; Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313; (2003) 132 LGERA 225; McGregor v Bathurst City Council [1995] NSWLEC 71; Meriton Apartments Pty Ltd v Council of the City of Sydney [2011] NSWCA 17; (2011) 80 NSWLR 156; Newbury District Council v Secretary of State for the Environment [1981] AC 578; Parramatta City Council v Peterson (1987) 61 LGRA 286; Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554; R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598; Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2; (2010) 171 LGERA 286; Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347; Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321; Stockland (Constructors) Pty Limited v Shellharbour Council [1996] NSWLEC 123; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
• Category: Principal judgment
• Parties: Community Association DP 270253 (Appellant); Woollahra Municipal Council (Respondent)
• Representation: Mr P Tomasetti SC with Mr M Fraser (Appellant); Mr P Rigg (solicitor) (Respondent); Baron & Associates (Appellant); Norton Rose (Respondent)
• File Number(s): 10890 of 2012

Judgment

Appeal against s 121B order issued under the EPA Act

1 Woollahra Municipal Council (the Council) issued an order to the Community Association DP 270253 (the Community Association) dated 3 August 2012 under s 121B of the Environmental Planning and Assessment Act 1979 (the EPA Act) requiring compliance with a condition of development consent imposed by the Council in 2001 (the order). The condition was imposed when approving the residential development of a large area known as the Babworth Estate in Darling Point.

2 The Community Association appeals against the terms of the order, as enabled by s 121ZK of the EPA Act. The order issued under item 16 to the table to Part 6 Div 2A s 121B of the EPA Act required completion of a development consent condition by 12 months and 1 week from the date of the order.

3 Section 121ZK provides:

121ZK Appeals concerning orders

(1) A person on whom an order is served may appeal against the order to the Court.

...

(4) On hearing an appeal, the Court may:

(a) revoke the order, or

(b) modify the order, or

(c) substitute for the order any other order that the person who gave the order could have made, or

(d) find that the order is sufficiently complied with, or

(e) make such order with respect to compliance with the order as the Court thinks fit, or

(f) make any other order with respect to the order as the Court thinks fit.

4 The Community Association's counsel asked the Court to find that the order has been sufficiently complied with (subsection (d)) or to revoke the order (subsection (a)).

5 Woollahra Local Environmental Plan 1995 (the LEP) was amended in June 1999 by Amendment No 15 to rezone Babworth House and surrounds from hospital use to residential and open space uses. The Babworth House Development Control Plan (the Babworth DCP) was adopted on 15 June 1999 and took effect from November 1999. A copy is attachment A to this judgment and shows the area of open space zoning labelled "L".

6 Kimberley Securities Ltd (Kimberley Securities) was the applicant in development application DA 712/2000 which proposed the restoration of a property known as Babworth House and the redevelopment of its extensive grounds. The development included five apartments within Babworth House, the construction of nine new dwellings in the grounds of that property, adaption of garage into residence, restoration of the estate's gardens, 53 parking spaces and associated development. The development is known as the Babworth Estate. The Council granted consent to DA 712/2000 on 5 February 2001 subject to conditions (the 2001 consent). Notice of the Determination of Consent was published in a local newspaper on 14 February 2001. The Community Association was constituted in 2001 under the Community Land Development Act 1989.

7 The Babworth Estate was developed and then sold after 5 February 2001 by Kimberley Securities to the Community Association and to individual landowners over time pursuant to the provisions of the Community Land Development Act. Mr and Mrs Litver purchased lot 17 in 2008.

Terms of order

8 The order served on the Community Association required:

1. To complete the pedestrian access (stairway) to the foreshore along the southern side of the "finger of land" between Eastbourne Road and the land within Council's foreshore building line, in accordance with the location and design of approved DA Masterplan Layout Plan 00023-0112 (Issue B) dated 10 January 2001 and Construction Certificate drawing Masterplan Layout Level 1 - Drawing No. 20381 approved on 23 August 2001.

9 The land and stairway described in the order as "the pedestrian access (stairway) to the foreshore along the southern side of the 'finger of land' " refers to the area "J" sheet 1 of DP 270253.

10 The Council issued a number of notices of intention to issue an order under s 121B in various forms during 2009-2011. It is unnecessary to set these out.

11 A view of the land the subject of the order and adjoining land and house owned by Mr and Mrs Litver was undertaken in the presence of the parties.

Evidence

12 The Community Association tendered three volumes of material (exhibit A), one volume of which was the contract of sale (volume 2), and a supplementary bundle of documents (exhibit B). The Community Association also tendered its statement of facts and contentions (exhibit C) and a landscape plan dated 21 July 2000 for DA no 712/00 (exhibit D). The Council tendered a DA plan dated 11 January 2001 for DA no 712/00 and construction certificate plan dated 4 May 2001 (exhibit 1), the statement of facts and contentions in reply (exhibit 2), construction certificate plans dated 26 May 2008 for construction certificate no 20381/14.1, interim occupation certificates (exhibit 3) and photographs that were shown to Mr Litver in cross-examination (exhibit 4).

Planning history

13 There is a complicated planning and development history to consider which is usefully set out in a statement of facts provided by the Community Association and in its written submissions. The occurrence of these events is not in dispute.

Registration of the Community Association DP 270253

14 The Community Association DP 270253 was first constituted by registration with the Land and Property Management Authority (LPMA) of DP 270253 on 7 June 2001.

15 Such registration initially consisted of lot 1 being community property, and three other lots namely lots 2, 3 and 4.

16 Lot 2 comprised a building of heritage significance known as Babworth House and its immediate curtilage.

17 Lot 2 was wholly surrounded in an irregular shape by part of lot 1. Lot 1 is community property created pursuant to and as defined in the Community Land Development Act. Lot 1 also extended to other areas of the Babworth Estate in an irregular and non-contiguous parcel of land.

18 As the estate was developed by Kimberley Securities, lots 3 and 4 were re-subdivided and developed with detached dwelling houses. The Community Association DP 270253 now consists of:

(a) Lot 1 (community property),

(b) Lot 2 (Babworth House which itself is subdivided into 5 lots in SP70612 which was registered on 19 August 2003), and

(c) 2 further lots containing detached dwelling houses (within the former grounds of Babworth House).

19 Upon registration of DP 270253 on 7 June 2001 there was lodged with LPMA:

(a) the plans for DP 270253,

(b) a s 88B Instrument (under the Conveyancing Act 1919) and

(c) a Community Management Statement.

Each of these documents was executed on behalf of the Council by a Woollahra Council officer, Mr Craig Jenner (signature "C Jenner").

20 The s 88B Instrument (referred to above) created a covenant giving full and free right to all members of the public over that part of lot 1 marked "J" in the plan lodged with the s 88B Instrument.

21 The deposited plan lodged on 7 June 2001 comprised six sheets of plans that together showed four lots. Each of sheets 1 and 3 showed the land which was burdened by the covenant and referred to as area "J". A copy of sheet 3 of DP 270253 is attached to this judgment and marked B.

22 The terms of the covenant in the s 88B Instrument referred to the owner of the lot burdened (lot 1) in the following terms:

The owner of the lot burdened covenants and agrees with Woollahra Municipal Council to permit full and free right to all members of the public over so much of the lot burdened and marked "J" in the plan as is zoned Local Open Space Reservation, to go pass and repass on foot without animals or vehicles between the hours of sunrise and sunset in order to gain access to the harbour foreshore of Double Bay.

23 The area of land marked "J" in the plans registered on 7 June 2001 is denoted as "positive covenant".

Conditions of development consent of DA no 712/2000 (imposed 5 February 2001)

24 Condition 1 of the 2001 consent required the development to be carried out in accordance with plans numbered:

...

000 23 - 0112 (Issue B) Dated 10/1/01 as drawn by Conybeare Morrison and Partners

and on which there is a Council stamp, "Approved DA Plans" and a signature of a Council officer, except where amended by the following conditions.

25 Other conditions imposed in the 2001 consent relevant to these proceedings are:

Condition 29 Foreshore Access

The applicant is to provide suitable pedestrian access (stairway) to the foreshore along the southern side of the "finger of land" between Eastbourne Road and the land within Councils foreshore building line in accordance with Council's S 94 plan and Woollahra LEP 95. The design of the stairway is to be to the satisfaction of Council's technical Services Division and Council's Urban Design Team Leader (prior discussions with the Technical Services Division and Councils Urban Design Team Leader will be necessary). Details are to be provided to Council prior to the issue of the Construction Certificate. Public access to the foreshore is to be available between sunrise and sunset and at other times such access is to be locked.

30 Public Positive Covenant

A public positive covenant shall be created over the land zoned Local Open Space Reservation. Evidence as to the creation of the public positive covenant shall be provided to Council or the PCA prior to the issue of the Occupation Certificate. This condition is imposed so as to provide a legal right for the public to access the site in order to gain access to the foreshore.

53 Foreshore Access Width

The plans are to be amended so as to incorporate a 2 m wide access corridor along the southern boundary of the site between Eastbourne Road and the foreshore building line. No residential development is to occur within this area. Details are to be provided to Council or the PCA prior to the issue of the Construction Certificate. This condition is imposed so as to prevent residential development on land zoned Local Open Space Reservation.

59 Section 94 Contribution

Pursuant to section 94 of the Environmental Planning and Assessment Act 1979, a monetary contribution of $100,934 towards the provision of public open space, recreation facilities and streetscape improvements must be paid to Council prior to the issue of a Construction Certificate.

This condition is imposed under the Woollahra Municipal Council Section 94 Contributions Plan. The Plan may be inspected at Council's Offices.

Various lots are given exclusive use of parts of the community property lot 1

26 The Community Association has from time to time varied the Management Statement for the Community Association DP 270253 so as to grant exclusive use to proprietors of individual lots in DP 270253 of parts of lot 1, the community property.

27 The parts of lot 1 which have been the subject of the grant of exclusive use have been registered pursuant to s 39 of the Community Land Development Act by registration of amendments to the Management Statement with the Registrar-General.

28 On 26 July 2005 an amendment of the Management Statement was registered as dealing number AB657496X. Amendment AB657496X included granting the exclusive use of a rectangular parcel of lot 1 DP 270253 described as "AREA 'J' 283 METRES SQUARED". By this amendment to the Management Statement exclusive use of area "J" as defined was granted to lot 17 in DP 270253.

29 That there are two areas referred to as "J", one in the Management Statement registered on 26 July 2005 and one in the s 88B Instrument registered on 7 June 2001, is a coincidence.

Compliance with conditions of 2001 consent

30 On 1 August 2001 in compliance with condition 59 of the 2001 consent Kimberley Securities paid the Council $100,934 in s 94 contributions. This was required to be paid prior to the issue of a construction certificate.

31 On 23 August 2001 a construction certificate was issued by City Plan Services Pty Ltd for the development approved in the 2001 consent. Development works on the Babworth Estate were commenced by Kimberley Securities.

Stair built in 2005

32 Kimberley Securities constructed a stairway along the axe-handle part of lot 1 adjacent to lots 16 and 17 in DP 270253. The stairway travels from the boundary of lot 1 with Eastbourne Road to a point near the foreshore of Double Bay. The work of construction of the stairway was completed prior to Mr and Mrs Litver's purchase of lot 17 in 2008. The parties told the Court the stairs were constructed in about 2005.

33 No development occurred upon the land at the eastern side of the property which was zoned Local Open Space Reservation. A gate was constructed at the western end of the stairs adjacent to the cul-de-sac of Eastbourne Road. It remained generally closed for security and privacy reasons and then later was locked until events leading up to the commencement of this litigation.

Modification of 2001 consent in 2005

34 On 21 November 2005 the Council issued a Notice of Determination of an application under s 96 of the EPA Act for modification of the 2001 consent. The proposed modifications were described in the Notice of Determination as being "... alterations to internal, forecourt & entry layout & lift access for buildings B6 and B7 including new lift/inclinator along southern boundary".

35 Paragraph 2 of the Notice of Determination stated that "the following conditions be added to the consent:"

176. Deletion of public access gate

The gate at the top of the public access stair to the foreshore along the southern side of the "finger of land" between Eastbourne Road and the land within Council's foreshore building line shall to be deleted so as the Double Bay foreshore is accessible by the public at all times. The plans submitted with the Construction Certificate application are to be noted accordingly. This condition has been imposed to achieve the objectives of the Environmental Planning and Assessment Act 1979, relevant EPI including, specifically, clause 2(2)(h)(vii) of Woollahra Local Environmental Plan 1995.

36 Paragraph 3 of the Notice of Determination stated that the last sentence of condition 29 (above in par 25) be modified and an extra sentence be added, to read:

... Public access to the foreshore is to be available at all times.

This condition has been imposed to achieve the objectives of the Environmental Planning and Assessment Act 1979, relevant EPI including, specifically, clause 2(2)(h)(vii) of Woollahra Local Environmental Plan 1995.

Survey advice on effect of positive covenant "J" DP 270253

37 On 20 June 2006, a subdivision of lot 9 in DP 270253 was registered by the LPMA creating lots 16 and 17 in DP 270253. The plans consisted of four sheets.

38 On 8 February 2006 Max Braid Surveyors Pty Limited (MBS) provided a survey opinion to Kimberley Securities "re extent of positive easement "J" DP 270253". The MBS facsimile advice of 8 February 2006 states:

The covenant burdens the 'Community Land' shown as Lot 1 or PT1 on the plan DP270253 more particularly that part of the land being a strip 2 metres wide along that part of the southern boundary located between Eastbourne Road and the Mean High Water Mark (MHWM) at Double Bay. The positive covenant is defined in Document 1 of DP270253 and effectively allows public access over the land 'J' from Eastbourne Road to the waterfront of Double Bay between sunrise and sunset. The extent of Lot 1 effected is approximately 105 metres squared being the 2 metre wide strip referred to above.

Lot 17 purchased by Mr and Mrs Litver

39 The Litvers became registered proprietors of lot 17 DP 270253 on 2 July 2008. Lot 17 is west of and adjacent to the exclusive use area created on 5 July 2005 under the Management Statement.

40 Mr and Mrs Litver conducted enquiries prior to purchasing lot 17 including obtaining a survey report. The Litvers sought advice from the surveyors in relation to the "extent of positive covenant shown as "J" in DP 270253". The surveyor, Mr Meehan of Survey 21, advised on 23 April 2008 that:

... The covenant ... burdens the 'Community Land' shown as Lot 1 or PT1 on the plan DP 270253 more particularly that part of the land being a strip of land 2 metres wide along part of the southern boundary of the land in the plan, located between Eastbourne Road to the west and the Mean High Water Mark (MHWM) at Double Bay to the east...

41 Mr and Mrs Litver engaged solicitors to act on their behalf in respect of the purchase of lot 17 DP 270253. The solicitors advised the Litvers that they were entitled to the exclusive use of the land to the east of lot 17 which has direct water frontage to Double Bay, being the land as referred to under the heading above "Various lots are given exclusive use of parts of the community property lot 1".

42 Mr and Mrs Litver are not party to these proceedings. The land described in the order as being "land within Council's foreshore building line" refers to that part of lot 1 DP 270253 over which lot 17 in DP 270253 (the Litvers' property) enjoys exclusive use. Coincidentally the exclusive use area is also area "J".

43 The affidavits of Mr Litver, dated 6 April 2013 and Mrs Litver dated 14 April 2013, the registered proprietors of 27 Eastbourne Road, Darling Point, were read. The Litvers purchased lot 17 in 2008. The evidence of Mr Litver is that they bought lot 17 in 2008 understanding that the requirement of condition 29 and 30 was that the existing stairs satisfied the development consent conditions. Mr Litver outlines his security concerns. He is concerned for the safety of his wife and four children. Mr Litver believes that their house is more susceptible to theft if the gate is unlocked. His wife has said to him several times after the gate has been unlocked that she does not feel safe in the house. Mr Litver was cross-examined but it is unnecessary to set this out.

44 Mrs Litver also details her security concerns. Shortly after their family had moved in she was in the kitchen with the lower and upper level doors open when a stranger who had jumped the gate confronted her. Around 2009 when Mrs Litver was in the kitchen a stranger walked down the stairs and into the family room. During 2009 Mrs Litver was in the pool with her daughters when she heard men yelling and swearing on the stairs with slurred speech as if intoxicated. When the men noticed that they were in the pool they started yelling at Mrs Litver and her children. Around August 2009 at approximately 1 am Mrs Litver heard voices and running up and down the stairs. The next morning Mrs Litver inspected the stairs and observed what appeared to be vomit and a liquid that smelt like urine, photographs of which were annexed to the affidavit. On Sunday 30 August 2009 Mrs Litver noticed the sensor light turn on. The next morning Mrs Litver found an old t-shirt on the stairs and used syringes in the brushwood fence. Photographs of the syringes were annexed to the affidavit. On Monday 14 September 2009 during the morning Mrs Litver discovered another syringe in the garden along the stairs near the level 3 entrance to their home. Late in 2011 when Mrs Litver was pregnant and was having a nap at around midday she woke up to see two teenagers standing on the stairs at her bedroom window staring at her. Since moving into the property Mrs Litver has often removed dog faeces from the stairs. Mrs Litver does not feel safe so she keeps all the doors locked and the air conditioning on. Mrs Litver is very concerned that the security issues will be compounded if the stairs are accessed more frequently.

Environmental Planning and Assessment Act 1979

45 Section 80A(1) of the EPA Act provides:

80A Imposition of conditions

(1) Conditions-generally

A condition of development consent may be imposed if:

(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

...

(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

...

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or ...

Applicable planning instruments

Woollahra Local Environmental Plan 2005

46 Clause 2 of the Woollahra LEP contains the aims and objectives of the LEP.

2 The aims and objectives of this plan

(1) The aims of this plan are:

...

(g) to conserve the environmental heritage of the area of Woollahra,

...

(2) The objectives of this plan are:

(a) in relation to residential development:

(i) to promote the development of land to which this plan applies as a comprehensively planned residential community providing recreational, commercial, retail and community facilities of a type which are appropriate to meet the needs of the population to be accommodated,

...

(e) in relation to public and private open space, recreation and tourism:

(i) to provide for open space which will meet the requirements of the population and which will be developed in sympathy with the existing natural environment of the area of Woollahra,

(ii) to protect and promote public access in the inter-tidal zone of the foreshore of Sydney Harbour,

(iii) to provide for a diversity of open space types and recreation opportunities,

(iv) to allow for contributions towards the provision and embellishment of public open space and recreational facilities, and

...

(f) in relation to the landscape:

...

(ii) to promote the retention of trees and the planting of suitable new trees in appropriate locations,

(iii) to control or minimise the impact of future development upon natural features such as significant trees or stands of trees, ridgelines or land within view of any waterway,

(iv) to protect and enhance the environmental quality of the area of Woollahra through the appropriate management and conservation of the existing pattern of vegetation, and

(g) in relation to heritage conservation:

(i) to identify heritage items and heritage conservation areas and to provide measures for their conservation, protection and enhancement,

(ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas,

...

(v) to provide for the detailed control of development associated with or in proximity to heritage items and heritage conservation areas,

...

(h) in relation to the area's foreshores and the harbour foreshore scenic protection area:

...

(vii) to preserve existing public open spaces along the foreshores and to promote the dedication, acquisition, lease or occupation of additional useable areas so as to provide further public pedestrian access to and along the foreshores in appropriate locations, and

...

47 Clauses 8 and 15 of the LEP provide:

8 Development control tables

(1) The following development control tables set out the zones applying to the land to which this plan applies.

(2) Each development control table identifies the manner in which a zone is shown on the land use map, describes the zone, states the objectives of the zone, identifies development which may be carried out without or only with the consent of the Council, identifies development which is prohibited and makes reference to related provisions.

...

(4) The development control table for each zone must be read subject to the special provisions and heritage provisions in Parts 3 and 4 of this plan, respectively. In the event of an inconsistency between a provision of a development control table relating to a zone and a special provision or a heritage provision in Part 3 and 4 of this plan, the special provision or heritage provision shall prevail.

(5) The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development.

15 Acquisition of land reserved for open space

(1) This clause applies to land within Zone No 6:

(a) edged red and marked with the letter "L" in red signifying land reserved for local open space, or

(b) edged red and marked with the letter "R" in red signifying land reserved for regional open space.

(2) The owner of any land referred to in subclause (1) may, by notice in writing, require:

(a) in the case of land referred to in subclause (1) (a), the Council, or

(b) in the case of land referred to in subclause (1) (b), the Corporation,

to acquire the land.

(3) On receipt of a notice under this clause, the Council or the Corporation, as the case may be, must acquire the land unless the land is required to be dedicated for public open space.

48 Clause 27 of the LEP provides:

27 Development in the vicinity of heritage items, heritage item groups, heritage conservation areas, archaeological sites or potential archaeological sites

The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage item group, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity.

Woollahra Local Environmental Plan 1995 Amendment No 15

49 Woollahra LEP 1995 Amendment No 15 was made on 24 June 1999. Amendment No 15 rezoned Babworth Estate from Special Uses 5 (Hospital) to Residential 2(b) and Open Space 6 (General Recreation). The Open Space zone applied to a 12 m deep section on the waterfront at Double Bay at the east end of the "finger" of land. This coincides with the Council's foreshore building line.

50 Part of the land rezoned 6 Open Space Reservation was reserved for Local Open Space as shown edged red and marked with the letter "L" in red signifying land reserved for local open space on the Land Use Map (p 201 exhibit A vol 1).

51 In the development control table concerning the 2(b) zone, item 2 describes the zone as:

The Residential "B" Zone applies to areas characterised by existing medium density residential flat buildings and areas where potential has been identified for increased medium density residential development. Floor space and height controls, contained in Part 3, set the maximum permissible density and building heights for new development. Site area and frontage controls, also contained in Part 3, specify minimum site requirements for new development.

52 The objectives of the 2(b) zone set out in item 3 relevantly include:

...

(d) to improve access to and along the Sydney Harbour foreshore where opportunities arise, and

(e) to protect the environmental attributes of the foreshore lands.

53 The development control table for zone 6 item 3 states the objectives of the zone including:

...

(d) to enable development for the purpose of public and private recreation and community facilities sympathetic to the environmental characteristics of the land and surrounding areas, and ...

Babworth House Development Control Plan

54 On 8 March 1999, the Urban Planning Committee held a meeting which discussed the draft Woollahra LEP 1995 Amendment No 15 and the draft Babworth House DCP. The rezoning of the foreshore part of the site to Open Space 6 was discussed. Mr Bluett, Manager Strategic Planning, is recorded in the meeting report as follows:

... concerns regarding privacy and security are important to recognise and address in context. However, I do not consider that they should be the determining factors in either deleting or continuing with the proposed zone. There are measures which can be introduced to protect privacy and security. For instance the accessway can be closed to public use at night-time and suitable boundary fencing can be introduced. It is recommended that these measures be included in the future design of the open space area...Reservation of the land for public open space and implementation of public access at a later date once the land is able to be connected to other public foreshore open space is not an option which should be supported. This option effectively isolates the land from public use for an unknown time. As mentioned above continuity with other public open space is not considered to be a requirement for obtaining foreshore open space...The Heritage Office comments that subdivision of the site which results in its current boundaries being diminished should be avoided. If the Open Space 6 zone was applied consideration would need to be given to the manner in which the land could be secured for public use. One option is to dedicate the area to Council through the creation of a separate lot. Such action would result in a minor yet significant change to the site's boundaries. If the historical configuration of the site is to be retained an option which can be used is to have the area of the proposed foreshore open space, including its accessway, identified as common property in a Community Title subdivision, so that it is not allocated to one user, and apply a public positive covenant to enable public access. The management statement for the Community Title subdivision, which would need Council approval, could contain rules and conditions regarding access, maintenance and hours of use. This option is recommended (Recommendation H). In summary I recommend that the proposed Open Space 6 zone be retained in the draft LEP. (Recommendation B also covers this issue as it endorses the draft LEP without deletion of the Open Space 6 zone). A minor amendment is proposed in the draft DCP to acknowledge the potential significance of the foreshore land as public open space (Recommendation DCP 10(a)) (F1: 91-92).

55 Recommendation H of the Urban Planning Committee to the Council stated:

THAT in regard to the proposed Open Space 6 zone in draft Woollahra LEP 1995 (Amendment No. 15):

(a) the design of the open space area is to incorporate boundary fencing of a suitable height, form and detail to provide privacy and security for the adjoining properties;

(b) the Council indicates its intentions to negotiate a public positive covenant for the area of land to be zoned as Open Space 6 prior to a development consent being issued. (added by handwriting) that the public positive covenant include a requirement that any proposal to release, vary or modify the covenant include a public consultation process;

(c) the Council indicate its intention to enter into a management agreement with the owners of the Babworth House site prior to a development consent being issued with the agreement to include but be not limited to, rules and conditions regarding access, maintenance and hours of use of the open space.

56 The Council adopted a Development Control Plan for Babworth House, on 15 June 1999 effective from 19 November 1999 (the DCP) reflecting recommendation H. One of the stated planning principles of the DCP in Pt 3.1 P 11, is to allow for public pedestrian access to the foreshore. The DCP also contains Pt 5 Design Criteria which includes performance criteria including PC 3 "opportunities for public access to and along the foreshore" and PC 4 "where and how public access is to be provided to and along the Harbour foreshore area". The DCP also contains PC 5 concerning access and mobility which states "Public access is provided (and may be off-set against any s 94 contribution), both physically and legally between Eastbourne Road and the foreshore, and along the foreshore. Council acknowledges that due to the steepness of the terrain in this area, access for the mobility impaired may not be achievable". The DCP contains a conceptual layout plan Figure 8 which shows the "finger" of land the subject of the order.

57 The DCP contained Pt 5.6 Landscape, open space in which there was provision made for private open space and communal open space:

Land within Lot E on the foreshore of Double Bay has potential significance as public open space subject to public pedestrian access being available from a public place.

Grounds of challenge

58 The Community Association challenged the order on numerous bases. Conditions 29 and 30 of the 2001 consent are invalid because:

(1) The conditions are beyond the Council's power to impose;

(2) are manifestly unreasonable;

(3) the dedication of land or an interest in land being the exclusive use area free of cost was not authorised by s 94(1); and

(4) conditions 29, 30 and 59 are not reasonable in the manner required by s 94(2) as applying on 5 February 2001 (currently s 94(4)).

Consequently conditions 29 and 30 are invalid and can be severed from the consent. Further,

(5) The operation of s 42 of the Real Property Act 1900 means that conditions 29 and 30 are not enforceable (indefeasibility of title).

(6) Conditions 29 and 30 have been complied with in any event.

Ground 1 - Conditions 1 (in part), 29 and 30 beyond power

Community Association's submissions

59 The Community Association submitted that conditions 29 and 30 had no legal nexus to the development for which development consent was sought. Conditions 29 and 30 were each ultra vires. The plan in condition 1 the subject of the order is intimately connected with conditions 29 and 30. Where the Council wished to reserve land for public open space it was entitled to do that in accordance with the provisions contained in the EPA Act. In due course, by reason of that reservation, it would have come under an obligation to purchase the land from the land owner and dedicate it for the public purpose which the Minister approved when making Amendment No 15. Having made Amendment No 15, the Council was then not able to use the opportunity of a development application to avoid its obligations to:

(i) acquire this land for its reserved purpose; and

(ii) pay compensation to the dispossessed owner.

60 The modification of condition 29 and the addition of condition 176 in the 2001 consent in November 2005 are also beyond power.

61 No legal nexus exists between development for which development consent was sought by the 2001 consent and conditions 29 and 30, as is required by s 80A of the EPA Act and by the legal principles set out in Newbury District Council v Secretary of State for the Environment [1981] AC 578. Newbury has been applied in this Court on many occasions. See for example Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; (2008) 158 LGERA 429 at [41]; also the High Court in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at [57] per McHugh J. The first requirement is that the condition must be for a planning purpose. It is accepted that these conditions do serve a planning purpose. Secondly, it must relate to the permitted development see Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 at 574. Thirdly, the condition must be a reasonable condition in the sense identified in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229.

62 Each disputed condition involved significant private detriment to the Community Association by requiring it to create over the land reserved for local open space identified as "L" on the diagram in Amendment No 15 new and potentially significant public access with consequential detriment to residential security, privacy and amenity as though the reserved purpose had already been carried into effect. The Council had a long standing intention since before rezoning the Babworth Estate to support open space zoning of land on the harbour foreshore. The Council had perceived a public benefit to implementing public access to private foreshore land zoned and to be used for open space. This policy is evident from the urban planning committee meeting minutes held on 8 March 1999.

63 It is manifestly clear that the Council imposed the disputed conditions so as, in effect, to give public access to private land without the need to comply with the procedures embodied in cl 15 of the LEP. Since 2001 it has tried to circumvent the effect of its own LEP by imposing conditions of development consent that would give public access to private land without the necessary acquisition and the concomitant obligation to pay compensation.

64 There was no "need" generated by the development for the provision of or increased demand for public access over the foreshore of Double Bay above the mean high water mark (MHWM). Accordingly, whilst these conditions are imposed for a planning purpose they are not imposed for a planning purpose that relates to the exercise of the power which is authorised under the statute. The second Newbury test is not satisfied.

65 There is no nexus between the exercise of purported power and the development for which development consent was sought. The development did not give rise to the need for the provision of public open space beyond that need which was met by condition 59. It is well established that s 94 of the EPA Act is the exclusive power for conditions that required dedication of land or payment of a monetary contribution. The principles and case law are helpfully recited by Craig J in Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1 at [48]-[49], citing in particular Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41. These conditions offend that principle.

66 The conditions can be severed from the consent per Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 (the Council agrees with that submission).

Council's submissions

67 The Council submitted that the terms of the order refer to completion of the DA Masterplan Layout Plan, the plan referred to in condition 1 of the 2001 consent. The pedestrian access is in accordance with the construction certificate drawing Masterplan Layout Level 1- Drawing no 20381. Condition 1 of the 2001 consent and the construction certificate are not challenged by the Community Association as beyond power. No s 96 application has been made to vary condition 1 of the 2001 consent.

68 The legal nexus between the 2001 consent and conditions 29 and 30 of the 2001 consent is established by s 79C of the EPA Act, cl 2 and cl 36 of the LEP incorporating LEP Amendment No 15 and the DCP and the rezoning process under Amendment No 15 to the Woollahra LEP 1995. By virtue of cl 36(11) of the LEP and s 35 and s 79C of the EPA Act the Council was empowered by s 80A(1)(a) of the EPA Act to impose conditions 29 and 30 of the 2001 consent.

69 The imposition of conditions 29 and 30 was ancillary or incidental to DA Masterplan Layout Plan 00023-0112 and were conditions consistent with the Open Space (Local Open Space Reservation) under Amendment No 15. The conditions were authorised in the public interest and were an outcome of the strategic planning for the site.

70 The LEP identifies the aims and objectives of orderly planning in the Woollahra municipality including the provision of public open space. Clauses 2, 8(2), 8(4), 8(5) and the development control table for the Residential 2(b) and Open Space 6 zones in cl 8 in the LEP were relied on. The Council submitted that item 3(d) in the development control table is relevant to cl 8(5). Conditions 29 and 30 and hence that part of condition 1 the subject of the order satisfy the three Newbury tests.

Consideration of ground 1

71 The Community Association seeks to challenge as beyond power several conditions of development consent being conditions 29 (foreshore access) and 30 (public positive covenant), and condition 1 to the extent that the approved plans referred to in that condition reflect the other conditions. The plan the subject of the s 121B order is such a plan. A modification of the 2001 consent in November 2005 by the Council added condition 176 and amended condition 29 and these changes are also argued to be beyond power. The legal position is complicated in that condition 30 requires the creation of a public positive covenant over private land belonging to the Community Association and has been given effect with the registration of the s 88B Instrument recording that covenant on 7 June 2001. There is also a debate between the parties about the area of land the subject of the public positive covenant now created pursuant to condition 30.

Section 101 notice does not prevent this appeal

72 Notification of the grant of the 2001 consent as provided for in s 101 of the EPA Act was given on 14 February 2001. Section 101 of the EPA Act provides that the grant of development consent cannot be questioned in any legal proceedings unless it is commenced within three months of the relevant notice being given.

73 The Community Association asserted that s 101 does not operate to prevent a challenge to these conditions. Jurisdictional error remains subject to judicial review, notwithstanding the privative clause as held in Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382 and Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [100]. The Council submitted that the public notice under s 101 of the EPA Act protects the development consent conditions from a collateral challenge in this appeal.

74 In my view, the reasons in Brown at [37] - [39] applying Kirk at [39] apply in this matter also. These should be followed in the interests of judicial comity (relevant principles are articulated in Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [90]) and because Preston CJ's findings appear correct. The public notice of the grant of development consent made in reliance on s 101 does not prevent the Community Association from making a collateral attack on the 2001 consent in this appeal as the grounds of challenge rely on jurisdictional error, namely whether the Council had power to impose the disputed conditions and as such is an error of the third kind identified in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 (Brown at [37] - [38]). Accordingly, the Community Association can mount a collateral challenge to the validity of the development consent conditions in this appeal.

Area of public positive covenant registered on title pursuant to condition 30

75 A public positive covenant was registered as part of the s 88B Instrument creating DP 270253 in 2001. The area zoned Local Open Space Reservation in Amendment No 15 marked "L" and edged in red is the area of foreshore in front of lot 17 and the two metre access between lot 17 and a neighbouring property stretching from Eastbourne Road to the MWHM identified in annexure A to this judgment. One issue raised by the evidence and submissions is what is the area of the public positive covenant "J" registered under the s 88B Instrument. This area is shown in the DP plan in annexure B to this judgment.

76 The Community Association seeks a finding that the public positive covenant "J" properly construed extends only to the 2m strip of land zoned Local Open Space Reservation between the cul-de-sac of Eastbourne Road and the MHWM of Double Bay where the steps are currently located. It does not include the land otherwise identified as "L" in Amendment No 15 (the foreshore land in front of the Litvers' house). Any ambiguity should be resolved against the Council applying by analogy the reasoning of Else-Mitchell J in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 in relation to the construction of development consents.

77 The Council submitted that there is no ambiguity in the s 88B Instrument. The area the subject of the public positive covenant "J" is the same as the area identified as "L" Local Open Space Reservation in Amendment No 15.

78 I agree with the Council's submission that area "J" in various plans constituting DP 270253 is the area bounded by the unbroken black line depicted as "L" in Amendment No 15. This accords with the terms of the public positive covenant in the DP. The lot burdened with a positive covenant numbered 10 in the table of easements/covenants created in the s 88B Instrument is lot 1. Lot 1 consists of several parts as shown in the plan sheet 1 of 6 in DP 270253 (p 310 of tender bundle). That part of lot 1 in front of and beside (now) lot 17 is the same area as "L" in Amendment No 15 zoned Local Open Space Reservation. The terms of the positive covenant numbered 10 in the plan states "the owner of the lot burdened covenants and agrees with Woollahra Municipal Council to permit full and free right to all members of the public over so much of the lot burdened and marked "J" in the plan as is zoned Local Open Space Reservation, to go pass and repass on foot without animals or vehicles between the hours of sunrise and sunset in order to gain access to the harbour foreshore of Double Bay." The letter "J" is connected by an arrow to the area bounded by solid black lines which is the same area as "L" in Amendment No 15.

79 While there was detailed reference to the DP plans by the parties which is difficult to set out in a narrative form, nothing hinges on that in my view. I do not consider there is any ambiguity requiring resolution. The Community Association submitted that because the plan (1 of 6) showed the letter "J" with brackets within the 2m strip between the private properties leading from Eastbourne Road to the foreshore (presently occupied by the stairs) that "J" was not intended to extend beyond the 2m strip. "J" in that location coincides with a drainage easement "C" which is delineated by dashed broken lines where the drainage easement is not otherwise delineated by solid black lines. "C" is described in the list of notations on that plan as an easement for drainage of water 2m wide. "J" is described as a positive covenant. The dotted line delineating a 2m strip beyond where the stairs are located is for the easement "C". It has no application to area "J".

80 Plan 3 of 6 of DP 270253 (p 312) was also referred to by the Community Association. This shows "J" and "C" in brackets in the same location as sheet 1 of 6. An arrow points to the dashed line from notation 12.005TRAV 13.96 MHWM. These traverse measurements relied on by the Community Association do not assist in the interpretation of the plan.

81 This conclusion is different from the surveyors' advice received by Kimberley Securities and the Litvers about the extent of the public positive covenant.

Section 80A(1) and second Newbury test not satisfied by conditions 29, 30 and 1 (in part)

82 The Community Association challenged as beyond the Council's power to impose conditions 29, 30 and condition 1 to the extent the approved plans give effect to those conditions, specifically the plan the subject of the order. Conditions of consent are enabled by s 80A(1) of the EPA Act. As I discuss below, applying findings in Cavassini Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456, conditions of development consent must satisfy s 80A(1)(a) and separately the tests identified in Newbury.

83 The three tests identified in Newbury have been applied in this Court and considered by the Court of Appeal many times. There is no dispute that the conditions satisfy the first test in that they are for a planning purpose. The Council's submissions focussed on establishing that there was a legal nexus between the development and the disputed conditions through the existence of a planning purpose. The Council referred in some detail to its planning instruments as identified above with parts of cl 2, aims and objectives, of the Woollahra LEP set out in relation to the provision of public space, the promotion of public access in the inter-tidal zone of Sydney Harbour and promotion of tree retention. In relation to heritage conservation the LEP aims to identify heritage items and provide measures for their conservation. In relation to foreshore areas, the LEP aims to provide further public pedestrian access to foreshore areas in appropriate locations. Further instruments referred to included Amendment 15 which aims to improve access to the Sydney Harbour foreshore where opportunity arises as one of the objectives of the Residential 2(b) zone. The open space zone includes the objective of enabling development for the purpose of private and public recreation. The DCP includes the planning principle of allowing public pedestrian access to the Sydney Harbour foreshore with numerous references in the document to how that would be achieved. The legitimate planning purpose of the disputed conditions is clearly demonstrated in the extensive references to the Council's planning instruments in the LEP Amendment No 15 and the DCP referred to in s 79C(1)(a).

84 At issue is whether s 80A(1)(a) and the second (must fairly and reasonably relate to the proposed development) and third (must not be unreasonable) Newbury tests are satisfied. Turning to the second test, in Dogild a Class 1 merits appeal, the Court held that a condition of development consent requiring a two way right of carriageway over the applicant's land for use by a large number of business premises beyond the land was invalid because it did not satisfy the second and third (in obiter) Newbury tests. The decision in Newbury, its application in numerous decisions in this Court and by the High Court in Temwood was considered.

85 In Temwood a subdivision of land was approved under Western Australian legislation on the basis that part of the land be vested in the Crown free of cost without payment of compensation by the council. This condition was upheld by the High Court as it was for a legitimate planning purpose and reasonably related to the proposed development. In relation to whether a condition reasonably relates, McHugh J adopted the Newbury test as cited by Biscoe J at [42] in Dogild. McHugh J stated at [57] - [58] (citations omitted):

The Commission also does not dispute that a condition attached to a consent must reasonably and fairly relate to the development permitted. A condition attached to a grant of planning permission will not be valid therefore unless:

1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.

2. The condition reasonably and fairly relates to the development permitted.

3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.

A condition attached to a grant of planning permission may be invalid although its ulterior purpose is not the sole purpose. If the ulterior purpose is a substantial purpose for which the authority is exercising its power, the condition is invalid. Counsel for Temwood conceded that the purpose of reserving the Foreshore Reserve was a proper town planning purpose. The question is whether the condition was imposed for a proper planning purpose.

86 Further examples of cases which have considered the second test in Newbury were outlined in Dogild at [52] - [54], including Parramatta City Council v Peterson (1987) 61 LGRA 286, a case relied on by the Council, where Stein J held that the development must benefit from the condition but that the benefit need not be direct. In Peterson the condition challenged was imposed pursuant to s 94(1) and required a monetary contribution for public parking as the provision of onsite parking would not satisfy the parking demand generated by the proposed development. Stein J held that the second test in Newbury does not need to be answered by geographical proximity but by whether the development is benefited by the public amenity provided, stating at page 296:

In my opinion neither s 94, not the judicial gloss on it, requires proof of a direct connection between the development and the public amenity upon which the contribution is to be spent. In my view it is sufficient if the parking facility serves the Parramatta CBD as a whole. In this respect I embrace the approach of Holland J in the Greek Finance case as the correct one and indeed the only commonsense and logical approach. To require a narrower and stricter approach will deny any public authority having regional or subregional centres within its boundaries the ability to effectively provide public amenities, the need for which may undoubtedly be generated by a development.

87 Cavasinni concerned a s 56A appeal from the decision of a commissioner to grant development consent with a condition which required the creation of a right of carriageway across the middle of the site from east to west in order to provide vehicular access to the rear of properties to the east of the site. On appeal this condition was found to be beyond the Court's power to impose. The council had a policy of providing rear lane access to business premises in the location. The appellant argued that s 80A(1)(a) was not addressed by the commissioner and the second test in Newbury was misapplied. Craig J agreed at [17] and held that s 80A(1)(a) required that the condition must relate to a matter referred to in s 79C(1) and that matter must be relevant to the particular development in issue. Section 80A(1)(a) must be addressed as the source of power to impose conditions before considering separately the Newbury tests at [21] citing Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 and Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313; (2003) 132 LGERA 225.

88 In Hammersmith Tobias JA (Mason P and Young CJ in Equity agreeing) held at [52] that the Newbury tests were additional to satisfying the statutory requirements in s 94(1) for the validity of a development condition. Craig J applied the same approach by parity of reasoning. His Honour considered Dogild at [27]-[28], [31] and identified at [29] that the dictum in Peterson was applied in McGregor v Bathurst City Council [1995] NSWLEC 71 where a broad approach to benefit was also taken.

89 The Court of Appeal in Hammersmith held that one of the limbs of s 94(1) and the Newbury tests had to be satisfied in order for a condition relying on s 94 to be valid. The council's argument that the statutory phrase in s 94(1) was satisfied where the relevant development would benefit from the public amenity (a conservation corridor) as reflective of Peterson was rejected as misconstruing the essence of that case. Tobias JA considered Peterson and a later decision of Stein J in Stockland (Constructors) Pty Limited v Shellharbour Council [1996] NSWLEC 123. Both cases were considering conditions imposed pursuant to s 94. Tobias JA at [57] considered Stein J's reasoning was to the effect that any condition requiring payment for public amenity or service must comply with the statutory phrase, and the contribution must be reasonable and satisfy the Newbury tests. In Peterson there was no dispute that the development would generate demand for parking in the council area. The first question in Hammersmith was whether the development increased the demand for a conservation corridor. If it did, the next question was whether a condition requiring payment of a monetary contribution towards the acquisition of the particular corridor fairly and reasonably related to the development. The issue of whether the development benefited from the corridor arose at that point at [55]. The primary judge's finding that s 94(1) was not satisfied because the residents of the proposed subdivision could make use of the corridor was upheld at [65].

90 In Cavasinni Craig J found there was an error of law in the approach of a commissioner in going directly to consider the advantages and disadvantages of the condition in issue without first identifying a nexus between the condition proposed and the development, the latter being a fundamental consideration required by s 80A(1)(a) and the Newbury tests, at [34]. That nexus will ordinarily be established if benefit, including indirect benefit, is demonstrated, acknowledging Biscoe J in Dogild at [52] recognising there may be a nexus demonstrated by means other than benefit at [33]. As the development derived no benefit indirect or otherwise from the condition in question in Cavasinni the required nexus was not established. Absence of real detriment to the user of the site if the condition was imposed was not a correct approach, at [32] - [33].

91 Applying the findings in Cavasinni adopting by parity of reasoning the Court of Appeal in Hammersmith, I will determine whether s 80A(1)(a) is satisfied by the challenged conditions. That is closely related to whether the second test in Newbury is satisfied. Section 80A(1)(a) provides that a condition may be imposed in relation to any matter referred to in s 79C(1) that is relevant to the proposed development.

92 It is clear from the report and recommendations of the Council's Urban Planning Committee in March 1999 in relation to the making of the DCP which were adopted by the Council as set out above in par 54 - 55, relied on by the Community Association, that the Council's purpose in requiring the public positive covenant in condition 30 and the provision of public access by stairs to the foreshore area under condition 29 was to provide public access to the harbour foreshore on that private land. The purpose is confirmed in the text of condition 30 which states expressly in the last sentence that the condition is imposed so as to provide a legal right for the public to access the site in order to gain access to the foreshore. That access is over private land that is part of the community lot (lot 1) of the Babworth Estate. A need for the provision of public access to the foreshore did not arise directly or indirectly from the development of the Babworth Estate. There is therefore no nexus between the provision of that public access with the development of the Babworth Estate. The development of the Babworth Estate was considered by the Council to be an opportunity to pursue a Council policy of providing greater foreshore access to the public.

93 That the public positive covenant was offered voluntarily by the developer in 2001 is immaterial to whether the conditions are within the Council's power to impose, as the Community Association submitted. A similar finding was reached in Australian International Academy of Education at [70] in the context of s 94(1) of the EPA Act.

94 As to whether there is a relevant benefit to the Babworth Estate in terms of the second Newbury test, the members of the Community Association would be entitled to access the foreshore area as part of the community lot 1 but for the mutual agreement to allow exclusive use of that area to the owners of lot 17 (currently the Litvers). The land wholly abuts lot 17 and is not near any other lot in the Babworth Estate, being located at the end of a finger of land.

95 The Council relying on Peterson submitted that other members of the Community Association can access the foreshore area as any member of the public. As identified above in par 89 the approach in Peterson was considered in Hammersmith and the principle for which the Council relies on it in this case was not accepted there, albeit in the context of s 94(1). The circumstances of this case are analogous to Dogild and Cavasinni as no direct or indirect benefit is obtained by the Babworth Estate and the same finding should apply by parity of reasoning.

96 In conclusion, there is no nexus between the Babworth Estate development and the requirement in condition 30 to create a public positive covenant over the land zoned Local Open Space Reservation as required by s 80A(1)(a) and the second test in Newbury. The requirement under condition 29 to provide suitable pedestrian access to the foreshore land for the public also does not satisfy the requirement in s 80A(1)(a) and the second test in Newbury. The plan in condition 1 the subject of the order contains the stairway the subject of condition 29 and the same findings apply to it.

97 The third test in Newbury is that a condition must not be unreasonable and this has been recognised as meaning in the Wednesbury sense; Tobias JA in Hammersmith at [53]. This issue is identified in ground 2.

Ground 2 - conditions 29, 30 and 1 (in part) manifestly unreasonable (third Newbury test)

Community Association's submissions

98 The Community Association submitted the conditions 29, 30 and by extension condition 1 in part, were unreasonable as they imposed an unrealistic burden on the Community Association to manage the private foreshore area between sunrise and sunset to facilitate public access. The practical difficulties of managing and maintaining private land for public purposes between sunrise and sunset immediately adjacent to lot 17 were evidenced in the affidavits of Mr and Mrs Litver summarised above at par 43 - 44 and were apparent on the view. Problems include security issues with drug use and other antisocial behaviour occurring on the stairs at all hours when the access door on Eastbourne Road was not locked.

99 Further, given the location of the foreshore land with the only access being a relatively narrow and lengthy set of stairs, public safety and maintenance issues also arise. In the absence of any further arrangements the Community Association is responsible for maintenance of land to be used by the public, there being no express provision in the conditions or elsewhere for this.

Council's submissions

100 The Council submitted conditions 29 and 30 were not unreasonable. The land marked with the letter "L" in Amendment No 15 is land which the Council is responsible for acquiring if the Council exercised its power of compulsory acquisition or was otherwise compelled to acquire. Conditions 29 and 30 and the DCP allow the Community Association to seek an offset in relation to the s 94 contributions. The conditions do not vary any rights of compulsory acquisition held by the Community Association. The conditions are consistent with cl 36(1) of the LEP, the DCP and the submitted DA which included Masterplan Layout Plan 0023-0112. The conditions were authorised by s 80A(1)(a) or (f) of the EPA Act.

101 The Community Association required in its own management statement compliance by all proprietors with the terms of the development consent and the master plan the subject of the development consent. These instruments have been registered under the Real Property Act. There can be no unfairness or unreasonableness. By the acceptance of the provisions of the agreement, the proprietor of lot 17 is bound by the undertaking given to the Community Association to comply with the consent. That promise was registered on title.

Conditions are unreasonable

102 As the Community Association submitted, condition 29 imposes an unreasonable burden on it in relation to management of the public on the foreshore land. The Litvers, as the beneficiaries of the exclusive use provision of the foreshore land marked "J" in the Community Association's Management Statement, effectively bear the burden of that management.

103 Managing the behaviour of members of the public is not addressed at all in that condition. There are at least two aspects to this matter, firstly the safety of members of the public using the existing stairs and any extension of these into the foreshore area if this were to be built, and secondly, the amenity and safety impacts of the use of the stairs and any extension of these into the foreshore area by the public on the Litvers' property in particular and other surrounding residential properties to a lesser extent. The physical layout of a narrow long staircase between two houses to a small foreshore area creates potentially significant management problems in both respects. For example, I am not aware that there is provision for lighting of the stairs. The original condition 29 required a locked gate on Eastbourne Road between sunrise and sunset. The amended (since 2005) condition 29 and condition 176 require 24 hour access to the foreshore land. The amenity and safety issues experienced by the Litvers until the gate was locked permanently by them in about 2010 are identified in their affidavits set out above at par 43 - 44.

104 Actual or potential problems with safety of members of the public and impact on adjoining neighbours already exist with the existing stairs. Were the stairs to be extended into the foreshore area covered by the public positive covenant, it is safe to assume these problems will be exacerbated. No provision in the development conditions is made for public liability insurance, maintenance of the access stairs or management of security, assuming it would be within power to impose such conditions (which is debateable given my conclusion in relation to s 80A(1) and the second Newbury test above).

105 Public land managed by a council has the benefit of council rangers exercising control over members of the public, limiting access to land where necessary such as by locking access gates and expenditure by a council on infrastructure such as lighting to ensure public safety. The assumption in the conditions is that the Community Association bears these responsibilities. That assumption is unreasonable in the circumstances of this case. I consider that conditions 29 and 30 and condition 1 in part are unreasonable in the Wednesbury sense and therefore that the third Newbury test is not satisfied.

106 The Community Association is successful on this ground of appeal also. I consider that conditions 29, 30 and condition 1 to the extent these are implemented through a plan were imposed without lawful power to do so. The parties agree that conditions 29 and 30 and the plan the subject of the order can be severed from the consent.

Extension of grounds 1 and 2 - Modification of condition 29/addition of condition 176 invalid

107 The Community Association also challenged the 2005 modification of condition 29 by the Council to require public access to the foreshore at all times and the addition of condition 176 requiring deletion of the public access gate at the top of the stairs. Neither modification was sought by the applicant (then Kimberley Securities) as part of the application to modify the 2001 consent under s 96 of the EPA Act. The same findings made concerning the original condition 29 in relation to the lack of requisite nexus under s 80A(1)(a) and the failure to satisfy the second and third Newbury tests also apply to these modifications as similar issues arise again given the expectation that the land be managed for public access at all times. These modifications were beyond the Council's power to impose and are invalid. These conditions can be severed from the 2001 consent.

108 These findings in relation to grounds 1 and 2 suggest that I should not enforce the s 121B order the subject of this appeal. I do not need to conclude finally any of the remaining grounds of challenge and my findings on these are obiter.

Ground 3 - Conditions requiring public use of land not authorised by s 94(1) not established

109 Section 94 provides:

94 Contribution towards provision or improvement of amenities or services

(1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:

(a) the dedication of land free of cost, or

(b) the payment of a monetary contribution,

or both.

...

110 A contribution can only be imposed under s 94 if a contributions plan is in force, as required by s 94B.

111 The Community Association submitted that it is only by s 94 of the EPA Act that a council may require as a condition of consent the dedication of land or the payment of money, relying on Hammersmith; Meriton Apartments Pty Ltd v Council of the City of Sydney [2011] NSWCA 17; (2011) 80 NSWLR 156 and Australian Academy of Education per Craig J. Conditions 29, 30 and related conditions, required the owner to surrender an interest in the land zoned Local Open Space to the general public. The conditions were not authorised under s 94 of the EPA Act. Land is widely but not exclusively defined in s 4 of the EPA Act. The definition of land under the Land Acquisition (Just Terms Compensation) Act 1991 (JT Act) includes any interest in land (s 4(1) Definitions). The Interpretation Act 1987 s 21 defines land as including "messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein". Any condition requiring an interest in land to be provided must be authorised by s 94.

112 The Council submitted that conditions 29 and 30 did not require the dedication of land or the payment of contributions within the meaning of s 94 per Olivieri at [22], Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2; (2010) 171 LGERA 286. Conditions 29 and 30 were not imposed in reliance on s 94. The conditions were authorised by s 80A(1)(a) or (f) of the EPA Act.

Ground 3 not established

113 Section 94 coupled with the requirement for a contributions plan made in accordance with s 94EA is the source of statutory power to impose a condition of development consent requiring the payment of a monetary contribution and/or the dedication of land. All the cases relied on by the Community Association are cases where conditions were considered in the context of s 94. The circumstances in Hammersmith are summarised above in par 88 - 89. Australian International Academy considered a condition requiring the applicant to dedicate to the council free of cost part of a site identified in the council's policies as a proposed local road. The issue arose of whether such a condition complied with the provisions of s 94 and s 94B of the EPA Act. The council argued that the condition was proffered voluntarily by the applicant so that the constraint in s 94 did not apply. That submission was rejected and the condition was held to be invalid. The issue that arose in Meriton was whether the amount of contribution required under s 94 should be reduced to take into account credit for past occupation of the site to reflect the creation of demand for public amenities. The facts of these cases are different to this case and consequently the analysis relied on by the Community Association does not assist the Court.

114 As the Council submitted, the conditions in question in this case do not require the dedication of land free of cost or the payment of money. Dogild rejected the submission that the dedication of land to the public free of cost was governed exclusively by s 94 and the requirement to have a contributions plan under s 94B, at [67], citing Olivieri. The conditions in issue here, while creating some sort of interest in land being the right of the public to pass over the land, are not interests covered by s 94 and it has no role to play. The definitions of land in the JT Act and Interpretation Act have no role to play in the circumstances of s 94 of the EPA Act. The Community Association is unsuccessful on this ground.

115 Given my reasoning in relation to ground 3, that s 94 does not apply, s 94(2) (now s 94(4) according to the Community Association see grounds par 58) the subject of ground 4 cannot arise. I will not therefore consider ground 4.

Ground 5 - Indefeasibility of title does not defeat consent conditions

116 The Community Association submitted that the title of the Community Association DP 270253 and individual owners within the Community Association DP 270253 in relation to the land in issue is indefeasible under s 42 of the Real Property Act. Section 42 states:

42 Estate of registered proprietor paramount

(1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except:

[(a) - (d) do not apply]

...

(3) This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section.

117 The Community Association became the registered proprietor of lot 1 DP 2700253 from 7 June 2001. The grant of the interest under conditions 29 and 30 creates an interest in land in the Council and/or the public. Additional owners, including the Litvers who became registered proprietors of lot 17 DP 270253 in 2008, have acquired interests in lot 1 DP 270253 from time to time since 7 June 2001. The registration of the public positive covenant required by condition 30 defeats the prior interest of the Community Association DP 270253 and owners of individual lots in Community Association DP 270253 who have the registered right to the exclusive use of that area. Once the registration of a new proprietor of a lot in DP 270253 occurred after 7 June 2001 the opportunity for the Council to enforce condition 30 was lost as the various proprietors gained an indefeasible title in the lot purchased and in lot 1 per City of Canada Bay Council v F & D Bonaccorso Pty Ltd [2007] NSWCA 351; (2007) 71 NSWLR 424. The decision of the High Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 supports this approach.

118 The Council submitted that s 42 is not available to defeat non-compliance with conditions of development consent in the way contended for by the Community Association. The relevant instruments registered on the title of the Babworth Estate such as the s 88B Instrument, the community management plan, and the Masterplan layout as one of the plans for DP 270253 are identified limitations on title registered under s 42 of the Real Property Act. The development consent conditions are in accordance with these. Hillpalm has no application. Section 42 has never been protection against an incoming owner or new owner for outstanding consent conditions concerned with the use of land. The use of the subject land must be consistent with the development consent granted in 2001. While the construction of the stairway remains incomplete and the public cannot use the land as anticipated by the consent, that is a failure to comply with condition of consent as to the use of land. It has nothing to do with registration of title to the land.

Ground 5 not established

119 The Litvers purchased their property subject to the interests recorded on the register under the Real Property Act including the registered public positive covenant. That interest is recorded in the title to community property lot 1. The exclusive use by-law benefiting lot 17 does not create ownership in area "J" in the Management Statement.

120 The s 88B Instrument and DP 270253 when registered in 2001 created interests in land which all subsequent owners including the Litvers are subject to. The registration of the Community Association DP 270253 on 7 June 2001 included the plans for DP 270253, the s 88B Instrument under the Conveyancing Act and a Community Management Statement. This registration created a variety of burdens on the Babworth Estate land including a public positive covenant over the land identified as "J", the extent of which I have found above at par 78 - 81 to be the entirety of the foreshore land in front of lot 17. The rights and interests of the Community Association as owner are subject to the interests identified in the s 88B Instrument. Condition 30 required the creation of the public positive covenant and that has been given effect to by registration of an interest which affects the title of owners of (community) lot 1. In the case of the Litvers the relevant s 88B Instrument was attached to the contract for sale and was readily discovered with the usual land title searches undertaken as part of a conveyance of land in any event. The Community Association seeks to rely on indefeasibility of title under s 42 of the Real Property Act. As the Council submitted, s 42 assists its arguments.

121 The enforcement of conditions of consent theoretically remains outstanding as the pedestrian access has not been provided as required (ignoring my conclusions on grounds 1 and 2 for the moment). That does not raise indefeasibility of land title issues such as were considered in Hillpalm. Hillpalm does not support the Community Association's submissions. The facts of that matter concerned a failure to create an easement in favour of a subdivision at the relevant time which claim was held by the High Court to be defeated with registration of the subdivision without the interest required by the development consent being created. That case addresses different factual and legal circumstances. The Community Association is unsuccessful on this ground.

122 The Community Association submitted in the alternative that conditions 29 and 30 had been complied with. I do not need to consider this ground in light of my findings above in relation to grounds 1 and 2.

Conclusion

123 My findings in relation to grounds 1 and 2 result in the exercise of my discretion not to enforce the order the subject of this appeal. In light of the circumstances outlined in grounds 1 and 2 the appropriate course is that I revoke the order issued under s 121B of the EPA Act, as I am empowered to do under s 121ZK(4)(a). I will ask the parties what they wish to do in relation to costs before determining whether a costs order ought be made.

Orders

124 The Court makes the following orders:

(1) The order issued under s 121B of the Environmental Planning and Assessment Act 1979 dated 3 August 2012 by Woollahra Municipal Council to the Community Association is revoked.

(2) Costs are reserved.

  

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Annexures A and B

 

Decision last updated: 04 November 2013