RECORD OF HEARING
CORAM: Talbot J
NUMBER: 10550 of 1992, 40032 of 1993
MATTER: D T R Securities Pty Limited
V
Sutherland Shire Council
Sutherland Shire Council
V
D T R Securities Pty Limited
KEYWORDS: Development consent - Estoppel - effect of in challenge to validity of condition - Section 20(2) L & E Court Act - jurisdiction to make declaration relying on estoppel - developer estopped from denying validity of condition requiring dedication of land pursuant to s.94 EPA Act
HEARING DATE: 8 - 10 March 1993, 12 March 1993
JUDGEMENT: Reserved
JUDGEMENT DATE: 24 March 1993
APPEARANCES:
Applicant/ Mr A Ayling Instructed by Osborne & Associates Respondent: Solicitors
Respondent/ Mr T Hale Instructed by Mr O Hughes
Applicant: Environmental Lawyer for Sutherland Shire Council
IN THE LAND AND CORAM: TALBOT J
ENVIRONMENT COURT MATTER NO: 10550/92, 40032/92
OF NEW SOUTH WALES DECISION DATE: 24.3.93
Applicant
Respondent
Applicant
Respondent
The litigation between the parties to these proceedings was first commenced in matter no. 10550/92 by way of an appeal against the determination of development application number 722/92 by the respondent.
On 6 April 1992, DTR Securities Pty Limited (DTR), as the registered proprietor of the land made an application to the respondent council for development consent to the subdivision of Lot 1, DP 715388, in Woronora Crescent, Como into three residential alottments.
On 20 July 1992, the council determined the development application by the granting of consent subject to conditions. The conditions included the following condition 21:-
"21. Prior to the release of the Linen Plan of Subdivision for subdivision, Lot 3 on amended plan No. 21744/1 shall be dedicated as public open space at no cost to Council."
The applicant is dissatisfied with condition 21. Although it accepts that Lot 3 in the proposed subdivision can be vested in the council it challenges the council's claim to have that land dedicated at no cost.
Until 1992 pursuant to Sutherland Planning Scheme Ordinance (SPSO), proclaimed on 22 April 1980, the subject land was shown on the scheme map as reserved land - Reservation Local Road Proposed. Under clause 10(1) and (2) of SPSO development could not be carried out (other than development required for or incidental to the purpose for which the land was reserved) unless the purpose for which the land was reserved could not be carried into effect within a reasonable time after the appointed day.
Clause 18 of SPSO provided:-
"18. (1) The owner of any land reserved under Division 2 or 3 upon which the erection of any building or the carrying out or alteration of any work of a permanent character or the making or alteration of any permanent excavation is prohibited except for or incidental to a purpose for which the land is so reserved, or the owner of any land so reserved, in respect of which the responsible authority has refused its consent pursuant to clauses 10(2), 13(2) and 17(1) may, by notice in writing, require the responsible authority to acquire that land.
(2) Upon receipt of a notice referred to in subclause (1) the responsible authority shall acquire the land to which the notice relates."
The proposed Lots 1 and 2 are now zoned Residential 2(e1) under Sutherland Local Environmental Plan 1992 (SLEP) which was gazetted on 27 March 1992. The balance of the land namely the proposed Lot 3 is zoned Open Space 6(a) under the planning instrument.
Clause 44(1) of SLEP provides:-
"44. (1) The owner of land in the 6(a) Public Recreation zone may request council to acquire the land. The request must be in writing. On receipt of the request, the council shall make arrangements for the acquisition of the land."
Proposed Lot 3 comprises a strip of undeveloped bush land surrounded to the east and the west by Public Reserve Part Portion 58, DP 7019. The southern section of the land within the residential zone abuts a recently subdivided residential site on the west (formerly Lot 15, DP 7019) and developed residential land on the east (Lot 4, DP 232530).
The site is visually important. It has a river frontage and is contiguous with natural bushland along the Woronora River.
The total area of the subject land is 5,526 m2.
The legal status of the subject land and its ownership have been the subject of protracted controversy and uncertainty.
RELEVANT HISTORY
An Official Search made by the Registrar General at the request of DTR in 1981 disclosed that, whereas the land was shown as a "Reserve" in DP 7019, it was shown in a subsequent certificate of title as "Road Variable Width". The Registrar General advised that in 1886 an intent to dedicate the site as a road was recorded in Government Gazette 4 June 1886 folio 3886, however there was no evidence to indicate that action was taken to put the dedication into effect.
The information from the Registrar General was passed on to the council by DTR with a suggestion by the company that the simplest way of resolving the problem would be for council to resume the land as road. Once resumed, DTR said it would request closure of the road. An amount of $60,000 would be lodged with council as security to cover the cost of resumption including payment of compensation. The area of land severing the existing public reserve would be dedicated by DTR as full open space contribution in respect of the subdivision of the balance of the resumed land and for other lands being developed by DTR.
In November, 1981 council considered this proposal and resolved that as the existing public reserve area had been purchased by the Department of Environmental Planning, the Department should be considered responsible for the acquisition of that section of "road" within the public reserve area, and further, that no action be taken to rezone the "road" area until the Department's views on acquisition were known.
The Department considered that it was not obliged to acquire the land given its zoning but expressed the opinion that it would appear reasonable that the developer be required to dedicate the land severing the reserve as full open space contribution, particularly, in view of the fact that the exchange of land for dedication of the road south of the reserve would benefit the subdivisional capacity of the Residential 2(e1) land.
In the meantime DTR commenced negotiations for the purchase of the land from the executors of the estate of the late Thomas Holt, the original owner.
To facilitate that sale the council was requested to furnish a formal acknowledgment that the land had not been developed as a road and that there was no record of dedication. Council refused to co-operate. If the road reserve had been dedicated then presumably under s.232 of the Local Government Act the fee simple in the land would be vested in the council.
On 28 August 1983, council resolved to prepare draft LEP No. 60 in an attempt to resolve the dispute about ownership of the subject site as well as facilitating the determination of development proposed for the adjoining Lot 4, DP 232530 and Lot 15, DP 7019 Woronora Crescent, both of which were then owned by DTR.
The changes proposed by draft LEP No. 60 were as follows:-
"* To change the existing "Reservation - Local Road Proposed" to "Reservation 1(a) Open Space"; and
* To change a small portion of the western corner of adjoining lot 4, DP 232530 from "Reservation - Local Road Proposed" to "Residential 2(e1)"."
At or about that time DTR claimed to have become the beneficial owner of the subject land having contracted to purchase it from the Holt Estate.
On the basis of that interest, the company lodged a submission with council in regard to the making of LEP 60. The company estimated to council that the compensation to which it would be entitled was between $150,000 and $200,000, if the plan proceeded.
On 1 November 1983, DTR submitted the following proposal to council:-
"1. We will provide a proposal for development of our land including part of the land the subject of Sutherland Shire Local Environment Plan No. 6 which will provide full and proper public access to the reserve and donate that part of our land which is adjoined on the two sides by the existing reserve of the Sutherland Shire Council free of charge but in lieu of the public gardens and recreational contribution for the development so that the Sutherland Shire obtains the additional reserve and provide public access to same at no cost. The development would be along the lines of what is permitted under present zoning of the land of Residential 2(e)1 and would comply with Council's normal requirements relating to developments of similar kind.
2. In the alternative and without prejudice to our rights we would offer the land the subject of Sutherland Local Environment Plan No. 6 upon completion of our purchase to Council for the sum of $100,000 subject to Council approving the development as permitted under the present zoning on the adjoining land namely the land in Certificates of Title Volume 6360 Folio 21 and Volume 10548 Folio 31."
The reference to Sutherland Local Environment Plan No. 6 was intended as a reference to draft LEP 60.
Further action in relation to the draft LEP was deferred by the council pending legal advice in respect of the legal action necessary to protect the interest of council in retaining the land as open space.
By letter dated 24 October 1985, the Registrar General advised council that a transmission application by the executors of the Holt Estate and DP 715388 had been lodged for registration. There was no response by the council.
On 4 July 1987, DTR lodged, with council, an application for the subdivision of Lot 15, DP 7019 into four lots.
Following the lodgement of the application for subdivision the council renewed representations to the Department of Environment and Planning regarding the previously proposed joint acquisition of the land. The representations were rejected because of severe financial constraints.
The subdivision of Lot 15 was approved by the council on 7 December 1987 subject to conditions including a condition requiring payment of $7,425 as a contribution in lieu of physical provision for public reserve.
On 26 July 1988, a transfer from the executors of the Holt Estate to DTR was completed.
In a letter dated 16 August 1988 to the Council, DTR put forward the following proposition as an alternative to the making of LEP 60 and joint acquisition of the reserve land:-
"- That Council prepare an amended L.E.P., zoning part of lot 1 D.P. 715388 for residential use and part open space.
The attached plan 18999/6 shows the suggested zoning and indicates a subdivision creating two residential lots and one open space allotment fronting the Woronora River. If such a zoning was instigated our client would seek subdivision consent and would dedicate the whole of lot 3 as public reserve provided no contribution was sought by Council for the creation of the overall six allotment being created."
Direct discussions took place between DTR and council officers and these are reflected in the following statement by the Shire Planner in a report to council on 26 September 1988.
"The Director of D.T.R. Securities Pty Ltd has also agreed to:
(a) grant Council right-of-carriageway over the 4 lots created by the subdivision of adjoining Lot 15 to enable Council maintenance and fire control vehicles access to the reserve; and
(b) provide a right-of-carriageway to proposed Lots 1 and 2 (i.e. the subject land) over the 4 lots created on adjoining Lot 15. This would be environmentally better because it would remove the need for construction of the proposed right-of-carriageway on the northern side of proposed Lots 1 and 2 shown in Annexure 3. This means less site disturbance and greater opportunities to retain trees on the subject land."
The Shire Planner went on to make the following observations in the same report:-
"If Council does not favour rezoning the land as requested, it will need to acquire the land because of the current zoning and proposed zoning in the Draft Plan submitted to the Minister in 1984. While a valuation would need to be obtained, provisions in the Environmental Planning and Assessment Act, 1979 applying to acquisition of reserved lands suggest that at least the front part of the land would be valued as residential land. The Director of D.T.R. Securities Pty Ltd believes proposed Lots 1 and 2 would fetch $150,000 each on the market at present i.e. a total of $300,000. The balance of the land is larger in size, has water frontage and is capable of development. On available information it would appear acquisition of the land will be costly and probably in excess of $250,000 given it is capable of subdivision and has water frontage.
..........
The alternative proposed by D.T.R. Securities Pty Ltd achieves Council's objectives in part as follows:
1) the strip of land currently separating the waterfront reserve will be dedicated as public reserve;
2) pedestrian access to the reserve will be provided by a pathway created in the subdivision of adjoining Lot 15; and
3) Council vehicle access to the reserve will be provided by extension of the right-of-carriageway on adjoining Lot 15 provided agreement is reached before the release of the linen plan for subdivision of this lot.
The proposal by Wallis and Moore Pty Ltd and D.T.R. Securities Pty Ltd is the least cost solution available to Council in monetary terms. The principal environmental cost will be the loss of the existing bushland strip between existing Lot 4 and Lot 15. The proposal would result in some loss of amenity for residents in close proximity to the land who enjoy bushland vistas over the land.
If Council is attracted to the proposal, it will need to act quickly if it wishes to secure right-of-carriageway for vehicular access to the reserve. Trying to negotiate a similar access with owners of the new lots could prove difficult and require compensation."
Finally on 17 October 1988, the council adopted the following recommendation:-
"1. That Draft Local Environmental Plan No. 60 to rezone Lot 1, DP 715338 (formerly Part Por. 58) Woronora Crescent, Como, as shown in Annexure 2 be abandoned and the Secretary of the Department of Planning be informed accordingly.
2. That a Draft Local Environmental Plan be prepared in accordance with the provisions of Section 54 of the Environmental Planning and Assessment Act, 1979 for the land Lot 1, DP 715338 Woronora Crescent, Como as shown on the map attached to this report in Annexure 1, for the purpose of rezoning the land to part Residential 2(e1) and part Open Space 6(a) as shown in Annexure 3.
3. That the Secretary of the Department of Planning be advised of the following information:
(a) the date of Council's decision;
(b) the reason for preparing the draft plan is to permit the land to be partly developed for residential purposes, and partly dedicated for public reserve;
(c) the draft plan will apply to Lot 1, DP 715388 Woronora Crescent, Como;
(d) the matters to be dealt with by the draft plan include the desirability of allowing partial residential development of the land in return for securing additional land for public reserve and access to that land;
(e) the current planning position is that the subject land is zoned Reservation (Local Road) under the Sutherland Planning Scheme Ordinance;
(f) the existing natural environment of the subject land consists of vacant land; and
(g) it is the Council's opinion that an environmental study is not necessary in relation to this draft plan because of the minor nature of the draft plan proposal.
4. That Wallis and Moore Pty Ltd be informed of Council's above decisions and that it be advised that Council's continued support of the new Draft Local Environmental Plan is subject to the following commitments being met:
(a) an amended subdivision application being lodged for adjoining Lot 15 providing constructed right-of-carriageway access to Council's reserve, as well as providing for future right-of-carriageway access to proposed Lot 2 over adjoining Lot 15 to cater for vehicle access in any future subdivision of the Lot 1, DP 715388; and
(b) provision for public pedestrian access to the public reserve being maintained in the location shown on the existing subdivision approval for Lot 15.
5. That subject to the Draft Plan being approved by the Minister for Planning following public exhibition, the dedication of that part of the land zoned 6(a) Open Space, provision of Council's right-of-carriageway over Lot 15 and the dedication and construction of pedestrian access to the public reserve be accepted as satisfying the Section 94 Contributions for the equivalent of 6 lots on Lot 15 and Lot 1, DP 715338 combined."
The draft LEP referred to in 2 above became Draft LEP 139.
On 21 October 1988, the council communicated its resolution of 17 October 1988 to DTR.
There has been no subsequent communication to the council, or any of its officers, by DTR, or any of its representatives to the effect that the company did not accept the commitments offered in return for the support of the rezoning.
On 1 June 1989 DTR wrote to the council. After referring to the approval of the subdivision of Lot 15 on 8 December 1987 and the letter of 21 October 1988 DTR requested the release of the subdivision plan. The works required to subdivide Lot 15 had been completed. The implementation of the conditions referred to in the letter of 21 October 1988 could take some time. A bank guarantee for $7,425 was lodged to secure the payment of the public reserve contribution "should the conditions envisaged in your letter of 21.10.88 not eventuate".
The following proposals regarding the obligations of the parties were submitted by DTR in order to clarify the purpose of the bank guarantee, and to avoid any further queries:-
"A. The Bank Guarantee is to be released to our company on registration of the proposed subdivision Lot 1, DP 715388 giving effect to the dedication of that part of Lot 1, noted on the draft environmental plan No 139 "6(a) Open Space" as a public reserve.
B. The Sutherland Shire Council may call for the payment of $7,425.00 if the subdivider is no longer in a position to give effect to the proposed dedication, or if the minister has refused Council's proposals to rezone Lot 1.
C. Any call for payment referred to in "B" to be made by written notice giving 21 days to pay. If payment is not made according to that notice, the Council shall have the right to call up the Bank Guarantee lodged herewith.
D. The release of the subdivision plan for Lot 15 DP 7019 will evidence the subdivider's and Council's acceptance of the proposals contained in paragraph A - C of this letter."
The subdivision plan was subsequently released and registered as DP 791931.
On 26 September 1989, the company again wrote to council referring to the letter of 21 October 1988 and pointing out that by registering DP 791931 with the alterations required by council, the company had fulfilled the commitment requested by council in return for council's continued support for the proposed rezoning. The council was requested to proceed with draft LEP 139.
The following comments were made in the letter:-
"1. By registration of DP 791931 your Council acquired a right of carriageway to its land, and the public was given legal pedestrian access to the public reserve. Both of those facilities have been provided on our land, and at our cost, on the express promise of your Council to submit and support to the relevant authority the proposed rezoning.
2. It is clearly evident that by providing those rights of ways to the reserve on our property the land subject to the proposed rezoning will not be required for roads.
3. The delay by your Council in dealing with this matter can no longer be justified, as the ownership of the land is not in question. We are the registered proprietor of the land in question and the Land Titles Office has confirmed in April 1989 that our company has good title to the property."
Acting on a report by its Director Corporate Services, following legal advice in regard to the ownership of the reserved land, council resolved, on 23 October 1989, to institute proceedings in the Equity Division of the Supreme Court to seek declarations that the land comprised in Lot 1 DP 715388 was dedicated to, and accepted on behalf of the public as public road, and that title is vested in the council in fee simple.
It should be noted that in May 1989, solicitors acting for DTR had already suggested to council that the question of the ownership of Lot 1 in DP 715388 be referred to the Equity Division of the Supreme Court of New South Wales for determination.
Further action in relation to the making of draft LEP 139 was then deferred pending the referral to the Supreme Court and DTR was advised accordingly.
On 8 March 1991, Young J determined as a preliminary question that an agreement to exchange land designated as roads was insufficient of itself to show that land dedicated as roads had been accepted by the public so as to be public roads before the commencement of the Local Government Acts.
Following the determination of that preliminary question the proceedings were discontinued by council pursuant to a resolution of 11 March 1991. At the same meeting, the council adopted a recommendation from the Deputy Shire Clerk to refer draft LEP 139 to its Environment and Health Committee.
Notwithstanding a recommendation to the contrary the council, at its meeting on 22 April 1991, decided that draft LEP 139 not be proceeded with and that inquiries be made in connection with the purchase of the land by council. Pursuant to that resolution the council approached DTR with a preliminary inquiry as to whether the company had any inclination to sell the whole of Lot 1.
The company indicated by way of response that it had already exchanged agreements for sale for the proposed Lot 2 for $160,000 and that Lot 1 was on the market for $150,000. The council was informed by its Director - Corporate Services that the current balance of section 94 funds in the Como area was insufficient to finance the acquisition. On 16 July 1991, the council adopted a recommendation that no further action be taken by council to acquire Lots 1 or 2 in the plan of subdivision and that draft LEP 139 be supported. The Department of Planning and DTR were advised accordingly.
Ultimately SLEP incorporated the provisions of draft LEP 139.
The application for subdivision of Lot 1 DP 715388 was assessed by council officers on an assumption that the land within the 6(a) zone would be dedicated to council in accordance with the zoning and in satisfaction of the public open space requirement.
DTR advised council by letter dated 16 November 1992 that it proposed to appeal to this Court in respect of condition 21. On that same date a formal notice to acquire pursuant to clause 44(1) of SLEP executed under the seal of DTR was submitted to council.
Class 1 proceedings were instituted on 16 November 1992.
The original application class 4 was filed after the commencement of the hearing of the class 1 proceedings following which I made orders facilitating concurrent hearings. Evidence already admitted in the class 1 proceedings which was not admissible in the class 4 proceedings was identified and excluded from the class 4 matter by consent. The exhibits have been marked accordingly.
After Mr Hale had completed submissions for the applicant and Mr Ayling had identified a challenge to jurisdiction on the basis that no cause of action was disclosed by the class 4 application Mr Hale made a further application for leave to file an amended application class 4. Leave was granted over objection by the respondent. No prejudice to the respondent was identified and Mr Ayling conceded that the additional claim for relief did not raise any new issues or require further evidence.
It is appropriate to determine the class 4 proceedings before considering the issues raised in the class 1 proceedings.
CLASS 4 APPLICATION
The relief claimed by the council is set out in full.
"1. A declaration that the respondent is estopped from denying that the requirement in condition 21 to development consent 722/92 in respect of Lot 1 in DP 715388 Woronora Crescent, Como to dedicate as public open space Lot 3 in the proposed subdivision, the subject of the development consent is not a condition authorised by Section 94 of the Environmental Planning & Assessment Act.
2. A declaration that the respondent is estopped from denying the power of the applicant (or the Court on appeal) to impose condition 21.
3. A declaration that the respondent is estopped from withdrawing its offer to dedicate free of cost to the applicant as public open space proposed Lot 3 upon the rezoning of the land and grant of development consent and subdivision approval which would give effect to and to permit the development of the land in accordance with the plan of subdivision annexed to the letter from the respondent to the applicant dated 16 August, 1988.
3A. A declaration that in the events which have happened, Condition 21 to development consent 722/92 in respect of Lot 1 in DP 715388 Woronora:
(a) was validly imposed by the applicant;
(b) and may be validly imposed by the Court on appeal.
4. Such further and other relief as the nature of the case may require."
The council relies on its letter dated 21 October 1988 as an acceptance of the offers made to it by DTR:-
1. in the letter from the company dated 16 August 1988 and,
2. by a director of DTR as reported to council on 26 September 1988.
The council submits that the failure to dissent following communication of the resolution passed by council on 17 October 1981 amounted to acquiescence. The lodgement of the bank guarantee, the proposal put forward by DTR in its letters of 1 June 1989, the release and registration of the plan of subdivision of Lot 15 and the further letter to council dated 26 October 1989 all serve to reinforce that submission.
It is contended on behalf of council that at the time it resolved to prepare LEP 139 on 17 October 1988, the council was entitled to expect that if the southern section of Lot 1, DP 715388 was re-zoned in such a way as to permit residential development then the northern section bounded by the existing public reserve would be brought into public ownership by way of dedication to council without payment of compensation.
That expectation was properly based on the representations made.
That council relied on the representations and assumptions which arose, it says, is evident from the following extract from its letter dated 21 October 1988:-
"It was also resolved that you be informed that Council's continued support of the Draft Local Environmental Plan is subject to the following commitments being met:
(a) an amended subdivision application being lodged for adjoining Lot 15 providing constructed right-of-carriageway access to Council's reserve, as well as providing for future right-of-carriageway access to proposed Lot 2 over adjoining Lot 15 to cater for vehicle access in any future subdivision of the Lot 1, DP 715388; and
(b) provision for public pedestrian access to the public reserve being maintained in the location shown on the existing subdivision approval for Lot 15.
Subject to the Draft Plan being approved by the Minister for Planning following public exhibition, the dedication of that part of the land zoned 6(a) Open Space, provision of Council's right-of-carriageway over Lot 15 and the dedication and construction of pedestrian access to the public reserve will be accepted as satisfying the Section 94 Contributions for the equivalent of 6 lots on Lot 15 and Lot 1, DP 715338 combined."
DTR is alleged to have embraced the commitments by lodging the amended subdivision application.
Following recent decisions of the High Court (see Waltons Stores (Interstate) Ltd V Maher 164CLR 387; Foran V Wright 168CLR 385 and The Commonwealth V Verwayen 170CLR 394) it appears safe to say that there is "one overarching doctrine of estoppel rather than a series of independent rules" which allows this Court to do what is required, if it is otherwise within jurisdiction, to prevent detriment in appropriate circumstances.
Silence will support an equitable estoppel where it would be unconscionable to refrain from making a denial and leave the other party to suffer detriment (see Brennan J in Waltons at 428).
Deane J may have raised some doubt as to whether equitable estoppel can be pleaded as a cause of action (see Verwayen at 445) but, in this case, the amendments made to the application during the course of the hearing by the addition of paragraph 3A appear to have overcome that problem.
There is no claim based on the existence of a contract in the present case. Neither party believed that a formal legal relationship had been created. The council clearly considered that it was free to act independently by seeking to secure a title adverse to DTR. The tenor of the correspondence from DTR makes it clear that the company realised that the rezoning was not inevitable.
The council as the "innocent" party needs to show that it acted in some way on the basis of a false assumption or expectation and that in so doing it suffered a detriment. DTR as the "guilty" party must have induced the council to act on the assumption or expectation either overtly or by acquiescence. The detriment must be irreversible.
The object of the principle of estoppel is to permit the Court to prevent the detriment. It does not require in every case the making good of the assumption or expectation (see Waltons at 423 and 427; Verwayen at 415, 448, 461 and 487).
The principles to be applied are adopted from the following passage appearing in the judgement of Brennan J in Waltons at p 423:-
"The unconscionable conduct which it is the object of equity to prevent is the failure of a party, who has induced the adoption of the assumption or expectation and who knew or intended that it would be relied on, to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion. The object of the equity is not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfulfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon."
The assumption may be of fact or law present or future including the content of future conduct (see Deane J in Verwayen at 445).
It is necessary to examine the relevant belief, actions and position of the council to determine whether the council adopted the expectation as the basis of its actions in relation to the rezoning and thereby placed itself in a significant position of disadvantage if DTR is now permitted to insist on payment of compensation by denying that the dedication was a proper requirement under s.94 of the EPA Act (see Deane J in Verwayen at 444).
In 1983, the council resolved to change the zoning of the whole of Lot 1, DP 715388 to open space. At that time DTR, as purchaser under an uncompleted contract, put forward two options, neither of which was acted upon. The first option, if exercised, would have resulted in a donation to council of the land adjoining the reserve in lieu of "public gardens and recreational contribution".
In 1984 council received legal advice that its claim on the land was unlikely to succeed. This advice was confirmed in 1985.
In 1988 DTR successfully concluded a transfer of the land from the owners and then renewed the offer to dedicate the open space land if the balance was rezoned residential. This offer was accepted.
It was not until after DTR requested council to proceed with Draft LEP 139 following the release and registration of DP 791931 in September 1989 that council renewed its interest in proving that the land belonged to it in fee simple.
It was only when the Supreme Court proceedings failed that the council finally resiled from its pursuit of the land. It relented by proceeding with draft LEP 139.
A question arises at to whether council, by its actions, became disentitled to rely on the expectation that if the land was relevantly rezoned dedication of the open space land would follow.
In the letter of 16 August 1988 DTR pointed out that until recently the ownership of the land had been in dispute but that a transfer by the Holt Estate to DTR had been registered by the Land Titles Office. The council responded in its letter dated 21 October 1988 in a way that could only be predicated on DTR being the owner of Lot 1, DP 715388. That letter refers specifically to the dedication of "that part of the land zoned 6(a) Open Space" and to the prospect of a combined subdivision of Lot 15 and Lot 1 into 6 lots.
The preferred course for council, at all relevant times, was to retain the whole of Lot 1 as bushland. Objectors who responded to the exhibition of draft LEP 139 submitted that the existing zoning should be maintained to prevent adverse impact on the existing bushland and to maintain public access.
There is no evidence that council expressly communicated its primary objective to DTR but there is sufficient evidence from which an inference can be drawn that DTR was well aware of the reasons for the delay. Council may not have specifically challenged the title of DTR to the land prior to the commencement of the Supreme Court proceedings but DTR was well aware of council's claim. In May 1989, DTR itself had suggested that the title dispute be referred to the Supreme Court.
Council did not finally act by relying on the expectation that the land would be dedicated until it resolved on 16 July 1991 to support the rezoning and that no further action be taken to acquire Lots 1 or 2.
At that date nothing which DTR had done or omitted to do indicated to council that DTR did not stand by the original proposal. There has been no direct evidence to the contrary so that, having regard to all the circumstances, an inference is open (see Insurance Commissioner V Joyce (1948) 77CLR 39 and Jones V Dunkel (1959) 101CLR 298).
Mr Ayling for DTR argued that having regard to the actions of council it cannot be said that council acted reasonably in relying upon the assumption that the agreement was extant. The underlying fallacy in that argument is that council was not satisfied until Young J determined the matter that DTR was entitled to hold the fee simple. If council did own the land then rezoning and dedication pursuant to the agreement would not have been necessary. Indeed council might have been a party, albeit unwittingly, to alienating land to which the public were entitled without commensurate consideration. The agreement with DTR could only be implemented if it was beyond doubt that DTR owned the land.
If DTR is permitted to desert the undertaking to dedicate, the council will have foregone an opportunity to keep the whole of Lot 1 as undeveloped bushland in public ownership. If council now resumed the whole of the land it would be required to pay compensation.
If the zoning under SPSO had been maintained, the council may have been required to acquire the land only if the conditions in clause 18(1) and (2) could be satisfied.
If DTR is allowed to resile then council could be required to acquire proposed Lot 3 and pay compensation (cl.44 SLEP).
If DTR is prevented from resiling, then although only part of the land will become vested in the council as open space, no compensation will be payable.
In return for relinquishing the opportunity to bring the whole of the land into public ownership the council admittedly gained a benefit through the opportunity to acquire at least part of the land at no cost.
The liability for payment of compensation together with the foregone opportunity to keep all of the bushland would be relevantly a detriment to support an estoppel.
DTR is estopped from denying that the dedication of that part of the land zoned 6(a) Open Space is required to satisfy Section 94 contribution for the equivalent of 6 lots on Lot 15 DP 7109 and Lot 1 DP 715388 combined as proposed in its letter dated 16 April 1988 and reflected in the resolution of council on 17 October 1988.
The approval of the subdivision of Lot 1 following the rezoning attracted the dedication in order to satisfy the contribution to public open space in respect of the 6 lots created. Council was entitled to impose as a condition of consent that the land in the 6(a) zone be dedicated to council at no cost.
The payment of the s.94 contribution in regard to the subdivision of Lot 15 has been deferred by the lodgement of the bank guarantee. The bank guarantee must be released if dedication is effected.
The Court is not, in this case, bound to inquire in regard to the justification for the contribution because, on the one hand, council seeks to have the land dedicated as public open space, while on the other hand, DTR, by its own action, cannot be heard to say that the contribution is not reasonable. If the promise of dedication had not been forthcoming, the evidence shows that the whole of Lot 1 may have remained reserved pursuant to SPSO for local road or become Reservation 1(a) Open Space under draft LEP 60.
However, if necessary, the demand for the public open space can be readily identified as arising primarily from the loss of the southern section of bushland previously designated for public use and also as a consequence of the development of the residential lots on both sites.
JURISDICTION
Having decided that DTR is estopped in the manner described it is necessary to determine whether this Court has jurisdiction to make the declaration requested by the council.
S. 20(2) of the Land and Environment Court Act provides:-
"20.(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings -
(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law;
(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law;
(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function; and
(d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of an agreement referred to in subsection (3) (c)."
The EPA Act is an environmental law.
One of the functions conferred on the council by the EPA Act is to determine development applications.
The Court is asked to make a declaration in respect of the right of the council to claim dedication of the land as a condition of development consent pursuant to section 94 of the EPA Act in the exercise of its function to grant development consent.
Pursuant to s.39(2) of the Court Act, the Court can exercise that function on appeal.
Whether the estoppel creates a separate cause of action is not relevant to the relief claimed in 3A.
It is within the jurisdiction to make the declaration in regard to validity of condition 21 as claimed.
The Court makes the following declaration and order:-
1. That in the events which have happened, Condition 21 to development consent 722/92 in respect of Lot 1 in DP 715388 Woronora:
(a) was validly imposed by the applicant;
(b) and may be validly imposed by the Court on appeal.
2. Costs reserved.
3. The exhibits may be returned.
CLASS 1 APPLICATION
In the event of the Court having found in its favour in the class 4 proceedings, the council merely seeks to maintain the conditions of consent in the Notice of Determination dated 20 July 1992 except condition 20 which was not pressed.
Submissions were advanced on behalf of council in regard to the merits of the application.
These submissions only have any relevance if condition 21 had is beyond power.
The applicant argued that as there had been no attempt to justify the dedication pursuant to section 94 of the EPA Act then consent should be granted without that condition.
The question of the estoppel operating to prevent the applicant relying on a challenge to the dedication as a section 94 contribution has been dealt with.
I have made passing reference to justification for the requirement.
The development the subject of the development application has been facilitated by the rezoning of the land comprised in Lots 1 and 2 of the proposed subdivision. Previously the reservation of that land for future road would have ensured the preservation of that land to facilitate access to the existing public reserve within Portion 58. The maintenance of the road reservation would also have facilitated preservation of and access by the public to natural bushland existing on the land.
The proposed rezoning under draft LEP 60 would have achieved the same benefits.
The use of Lots 1 and 2 for residential development will give rise to a demand for public open space.
The dedication of Lot 3 will go towards meeting the demand created for public open space as a consequence of the development on the former Lot 15.
Dedication of Lot 3 will entitle DTR to a release of the bank guarantee in the sum of $7,425 furnished to enable to release of DP 791931.
Condition 21 will be maintained.
Condition 20 will be deleted.
The Court makes the following orders:-
1. The appeal is dismissed.
2. Development Application 722/92 in respect of Lot 1 DP 715388 Woronora Crescent, Como for subdivision into three allotments is approved subject to the conditions in Notice of Determination of Development Application dated 20 July 1992 except condition 20.
3. The exhibits may be returned.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 24 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGEMENT HEREIN OF THE HONOURABLE MR JUSTICE TALBOT
ASSOCIATE