The case of Lismore City Council v Ihalainen (No 2)  NSWLEC 198 illustrates the problem when a development consent does not expressly identify all approved plans and plans are not all stamped with the approval and cross referenced to the development consent.
The case concerned an unsuccessful prosecution in relation to the construction of a fire trail required by a condition of the consent. One of the charges (development carried out not in accordance with development consent) involved consideration of whether a consent incorporated a plan showing the alignment of an access track. The Court was not satisfied, to the criminal standard, that the plan was incorporated.
The Council submitted that the relevant consent had enclosures comprising five (5) plans. The Court concluded that plans 1, 2 and 3, being detailed plans of the approved dwelling, were incorporated into the consent though only the first had a council approval stamp. Plan 4 was a plan of subdivision showing the approximate location of the proposed dwelling and Plan 5 was an aerial photo site plan. The Court considered that unless Plan 4 was enclosed and incorporated into the Consent it is impossible to give effect to the condition 11 which provides that the location of the dwelling must be established by a Registered Surveyor. There is some force in the view that Plan 5 was also “in the same basket”. The Council development compliance officer gave evidence that when he inspected the Council’s file, the 5 plans were stapled together behind the copy of the notice of determination however Biscoe J had doubt that the plans were all stapled when the consent was granted.
The judgment applied the “incorporation principles” which are summarised as follows:
- As a general rule, a development consent, being a public document operating in rem for the benefit of third parties, such as successors in title and security holders, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it.
- However, plans and other documents may be incorporated in a development consent expressly or by necessary implication.
- A document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent, will for that reason be expressly incorporated in the consent.
His Honour reasoned as follows:
“113 Two principles loom large. The first is the enduring function of a development consent as a document in rem in which third parties, such as successors in title and security holders, have an interest. The second is that lack of clarity or certainty is the responsibility of the council as the consent authority and it must take the consequences of any failure to spell out accurately or in detail what is consented to as well as any conditions to which a consent is subject. The in rem question as between a council and third parties is whether a third party searcher of the council’s development consent records would know from the search that a particular plan was enclosed with and incorporated into a consent as an approved plan. That is an objective question. The third party searcher should not have to speculate from the records; nor have to hunt down and interrogate the person who signed the notice of determination of the development consent or the person who put it in an envelope to mail it to the applicant or the recipient of the notice – all of whom may be long gone. …
114 In the present case, given the state of the whole of the evidence, I have a reasonable doubt as to whether the Site Plan was enclosed with and incorporated into the Consent.”
This case provides an important lesson for councils to take care when granting development consent so as to ensure that it is explicit and abundantly clear if a document such as a plan is incorporated in the consent.
Note: This information is not to be relied upon as legal advice.