P & R VOZZO NOMINEES P/L & ANOR v DISTRICT COUNCIL OF THE COPPER COAST [2011] SAERDC 4 (1 February 2011)

Last Updated: 4 February 2011

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

P & R VOZZO NOMINEES P/L & ANOR v DISTRICT COUNCIL OF THE COPPER COAST

[2011] SAERDC 4

Judgment of Her Honour Judge Cole

1 February 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against a notice issued under s 84 of the Development Act 1993 - collateral challenge to Land Management Agreement - waiver of Land Management Agreement - notice quashed.

Development Act 1993; Environment, Resources & Development Court 1993; Local Government Act 1999; Real Property Act 1886, referred to.

Jacobs v One Steel Manufacturing Pty Ltd and WorkCover Corporation of SA [2006] SASC 32; Tarca and the District Council of Stirling v Hambrook (1995) 86 LGERA 56; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 195 ALR 502; Jolly v District Council of Yankalilla [2006] SASC 53; (2006) 143 LGERA 428, considered.

P & R VOZZO NOMINEES P/L & ANOR v DISTRICT COUNCIL OF THE COPPER COAST
[2011] SAERDC 4

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter is an appeal against a notice issued by the District Council of the Copper Coast (the Council) pursuant to s 84 of the Development Act 1993 (the Act) against P & R Vozzo Nominees Pty Ltd (Vozzo Nominees) and Crown Equity Pty Ltd (Crown Equity). The parties requested that the Court, at this stage, decide some but not all of the issues raised in the notice of appeal. This decision relates only to those issues.
2. At the hearing of the matter, affidavits of Mr Fantasia, a town planner, Mr Minicozzi, a solicitor, Mr Roberto Vozzo and Mr Pasquale Vozzo were tendered in evidence, and Mr Fantasia and Mr Venuti gave evidence in the appellants’ case. In the respondent’s case, an affidavit of Mr Dinning, the Chief Executive Officer of the Council, was tendered in evidence. Numerous documents were tendered in evidence by consent. Mr Roder SC appeared as counsel for the appellants and Mr Henry SC appeared as counsel for the Council.

The Facts

3. The facts relevant to the issues in this matter are largely undisputed.
4. Immediately prior to 3 September 2002, Section 1853 Hundred of Wallaroo, Port Hughes (Section 1853), was a single parcel of land owned by Mr Butler. On 3 September 2002 Mr Butler entered into a contract to sell Section 1853 to Venuti Nominees Pty Ltd (“Venuti”). On or about 25 September 2002, Venuti applied to the Council for approval to divide Section 1853 into 21 Community Title allotments (I will refer to this application, including the subsequent amendments to it, as “the division application”). Pursuant to the Act, the Council granted development approval to the proposed land division on 5 March 2003. Subsequently, an amended plan creating 19 community title allotments was submitted, and this was the plan with which Venuti proceeded.
5. On 29 May 2003, an agreement was executed by the Council and Venuti (the Agreement). The Agreement related to the whole of Section 1853. The Agreement was treated by the Council and Venuti as a land management agreement under the Act. It is apparent from the documents tendered (exhibit R3) that, when the community titles were created, the Agreement was noted by the Registrar-General as a land management agreement against each of the individual community title allotments, but not on the common property or on the reserves which were transferred to the Council. Much of the present dispute concerns the characterisation of the Agreement, which will be discussed in detail below. The Agreement was referred to in the evidence, the correspondence and in much of the argument as “the land management agreement”.
6. Venuti transferred lot 16 to Trevor Smith Constructions Pty Ltd on 5 January 2004. Trevor Smith Constructions Pty Ltd transferred lot 16 to Vozzo Nominees (ninety-nine undivided one hundred parts) and Maria Lanzoni (one undivided one hundred part) on 3 October 2006. Vozzo Nominees and Maria Lanzoni transferred lot 16 to Vozzo Nominees and Crown Equity in half shares on 21 February 2009.
7. By application 340/345/08 dated 16 April 2008 and registered by the Council on 22 April 2008 (the dwelling application), DC Architecture, acting on behalf of Vozzo Nominees and Crown Equity, applied for development approval to build a dwelling on lot 16 of the subdivision undertaken by Venuti. The community titled allotment the subject of the dwelling application is described variously as 10 South Terrace Port Hughes and lot 16 South Terrace Port Hughes (the allotment). The allotment is 367m² in area. The allotment’s principal frontage is to South Terrace on its northern boundary. The eastern and southern boundaries abut Butler Crescent, and the western boundary abuts Lot 17. The dwelling applied for has a garage accessible via a driveway from the southern, Butler Street, boundary. The plans label this as the “lower floor”. The “ground floor” on the plans has a five metre setback to the South Terrace frontage and a 2.8 metre side setback for the main building to Butler Street on the eastern boundary, into which a barbeque area protrudes up to 1.3m from the boundary. The rear set back appears to be in the order of 2.4m at the closest point. The western wall of the house is on the western boundary. The “first floor plan” shows a “deck” protruding into the five metre setback to South Terrace so that the front edge of the “deck” is 3.5m from the South Terrace boundary. There is a “roof plan” which shows that much of the roof is to function as a deck with a low wall to all sides. The section plans show that the allotment slopes downwards from north to south. It appears from the section plans that it is intended to fill the northern half of the allotment to the highest point of ground level on the allotment, and then to excavate the southern portion of the allotment to the lowest point of ground level on the allotment. In that way, the lower ground floor garage is to be accommodated. The building is to have a lift, and the lift shaft protrudes above the roof deck. The height of the building from the floor of the lower ground floor (ie, the garage) to the roof deck is 9.4 metres. The height of the building from the floor of the lower ground floor to the top of the lift shaft is approximately 13 metres. The difference between the height of the lower ground floor and the ground floor is 3 metres.
8. Mr Fantasia gave evidence that he became involved in the matter in June 2008, when the appellants’ architect approached him. His role was to advise the appellants in relation to town planning matters, and to liaise with Council officers on behalf of the appellants. Mr Fantasia telephoned Ms Barr, a Council officer, shortly after receiving instructions, to discuss a suggestion which had been made to the architect that the proposed dwelling was a non-complying kind of development under the Act. Mr Fantasia said that Ms Barr confirmed Mr Fantasia’s assessment that the proposed dwelling was not a non-complying form of development. Mr Fantasia then considered the provisions of the Development Plan further, and the provisions of the land management agreement. In his affidavit, he gave this account of what followed:
   13. I then arranged to:

13.1 undertake a site inspection with the director of the Appellants (Pasquale Vozzo) and Damian Campagnaro, and
13.2 meet Fiona Barr at the Council offices at Kadina to discuss the matter.

14. On or about the 24th July 2008 I:

14.1 attended upon the land and conducted a site inspection with Pasquale Vozzo and Damian Campagnaro, and then
14.2 attended at the Respondent’s offices at Kadina and met with Fiona Barr regarding the nature of the Development Application, the implications of the LMA and in particular the following issues:
14.2.1 whether the allotment ought to be regarded as a corner allotment and if so whether the primary frontage of the allotment was to South Terrace. In this regard Fiona Barr indicated to me that she considered the subject land a corner allotment and it was reasonable to proceed on that basis that South Terrace was the primary frontage of this corner allotment. This was important because the frontage to Butler Crescent met the LMA for secondary setbacks and the frontage to South Terrace met the LMA specifications for primary setbacks other than the first floor decking and balcony. It was my experience at the time, that the practice of councils differed as to whether they assessed or were concerned with setback infringements which related to balcony and decking only.
14.2.2 the height of the proposed building. This issue which I discussed with Fiona Barr was that the fact or extent of non-compliance depended upon which part of the proposed dwelling was being considered, because of the sloping nature of the site. It seemed to me that it was likely, that the Council may make some accommodation on that basis.
14.2.3 the extent of the setback from the wall of the proposed dwelling to the western boundary of the site. A portion only of the proposed western wall extended to that boundary. I discussed with Fiona Barr the extent of departure which Council would be prepared to tolerate in all of the circumstances.

15. At that meeting, Fiona Barr advised that:

15.1 she would reconsider [sic] to the LMA provisions having regard to the Development Plan.
15.2 she would review all issues and identify the extent of departure from the LMA which would be acceptable to Council.
15.2 she would inform me as to the process to deal with the Development Plan and the LMA in this case.

16. I did not hear from Fiona Barr for some time after this meeting.
17. On 26 August 2008 I sent an email to Fiona Barr for an update in relation to the matter.
18. On that same day, I received a telephone call from the architect advising that a planning consent had been granted by the Council.
19. I was surprised by that as I had expected Fiona Barr to come back to me in relation to the matters that we had discussed in July 2008 before approving the development application.
20. After receiving that advice from the architect I rang Fiona Barr. I recall specifically asking her whether there was anything else that needed to be done about this Application and her clear response was that no further action was required unless there was a variation to the plans or the Application. She further advised that it was okay to proceed with Building Drawings.
21. My notes record that “made contact” with FB who advised she was okay with the dwelling in terms of DP and LMA and extent of departure from LMA warranted and therefore issued the consent. No further action required unless there are variations. Okay to proceed with building drawings and DA.”
22. On the basis of that advice I called the architect and Pasquale Vozzo and informed them of the discussion with Fiona Barr.
9. From the documents tendered, it appears that the Council granted development plan consent to the proposed dwelling on 18 August 2008, subject to 11 conditions.
10. On 3 September 2009, the Council granted an extension of the development plan consent until 18 August 2010. It seems that amended plans were subsequently submitted to the Council, and the Council issued a further development plan consent in relation to those amended plans on 21 October 2009. This consent was subject to 10 conditions. The decision notification form in relation to the Council’s decision of 3 September 2009 and the development plan consent of 21 October 2009 both included, in a section after the conditions headed “Notes”, among other things, these words:

That the applicant/owner/builder comply with the terms of the Land Management Agreement unless varied by this Development Approval.

11. Development Approval was granted in relation to the amended plans on 5 November 2009, subject to 10 planning conditions and 4 building rules consent conditions. The note quoted above appeared on the decision notification form in relation to the development approval of 5 November 2009. Construction began, in reliance upon this development approval.
12. Hamdan Lawyers, acting on behalf of the owners of lot 15 South Terrace Port Hughes, wrote to the Council and Vozzo Nominees on 24 December 2009 expressing concerns about “the construction currently underway at lot 16 Butler Crescent Port Hughes” (clearly intended to be a reference to the allotment). Among other things, Hamden Lawyers said that the owners of lot 15 were concerned that the structure being constructed at the allotment would contravene clauses of the land management agreement concerning setbacks (clause 3.4) and dwelling height (clause 3.11).
13. The letter from Hamdan Lawyers was drawn to Mr Minicozzi’s attention. Mr Minicozzi, acting for the appellants, wrote to the Council on 14 January 2010 seeking an urgent indication as to the Council’s attitude to the letter from Hamdan Lawyers. Mr Minicozzi also wrote to Hamdan Lawyers on 14 January 2010, putting his clients’ view that the dwelling being constructed would not breach the land management agreement and that, in any event, the development approval constituted a waiver of compliance with clauses 3.4 and 3.11 of the land management agreement “where appropriate”.
14. On 15 January 2010, Griffin Hilditch, the solicitors for the Council, wrote to Hamdan Lawyers. Among other things, in its letter to Hamdan Lawyers, Griffin Hilditch said:

Council ... notes that terms of the relevant Land Management Agreement (“the LMA”) dated 29 May 2003 (copy enclosed).
Clause 7.2.5 of the LMA provides
“7.2.5 The Council may waive compliance by the Owner with the whole or any part of this obligation on the part of the Owner herein contained (and any such request for waiver will not be refused unreasonably) provided that no such waiver shall be effective unless expressed in writing and signed by the Council.”
It is also noted that Clause 7.2.4 of the LMA provides for variation of the LMA as follows:
“This Agreement may not be varied except by a Supplementary Agreement signed by the Council and the Owner.”
There is no Supplementary Agreement varying the LMA and no formal request has been made to waive any provisions of the LMA by the Owners. If the Owners sought to develop that land in a manner which contravenes the LMA, they would need an approved waiver under 7.2.5 above or a formal variation of the LMA pursuant to 7.2.4.
In any event in Council’s view neither the tiled roof terrace nor the garage/cellar can be described as “storeys” within the ordinary meaning of the term nor within the LMA. Furthermore the approved building (excluding the deck at first floor level) is set back at least 5 metres from the primary road boundary.

15. On 25 February 2010, Mr Fantasia wrote to the Council:

We advise that the applicant DC Architecture and the owners P & R Vozzo Nominees Pty Ltd we [sic] were not aware:
- that the granting of the approval for the dwelling by Council did not also constitute an approval for a variation of the provisions of the LMA; and
- that they were required to make a separate application for variation pursuant to Clause 7.2.4.
I hereby submit a formal request for a variation of the LMA pursuant to Clause 7.2.4 in relation [sic] the clauses 3.4 (street setbacks), 3.5 (side boundary setback) and 3.11 (building height) to provide for:

• Street setbacks of 5.6 metres from South Terrace, varies 1.4 metres to 3.750 from west façade to Butler Crescent. Varies 2.45 metres and 4.7 metres from south façade to Butler Crescent.
• The wall to be built to the side boundary; and
• With an overall height of 9.35 metres on the north façade and 10.6 metres on the south façade.

These variations to the requirements of the LMA are considered to be minor in nature and are unlikely to have any detrimental impacts on the adjoining and surrounding properties.

16. On 22 June 2010, the Council wrote to Vozzo Nominees, referred to the building work, to the land management agreement and to Mr Fantasia’s letter of 25 February 2010 and said:

Council has not waived compliance with the provision of the LMA pursuant to clauses 7.2.5 and accordingly you are in breach of the LMA.
Please note the powers of Council pursuant to clause 7.2.3 of the LMA.
All building work should cease forthwith until Council considers Mr Fantasia’s application and until compliance with the relevant provisions of the LMA is waived by Council. Please note that Council may refuse to waive compliance with all or any provision of the LMA.

17. It was common ground that the statement in the letter that “all building work should cease forthwith” was not an exercise of any statutory power, but was simply a request that the building work cease.
18. There followed a considerable volume of email correspondence, much of it initiated by Mr Minicozzi, who was seeking, among other things, to have the Council decide the application for a waiver.
19. On the 23 July 2010, the Council wrote to Vozzo Nominees. The letter said, in part:

Development Application No. 340/345/08 breaches the terms of the LMA in the following manner;

1. The building is not sited 5.0 metres from the primary street alignment or 1.5 metres from the secondary street alignments (clause 3.4), the setbacks being nominally nil to all streets.
2. The building is not setback 1.2 metres from the other side boundary (not being a road alignment), rather it is located on the common boundary to the west.
3. The building stands 2 storeys or 12.5 metres in height, significantly in breach of the 2 storey or 9 metre height imposed in clause 3.11.

The breaches are substantial and lead to a building form, scale, siting and appearance which are significantly at odds with and have an impact on the adjoining development well in excess of what may have arisen from a development in compliance with the terms of the LMA.
You are hereby advised that Council is not prepared to vary the terms of the LMA as sought.

20. After some further correspondence, the Council served a notice upon Vozzo Nominees and Crown Equity Pty Ltd pursuant to s 84 of the Act (the notice). The notice read as follows:

WHEREAS:

1. You are the Registered Proprietors of the land described as Lot 16 in Primary Community Plan 22020 in the area named Port Hughes in the State of South Australia being the land comprised in Certificate of Title Register Book Volume 5909 Folio 186 (“the Land”).
2. On 29 May 2003 the Council entered into a Land Management Agreement pursuant to section 57 of the Development Act 1993 (“the Act”) with Venuti Nominees Pty Ltd ACN 008 286 851 of 45 Kanangra Road, Dernancourt being LTO Document Number AG 9616330 (“the LMA”).
3. The LMA has been noted against Certificate of Title Register Book Volume 5909 Folio 186 and is binding upon the Owners.
4. On 5 November 2009, the Council granted development approval in respect of DA 340/345/08 (“the Application”) for a development to be undertaken on the Land described as “Two storey dwelling and garage (UMR)” (“the Approval”).
5. The development the subject of the Approval contravenes the LMA as detailed below.
6. The Council has not at any time agreed to vary the LMA by a Supplementary Agreement signed by the Council and the Owners in accordance with Clause 7.2.4 of the LMA.
7. You have commenced the undertaking of development on the Land pursuant to the Approval in contravention of the LMA without first seeking and obtaining the required written variation of the LMA by Supplementary Agreement.
8. The Council has reason to believe on reasonable grounds that you have breached the Act in that you have contravened, and threaten to further contravene, the LMA by continuing to undertake the development the subject of the Approval.
9. Details of the Breaches

You have contravened the LMA in that you have:
9.1 Undertaken development contrary to Clause 3.4 of the LMA by constructing a building within five (5.0) metres of the road boundaries of each of South Terrace and Butler Crescent; and
9.2 Undertaken development contrary to Clause 3.5 of the LMA by constructing a dwelling closer than one point two (1.2) metres to the western side boundary of the Land; and
9.3 Undertaken development contrary to Clause 3.11 of the LMA by constructing a dwelling which exceeds two (2) storeys and which also will exceed a height of nine (9) metres measured from the lowest floor level to the finished roof height at its highest point above the floor level.
DIRECTION:

10. You are hereby directed to refrain from undertaking any further building works on the land pursuant to the Approval until further notice.
21. The notice was received by Vozzo Nominees and Crown Equity on or about 30 August 2010.
22. Work on the dwelling stopped in response to the notice. The appellants are in receipt of invoices in respect of the work performed prior to the service of the notice totalling $764,551.31.
23. It was conceded that the building work performed in reliance upon the development approval of 5 November 2009 was not entirely in compliance with the requirements of the Agreement. It is not necessary at this stage of the proceedings, for the purpose of dealing with the issues argued, to determine precisely the extent of the non-compliance.

The Appeal

24. Vozzo Nominees and Crown Equity appealed to this Court against the notice. The grounds of appeal in the notice of appeal were as follows:
    1. The Notice is defective, and ought be quashed, for reason that the Council has not specified or particularized in the Notice which provision of the Development Act it alleges the Appellant has contravened, which specification or particularization is necessary before the Council may validly impose a direction pursuant to Section 84.
    2. The Notice is defective, and ought be quashed, for reason that the Council has not formed the requisite consideration that it is either necessary or appropriate in the circumstances that the direction contained in the Notice be issued, which consideration is necessary before the Council may validly impose a direction pursuant to Section 84.
    3. The Notice is defective, and ought be quashed, for reason that the Appellant has not breached the Development Act.
    4. The Notice ought be quashed, for reason that it is not necessary or appropriate in the circumstances for the Notice to be issued.
25. The pre-trial process in this matter resulted in the filing of amended particulars of the grounds of appeal for this hearing. Those grounds are as follows:
    1. The agreement relied upon by the Council (the agreement) is not a “land management agreement” (“LMA”) within the meaning of Section 57 of the Development Act 1993 (the Act).
    2. The purported LMA is not an LMA because the agreement was not with the “owner” of the land within the meaning of Section 57 of the Act.
    3. Alternatively, the purported LMA is not an LMA within the meaning of Section 57 of the Act because the registered proprietor’s consent to the LMA was not obtained.
    4. The LMA is not an LMA within the meaning of the Development Act because the exercise of power under Section 57 of the Act was not authorised by resolution or delegated authority by the Respondent.
    5. The agreement did not relate to the “management, preservation or conservation” of the land as stated in the Recital to the agreement.
    6. Further the agreement did not relate to the “development” of land within the meaning of section 57(2) of the Act.
    7. Further and in the alternative it must be inferred from the Recital to the agreement that the only matters considered by the Council were those referred to in the Recital and that the Council did not have regard to the matters referred to in section 57(2a) of the Act.
    8. Further the agreement was not a land management agreement because it was entered into for an improper purpose, to spot zone land subject to a subdivision so as to prevent future development on the land even though it complied with the Development Plan.
    9. Further it is implicit in the Act that the Appellant may undertake a lawfully approved development and cannot be prevented from doing so by an agreement.
    10. deleted
    11. Alternatively, the provisions of the agreement were waived by the Council by its conduct and by the issue of the Provisional Development Plan Consent and the notes thereto.
    12. Alternatively the Council is estopped from enforcing the agreement in all the circumstances of this case and particularly the matters referred to in paragraph 10.

THE ISSUE OF THE NOTICE IS NOT NECESSARY OR APPROPRIATE

13. Further, and in the alternative it is not necessary nor appropriate to issue the Notice having regard to;
    1. The grant of the PDPC by Council, the notes attaching to the PDPC and conversations between the Council and the Appellant prior to and on granting the PDPC.
    2. Council’s conduct subsequent to the grant of the PDPC including its delay
    100. The prejudice to the Respondent;
14. Alternatively the Court should, as a matter of discretion, quash the Notice for the reasons expressed above.

The Legislation

26. The provisions of the Act in relation to land management agreements are contained in Part 5 of the Act. The Agreement in issue in this matter was entered into purportedly pursuant to s 57, which provides as follows:

57—Land management agreements
...
(2) A council may enter into an agreement relating to the development, management, preservation or conservation of land within the area of the council with the owner of the land.
(2a) The Minister or a council must, in considering whether to enter into an agreement under this section which relates to the development of land and, if such an agreement is to be entered into, in considering the terms of the agreement, have regard to—
(a) the provisions of the appropriate Development Plan and to any relevant development authorisation under this Act; and
(b) the principle that the entering into of an agreement under this section by the Minister or a council should not be used as a substitute to proceeding with an amendment to a Development Plan under this Act.
...
(4) An owner of land must not enter into an agreement under this section unless all other persons with a legal interest in the land consent.
(5) The Registrar-General must, on an application of a party to an agreement made for the purposes of this section, note the agreement against the relevant instrument of title or, in the case of land not under the provisions of the Real Property Act 1886, against the land.
(6) An agreement under this section has no force or effect under this Act until a note is made under subsection (5).
(7) Where a note has been entered under subsection (5), the agreement is binding on the current owner of the land whether or not the owner was the person with whom the agreement was made and notwithstanding the provisions of the Real Property Act 1886.
...
(12) The existence of an agreement under this section may be taken into account when assessing an application for a development authorisation under this Act.

27. The Act provides, in s 83:

83 Interpretation—Breach of Act
In this Division, a reference to a breach of this Act is a reference to—
(a) a contravention, or threatened contravention, of this Act, other than, in relation to the Crown, or an agency, instrumentality, officer or employee of the Crown, the Building Rules; or
(b) a contravention, or threatened contravention, of an agreement under Part 5.

28. The following provisions of the Act relate to s 84 notices:

84—Enforcement notices
(1) In this section—
relevant authority means—
...
(b) a council;
...
(2) If a relevant authority has reason to believe on reasonable grounds that a person has breached this Act or a repealed Act, the relevant authority may do such of the following as the relevant authority considers necessary or appropriate in the circumstances:
(a) direct a person to refrain, either for a specified period or until further notice, from the act, or course of action, that constitutes the breach;
(b) direct a person to make good any breach in a manner, and within a period, specified by the relevant authority;
(c) take such urgent action as is required because of any situation resulting from the breach.
(3) A direction under subsection (2) must be given by notice in writing unless the relevant authority considers that the direction is urgently required, in which case it may be given orally by an authorised officer.
...
(6) If a person fails to comply with a direction under subsection (2)(b) within the time specified in the notice, the relevant authority may cause the necessary action to be taken.
...
(9) An appeal against a notice under this section must be commenced within 14 days after the direction is given to the appellant unless the Court allows a longer time for the commencement of the appeal.
...
(11) A person who contravenes or fails to comply with a direction under this section is guilty of an offence.
Maximum penalty: $20 000.
Default penalty: $500.
Expiation fee: $750.
(12) A direction cannot be given under this section if it appears that the breach occurred more than 12 months previously.
86—General right to apply to Court
(1) The following applications may be made to the Court—
...
(d) a person who has—
...
(ii) been served with an enforcement notice under section 84;
...
may appeal to the Court against the notice or order;

29. The powers of the Court in these proceedings are provided for both in the Act and in the Environment, Resources and Development Court Act 1993:
30. The Act provides:

88—Powers of Court in determining any matter
(1) The Court may, on hearing any proceedings under this Act—
(a) confirm, vary or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceedings relate;
(b) affirm, vary or quash any order, notice or other authority that has been issued;
(c) order or direct a person or body to take such action as the Court thinks fit, or to refrain (either temporarily or permanently) from such action or activity as
the Court thinks fit;
(d) if appropriate to the subject matter of the proceedings, order—
(i) that a building (or any part of a building) be altered, reinstated or rectified in a manner specified by the Court;
(ii) that a party to the dispute remove or demolish a building (or any part of a building);
(da) if appropriate in the circumstances of the proceedings—make any determination or declaration, or grant any other remedy or relief as the Court thinks fit;
(e) make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient.

31. Sections 83, 84, 86 and 88 are all contained in Part 11 of the Act.
32. The Environment, Resources and Development Court Act 1993 provides:

28—Declaratory judgments
The Court may, on matters within its jurisdiction, make binding declarations of right whether or not any consequential relief is or could be claimed.
28C—Alternative orders
Although a particular form of order is sought by an applicant in proceedings before the Court, the Court may make any other form of order that it considers more appropriate to the circumstances of the case.

Collateral Challenge

33. The three breaches of the Act relied upon to found the s 84 notice are all breaches of the Agreement (see s 83(b) of the Act). The appellants attacked the characterisation of the Agreement as a land management agreement under the Act. Mr Roder argued that the Agreement was nothing more than a contract between its parties, and could not therefore be the foundation for an allegation of a breach of the Act. Mr Roder argued that the Agreement did not qualify to be noted on the title pursuant to s 57(5), and should not have been so noted, and the Agreement should have no effect beyond its operation as a private contract. Mr Roder argued that the Agreement was not a valid land management agreement for the following reasons, which are based upon the amended particulars of the grounds of appeal:
    1. A Council can only enter into a land management agreement with the owner of the land, and at the time that the Agreement was executed, Venuti was not the registered proprietor of the estate in fee simple; Mr Butler was.
       
    2. The Act requires, in s 57(4), that an owner of land must not enter into a land management agreement unless all other persons with a legal interest in the land consent to it. Even if Venuti’s interest in the land, at the date of the execution of the Agreement, were sufficient to enable it to enter into the Agreement, Mr Butler, who was at that time the owner of the legal estate in fee simple, did not consent to it.
       
    3. No resolution of the Council resolving to enter into the Agreement was passed, and no officer of the Council, at the relevant time, had delegated power to decide to enter into the Agreement on the Council’s behalf. There was no resolution authorising the affixing of the Council’s seal to the Agreement as required by s 38 of the Local Government Act 1999.
       
    4. The Council did not consider all of the matters it was bound to consider pursuant to s 57(2)(a) prior to executing the Agreement.
       
    5. Recital E to the Agreement said that it related to the future management, preservation or conservation of the whole of the land, and in fact, it did not.
       
    6. Entry into the Agreement was beyond the power of the Council under the Act. The Council’s power to enter into an agreement in relation to the future development of land is confined to a particular development.
       
    7. The Council entered into the Agreement for an improper purpose, namely the imposition of a set of planning controls which were not planning controls authorised under the Act. In other words, the intention of the Agreement was that it operate as a common building scheme, which is a purpose beyond the purpose for which the Act intended that land management agreements be used.
       
34. The attack on the validity of the Agreement as a land management agreement was by way of a collateral challenge. In considering the collateral challenge, the first question which arises is the question of what administrative act of the Council’s is being challenged. On the face of it, the Council has entered into a land management agreement which has then been noted on the title pursuant to s 57(5) of the Act. A land management agreement is effective on several levels. It evidences entry into a private contractual relationship enforceable by the parties to the land management agreement as a matter of private contract law. It is also the creation of an instrument which, upon registration on the Council register (s 57(2b)) together with noting by the Registrar-General against the title to the land (s 57(6)), binds successive owners of the land, notwithstanding the fact that they are not parties to the agreement, and a breach of the agreement also becomes a breach of the Act (s 83(b)). The entry into a land management agreement by a council therefore has the character of an administrative act for some purposes, and it is for those purposes that the Council in this matter relies upon the Agreement.
35. The appellants, as successors in title to the original contracting party, challenge the validity of the land management agreement. The Act provides no mechanism for successors in title to challenge a land management agreement by way of a merits appeal, or in any other way. In principle, there is no reason why, in relation to the nature of the document, the validity of a land management agreement could not be challenged by way of an application for judicial review or by means of a collateral challenge in proceedings such as these. The grounds for the challenge set out by Mr Roder relate to jurisdictional matters and are grounds appropriate for a collateral challenge.
36. There are, however, additional factors which need to be considered in an assessment of whether this Court should entertain a collateral challenge of this kind in these proceedings. Some of these were set out, albeit in a very different factual context, in Jacobs v One Steel Manufacturing Pty Ltd and WorkCover Corp of SA[1], by Besanko J:
    1. Are the grounds of challenge likely to involve the adducing of substantial evidence?
    2. If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?
    3. In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?
    4. Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?
    5. Is the issue raised by the collateral challenge clearly answered by authority?
    6. Are there other cases pending which raise the same issue?
    7. (Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted.
37. In the particular circumstances of this case, I do not think that it is appropriate for this Court to make a determination or orders in relation to the validity of the Agreement as a land management agreement in these proceedings for the following reasons:
    1. The principal reason is the amount of time which has elapsed since the Agreement was noted on the titles in the community land division on 8 December 2003, more than seven years ago. The time limit for the bringing of judicial review proceedings in the Supreme Court is six months. Vozzo first obtained part ownership of the land on 3 October 2006, and Vozzo and Crown Equity became joint owners on 21 February 2009.
       
    2. As I will set out in some detail below, the process by which the Agreement came into existence is inextricably bound up in the granting of development approval to the division application, and the appellants (and others) enjoy the benefit of that approval as the owners of the allotments created.
       
    3. There are 18 other allotments in the subdivision which have the Agreement noted on their titles. Those owners are not parties to this action, and may not be aware of it.
       
    4. Venuti is not a party to this action.
       
    5. Other dwellings have been built in the subdivision in the past 7 years.
       
    6. It may be that a range of development, administrative and commercial decisions have been made during the past 7 years which have been influenced by the existence or operation of the Agreement as a land management agreement.
       
    7. I have been provided only with documentary evidence in relation to the points raised by the collateral challenge. There is no evidence before me of the discussions and correspondence which are likely to have taken place between the parties to the Agreement. Apparent deficiencies in the Council records, as they have been presented in these proceedings, have not been explained.
       
38. For all of those reasons, I decline to make any declaration or other order as to the validity of the Agreement as a land management agreement, or to treat it as void for the purpose of this appeal against the s 84 notice.
39. In case I am wrong about that, I will consider the grounds upon which the operation of the Agreement as a land management agreement was challenged.

The Grounds of Challenge to the Land Management Agreement

40. 1. A council can only enter into a land management agreement with the owner of the land, and at the time that the Agreement was executed, Venuti was not the registered proprietor of the estate in fee simple; Mr Butler was.
41. The Act provides, in s 57(2), that a council may enter into an agreement with the owner of the land (my emphasis). “Owner” is defined in s 4 of the Act, and the relevant part of the definition is:

(b) if the land is alienated from the Crown by a grant in fee simple – the owner of the estate in fee simple.

42. The Act, in s 57(13), says:

(13) In this section –
“owner” of land includes –
(a) a person who has the care, control or management of a reserve; or
(b) a mortgagee in possession of the land.

43. Clearly, the definition in s 57(13) is intended to be additional to the definition in s 4.
44. Among the documents tendered in evidence was a copy of the contract for the sale of Section 1853 by Mr Butler to Venuti, dated 3 September 2002, and a copy of the transfer of Section 1853 from Mr Butler to Venuti, dated 14 April 2003. The Agreement, on the face of it, was executed under seal by the Council and Venuti and dated 29 May 2003. The endorsement on the memorandum of transfer indicates that the transfer was registered on 16 October 2003. The Agreement was noted on the title to Lot 16 on 8 December 2003, pursuant to s 57(5) of the Act.
45. Mr Roder argued that the Agreement was not a land management agreement pursuant to s 57 of the Act, because, at the time that it executed the Agreement, Venuti was not the owner of the estate in fee simple of either Section 1853 or Lot 16; in other words, the transfer from Mr Butler had not, at that time, been registered.
46. Mr Venuti, a director of Venuti, gave evidence. He said that he did not discuss the Agreement with Mr Butler, or seek his consent to it, as he saw no reason to do so. Mr Venuti recalled the purchase of Section 1853 as having proceeded in accordance with normal practice. There was no evidence of the date of settlement upon the contract, although it clearly must have been on or before 16 October 2003.
47. Mr Roder’s argument on this point is technical. The document effecting the division, the transfer and the noting of the Agreement seem to have been submitted to the Lands Titles Office in accordance with accepted conveyancing practice. The purpose of that process was that Venuti become the registered proprietor of the estate in fee simple in Lot 16, and that the Agreement be noted on the title to Lot 16 subsequent to the transfer. That purpose was achieved. There is no reason to think that it was intended, by the Act, that an agreement entered into with a party who had obtained, under a contract, an entitlement to become the registered proprietor of the land the subject of the land management agreement (albeit subject to the fulfilment of a pre-condition) could not be a land management agreement under the Act, and be noted on the title accordingly. No purpose would be served by such an interpretation, and considerable inconvenience would result (see Project Blue Sky v Australian Broadcasting Authority[2]).
48. I reject Mr Roder’s argument on this point. It is therefore unnecessary to determine Mr Henry’s argument in relation to the creation of an estoppel by convention by recital in a deed, which he said arose from the statement in Recital A to the Agreement that Venuti was the owner of an estate in fee simple in the land.
49. 2. The Act requires, in s 57(4), that an owner of land must not enter into a land management agreement unless all other persons with a legal interest in the land consent to it. Even if Venuti’s interest in the land, at the date of the execution of the Agreement, were sufficient to enable it to enter into the Agreement, Mr Butler, who was at that time the owner of the legal estate in fee simple, did not consent to it.
50. There was no need for Mr Butler’s consent to be obtained. It was intended, and it came to pass, that the Agreement would become operative only after Venuti had been registered as the owner of the land. Mr Butler had no interest in the land at that point. For the reasons set out in 1. above, I reject Mr Roder’s argument on this point.
51. 3. No resolution of the Council resolving to enter into the Agreement was passed, and no officer of the Council, at the relevant time, had delegated power to decide to enter into the Agreement on the Council’s behalf. There was no resolution authorising the affixing of the Council’s seal to the Agreement as required by s.38 of the Local Government Act 1999.
52. The division application was lodged with the Council on or about 25 September 2002. The agenda for the Development Assessment Panel meeting of 19 February 2003 set out a planning assessment of the division application, including some information about a land management agreement proposed in association with the division application. The planning assessment included this statement:

Prior to final approval of the development the Council will need to finalise and agree to the terms of the Land Management Agreement, which will then need to be signed for registration on the individual titles.

53. An affidavit of Mr Dinning, the current Chief Executive Officer of the Council, was tendered in the Council’s case. Mr Dinning’s evidence was that, in 2003, the Development Assessment Panel comprised the Mayor and all 10 elected councillors of the Council, and no-one else (this was possible under the Act at the time).
54. The minutes of the Council meeting on 19 February 2003 record a single resolution in respect of the division application, which was:

That the Mayor Chief Executive Officer and Ward Councillors be authorised to meet with the developers with the power to act.

55. Nothing in the Minutes assists in the interpretation of that resolution. Mr Roder argued, correctly in my view, that it could not be interpreted as a delegation of statutory power.
56. A document entitled “Amended Report 25/2/03” was tendered in a book of documents relating to the division application. This report provides a “summary of the key elements of the proposed Land Management Agreement between the applicant and Council”. The following paragraph appeared in the report:

Prior to final approval of the development the Council will need to finalise and agree to the terms of the Land Management Agreement, which will then need to be signed for registration on the individual titles.

57. Mr Roder tendered the Development Assessment Panel minutes from 19 February 2003 to the date of the Agreement. There is no record of the “Amended Report 25/2/03” report being considered by the Development Assessment Panel. Nor is there any record of any Development Assessment Panel or Council resolution with respect to the Agreement in the documents provided to the Court.
58. The development approval for the division application was issued by the Council stating that “provisional development plan consent”, “land division” consent and “development approval” were granted on 5 March 2003. It was signed by VH Pearce, Environmental Services Officer.
59. The Local Government Act 1999 provides, in s 36, that a council has the legal capacity of a natural person and may enter into “any kind of contract or arrangement.’ The Local Government Act 1999 provides, in s 37:

A council contracts as follows:-
(a) a contract may be entered into under the common seal of the council; or
(b) a contract may be entered into by an officer, employee or agent authorised by the council to enter into the contract on its behalf.

60. The Local Government Act further provides, in s 38:

38 The common seal
(1) The common seal of a council must not be affixed to a document except to give effect to a resolution of the council.
(2) The affixation of the common seal must be attested by the principle member of the council and the chief executive officer.
(3) An apparently genuine document purporting to bear the common seal of a council and the signatures of the principal member of the council and the chief executive officer attesting the affixation of the seal will, in the absence of proof to the contrary, be taken to have been duly executed by the council.

61. On the basis of the record as it has been presented to me, there are grounds for serious concern about the validity of the Agreement as a land management agreement. A copy of what was understood to be the minutes of the Council from February to June 2003 was tendered in the appellants’ case. The respondent Council made no effort to explain the absence, in those minutes, of both a resolution underpinning the affixing of the Council’s seal to the Agreement and the absence of a resolution by the Council to enter into the Agreement.
62. A council can only act by means of a resolution, or by means of a delegation made in accordance with s 44 of the Local Government Act 1999. No evidence of any relevant delegation at the relevant time was adduced in the Council’s case. The Local Government Act 1999 provides, in s 44(1) and (2):

44 Delegations
(1) A council may delegate a power or function vested or conferred under this or another Act.
(2) A delegation may be made –
(a) to a council committee; or
(b) to a subsidiary of the council; or
(c) to an employee of the council; or
(d) to the employee of the council for the time being occupying a particular office or position; or
(e) to an authorised person.

Further, s 44(6) and (7) of the Local Government Act 1999 provide:

(6) The council must cause a separate record to be kept of all delegations under this section, and should at least once in every financial year review the delegations for the time being in force under this section.
(7) A person is entitled to inspect (without charge) the record of delegations under subsection (6) at the principal office of the council during ordinary office hours.

63. Had a valid delegation been made, there should have been a record of it. Mr Dinning, in his affidavit, spoke of certain delegations from the Council to various staff members, in 2006 to 2010. All were evidenced in writing. I cannot infer from these delegations that others existed prior to them.
64. Had it been appropriate to deal with the collateral challenge, on the basis of the evidence before me, there is a basis for a determination that the Agreement is invalid as a land management agreement (and possibly for all purposes) because the Council neither resolved to enter into it, nor delegated its powers under s 57. The resolution of 19 February 2003 authorising the Mayor, the Chief Executive Officer and the ward councillors to “meet with the developers with the power to act” does not amount to a valid delegation under s.44 of the Local Government Act 1999 to exercise the powers pursuant to s 57 of the Act, or to affix the Council’s seal to an agreement.
65. This is more than a technical issue. Development approvals are often valuable and frequently controversial, depending upon the nature of the development approved. The granting of a development approval, including the entering into of a land management agreement, may have a significant effect on the owners and occupiers of land in the locality. It is important that the process for the assessment of development applications and for the consideration of proposed land management agreements be undertaken in accordance with the applicable statutory provisions, which guarantee a degree of transparency, and engender confidence in the integrity of the process. The processing by the Council of the division application by Venuti and the entering into of the Agreement, on the basis of the information before me, failed to conform to the applicable statutory provisions.
66. 4. The Council did not consider all of the matters it was bound to consider pursuant to s 57(2a)(b) prior to executing the Agreement.
67. It seemed to be common ground at the hearing that all of the Council and Development Assessment Panel minutes relevant to the division application and the entry into the Agreement had been tendered before me. If that is so, then either the Council’s record keeping or the Council’s processes have been gravely deficient. The minutes before me do not record any consideration by the Council or by the Development Assessment Panel of the principle that a land management agreement should not be used as a substitute for an amendment to the Development Plan, as required under s 57(2a)(b). That issue was directly relevant to the issues before the Council and the Development Assessment Panel when considering the division application and the Agreement. As I have explained above, a Council can act only by means of a resolution or through a delegation. It appears that there were no relevant delegations at the relevant time. If, indeed, the evidence before me is a complete record of the relevant Council and Development Assessment Panel processes, then s 57(2a)(b) was not complied with. Compliance with s 57(2a)(b) is now and was at the relevant time a mandatory pre-requisite to the entry by the Council into a land management agreement. Had it been appropriate to entertain a collateral challenge, and if the evidence before me is a complete record of the Council’s relevant processes, then there is a basis for a determination that the operation of the Agreement as a land management agreement is invalid.
68. 5. Recital E to the Agreement said that it related to the future management, preservation or conservation of the whole of the land, and in fact it did not.
69. Mr Roder pointed out that the recitals to the land management agreement included recital E, which says:
    5. Pursuant to the provisions of section 57(2) of the Development Act 1992 (“the Act”) and in further consideration of the terms of the agreement for the sale and Purchase of the Land referred to above the Owner has agreed with the Council to enter into this Agreement relating to the future management, preservation and Conservation of the whole of the land subject to the Development on the terms and conditions contained herein.
70. Mr Roder argued that the agreement was defective as a land management agreement because the substance of it clearly did not relate to the management, preservation or conservation of land, but rather to the development of land which was not referred to in the Recital.
71. The Act, in s 57(2), prior to an amendment which came into operation on 2 April 2001, provided only for land management agreements in relation to the management preservation or conservation of land. “Development” was added by the amendment. The land management agreement was prepared by the Council’s local solicitors. I am prepared to infer that they simply used an out of date precedent document, which led to the error in the recital. I do not think that the Agreement is invalid as a land management agreement on this account. However, Mr Roder had a deeper concern related to this point, which was that, in failing to address the issues in s 57(2a)(b) and failing to consider the Agreement in accordance with the legislation generally, the Council, if it acted at all, acted beyond power. Mr Roder pointed out that it seems to have been intended, by the noting of the Agreement on all of the titles in the community division except for the reserves and the community land, to impose a common building scheme, which is more usually effected by the imposition of restrictive covenants registered on the titles to the land by means of an encumbrance. Mr Roder referred to Tarca and the District Council of Stirling v Hambrook[3] and Jolly v District Council of Yankalilla[4], both of which are decisions of the Supreme Court in which the limitations of land management agreements are discussed.
72. On the basis of the evidence before me, there is force in Mr Roder’s argument on this point. Using a land management agreement in this way could subvert the Development Plan, which is the proper source of planning controls and comes into existence by a process of consultation involving State Government, local government and the community. Even had it been appropriate to entertain a collateral challenge, however, this is not an issue in relation to which I could make a determination without further evidence, including, perhaps, expert planning evidence about the impact of the land management agreement on the relevant objectives of the Development Plan, and evidence as to the discussions and correspondence between the parties to the Agreement.
73. Mr Roder had a further argument, which was that the word “development”, when inserted into s 57(2), was intended to relate to a particular development, rather than to all and any subsequent developments according to the terms of the agreement. I reject this argument. There is no basis for limiting s 57(2) in that manner.
74. Mr Henry argued that the Agreement conferred upon the Council some kind of interest in the land which, upon the noting of the Agreement on the title became indefeasible pursuant to s 69 of the Real Property Act 1886. The Real Property Act, in s 69, provides:

69 - Title of registered proprietor indefeasible, except in cases of—
The title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the original certificate of such land, be absolute and indefeasible, subject only to the following qualifications: (none relevant)

75. “Land” is defined in s.3(1) of the Real Property Act 1886 as follows:

land shall extend to and include all tenements and hereditaments corporeal and incorporeal of every kind and description, and every estate and interest in land;

76. I reject Mr Henry’s argument on this point. The council is not a ‘registered proprietor of land’ in any sense in relation to Section 1853 for the purposes of s 69 of the Real Property Act. The only effect of the noting of the Agreement on the title to the land pursuant to s 57 of the Act is the effect provided for in the Act, and the giving of notice of the terms of the Agreement to successors in title.
77. In summary, were I to entertain a collateral challenge, on the evidence before me, which is not comprehensive, there appear to be grounds upon which the operation of the Agreement as a land management agreement may be invalid. However, for the reasons I have set out, I do not think that it is appropriate for me to entertain that challenge in these proceedings.

Waiver

78. The appellants argued that the Council had waived compliance with the Agreement to the extent necessary for the building of the approved dwelling.
79. The Agreement provides, in clause 7.2.4, 7.2.5 and 7.2.10:

7.2.4. This Agreement may not be varied except by a Supplementary Agreement signed by the Council and the Owner.
7.2.5. The Council may waive compliance by the Owner with the whole or any part of this obligation on the part of the owner herein contained (and any such request for waiver will not be refused unreasonably) provided that no such waiver shall be effective unless expressed in writing and signed by the Council.
7.2.10. The Council may delegate any of its powers under this Agreement to any person.

80. The development plan consents of 3 September 2009 and 21 October 2009, and the development approval of 5 November 2009 in relation to the dwelling application by Vozzo Nominees, had annexed to them, as I have said above, a note in these terms:

That the applicant/owner/builder comply with the terms of the Land Management Agreement unless varied by this Development Approval.

81. The development plan consents and the development approval are documents issued by the Council. Their validity as effective instruments under the Act was not challenged in any way in the proceedings. In my opinion, the note on the development approval, which is the development approval pursuant to which the development is being undertaken, constitutes a waiver of the obligations contained in the Agreement to the extent that the development approved by the development approval departs from the requirements of the Agreement. The development approval was signed by VH Pearce, Environmental Services Officer, who is an officer of the Council. I consider that this is sufficient compliance with clause 7.2.5 of the Agreement. The integrity of the development approval was not challenged by Mr Henry, which was appropriate given that it is a document issued by the Council. Mr Henry did, however, raise an issue about whether the development approval could be said to be “signed by the Council”. I think that if the document can be taken to be validly issued by or on behalf of the Council for the purpose of its operation under the Act, it must be taken to be a validly issued Council document for all purposes. I bear in mind that the Council subsequently denied waiving the requirements of the Agreement, but that does not alter the fact that, by the note on the development approval, the Council had, in fact, granted a waiver. I note that this is consistent with the representation made by Ms Barr, a Council officer, to Mr Fantasia, subsequent to the issuing of the development plan consent in relation to the dwelling application, that nothing further needed to be done with respect to the land management agreement.
82. If I am wrong about that, it is necessary to consider whether Mr Pearce had delegated authority to waive compliance by the appellants with provisions of the Agreement in accordance with clause 7.2.5. From Mr Dinning’s affidavit, it is clear that Mr Pearce, from 20 December 2006, had delegated power under s 57(2) of the Act and s 44 of the Local Government Act:

to enter into an agreement relating to the development, management, preservation or conservation of land within the area of the Council with the owner of the land.

83. Mr Roder argued that this delegation of power must be interpreted to include the power to vary an existing agreement, including by waiver. I agree.
84. The result is that the development approval of 5 November 2009 contains a waiver of those requirements of the Agreement which are inconsistent with the development approved. Non compliance with those requirements cannot therefore now found an enforcement notice pursuant to s 84.

Estoppel and Discretion

85. Given my determination in relation to the waiver, it is not necessary to consider in detail the question of estoppel, or the question of the exercise of discretion. In brief, then, Mr Roder argued that, if Mr Henry succeeded in his argument that the note on the development approval was not a waiver for the purposes of clause 7.2.5 of the Agreement, on account of Mr Pearce having exceeded his authority by issuing the note, the Council was nonetheless estopped from denying that the agreement had been waived on account of the issue of the note in circumstances where there was no reason to doubt the effectiveness of the note or the integrity of the process which led to its issue. There is some doubt about whether the Council can be estopped in these circumstances (see Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam[5]). However, given the conduct of the Council and its officers, particularly in issuing the note, the representation by Ms Barr to Mr Fantasia after the development plan consent was issued that nothing further needed to be done with respect to the land management agreement, and the subsequent delay from 24 December 2009 (the date of the letter of Hamdan Lawyers) to the issue of the s 84 Notice on 30 August 2010, and given that the Council must have known throughout that time that building work was proceeding, at considerable expense to the appellants, I would have determined, had it been necessary, that the appropriate course in the exercise of my discretion would be to quash the notice.

Summary and Conclusion

86. This is an appeal against a s 84 notice. Only those parts of the appeal which relate to the validity of the Agreement as a land management agreement, and the ability of that Agreement to form the basis for a s 84 notice, and the exercise of discretion, have been argued. The appellant has further grounds of appeal which have not been heard.
87. A collateral challenge to the validity of the operation of the Agreement as a land management agreement was made by Vozzo Nominees and Crown Equity. I have determined that the decision of the Council to enter into the Agreement as a land management agreement (if indeed such a decision was made) is capable of being the subject of a collateral challenge. However, in the particular circumstances of these proceedings, I have declined to entertain a collateral challenge because of:
    • the fact that seven years have passed since the noting of the Agreement on the title, and the fact that Vozzo first obtained an interest in the land in October 2006, and Vozzo and Crown Equity became joint owners in February 2009.
    • the fact that the appellants enjoy the benefit of the community title division, which is inextricably bound up in the process by which the Agreement came into existence.
    • the potential for the issue to affect the holders of interests in the other 18 residential allotments in the subdivision, who are not parties to this action.
    • the fact that Venuti is not a party to this action.
    • the fact that other dwellings have been built in the subdivision in the past 7 years.
    • the fact that other development, administrative and commercial decisions are likely to have been made in the last 7 years .
    • the state of the evidence before me.
88. Had I entertained a collateral challenge, on the basis of the evidence before me, there are grounds for a determination that the Agreement was not validly entered into by the Council and is not valid as a land management agreement under the Act. I have rejected Mr Henry’s argument that the noting of the land management agreement enlivens s 69 of the Real Property Act 1886 to the benefit of the Council.
89. The note which was included on the development plan consents of 3 September 2009 and 21 October 2009 and the development approval of 5 November 2009 in relation to the dwelling application, which said:

That the applicant/owner/builder comply with the terms of the Land Management Agreement unless varied by this Development Approval.

constituted a waiver of the obligations contained in the Agreement to the extent that the development approved by the development approval departs from the requirements of the Agreement. Consequently, if the dwelling is being constructed in accordance with the development approval, then non compliance with the Agreement cannot form the basis of a notice pursuant to s 84.

90. Given my decision with respect to waiver, it is not necessary to consider the arguments regarding estoppel. I have, however, indicated that in all of the circumstances, even if I am wrong about the waiver issue, I would have exercised my discretion to quash the s 84 notice.
91. There will be an order quashing the s 84 notice.

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[1] [2006] SASC 32

[2] [1998] HCA 28; (1998) 194 CLR 355

[3] (1995) 86 LGERA 56

[4] [2006] SASC 53; (2006) 143 LGERA 428

[5] (2003) 195 ALR 502