Interpreting orders of the Court – are the reasons relevant?
The NSW Court of Appeal has recently considered when it will be appropriate to refer to extrinsic materials including the reasons for a Court’s decision, and the terms of the relevant development application, when interpreting Court orders granting development consent.
The proceedings in Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 had a lengthy history.
Of interest is that the case related to a development application solely for the use of a right of way to access a residential flat building which had been the subject of a separate development consent. In that sense the case is a reminder that a development application may relate to development of one parcel of land, but if that development involves the use of a right of way or easement, then there may be a requirement for consent to enable the use of the land burdened by the right of way.
The key issue in this case, however, was whether the reasons of Commissioner Murrell in granting consent to the use of the right of way, could be considered when interpreting the conditions of the consent.
The Applicant, Sertari Pty Ltd, argued that it was necessary, following the Court of Appeal’s decision in Athens v Randwick City Council [2005] NSWCA 317, to refer to the judgment of Commissioner Murrell which formed part of the orders that she made granting consent to the use of the right of way, when interpreting the conditions of consent. Sertari also argued that it was necessary to refer to the development application to construe the development consent.
The Decision of the Court of Appeal
Whilst the issue of the relevance of a Court’s judgment to interpretation of the Court’s orders has previously been considered, both the trial judge and the Court of Appeal noted that Sertari’s argument that the reasons were relevant to the interpretation of the conditions of consent was ‘novel’.
The Court stated:
‘Although [Athens v Randwick City Council [2005] NSWCA 317] is authority for the proposition that in constituting a court’s order, at least where it is ambiguous, resort may be had to the judgment which gave rise to it, it is not authority for the proposition that in a case such as the present the judgment of Commissioner Murrell formed part of the orders that she made including the conditions of consent. Rather, resort may be had to the judgment for the purpose of construing those orders and/or conditions if that is appropriate in the circumstances.’
The conclusion of the trial judge was that the reasons in the judgment are not part of the development consent. Ultimately, the Court of Appeal found it unnecessary to come to a conclusion as to whether the reasons could be considered in interpreting the development consent in this case based on the facts.
However, there might be an argument that if the consent conditions are ambiguous or not capable of being meaningfully interpreted without reference to the reasons, the reasons might be considered.
The Court also held that this was not a case where the form of the development application and accompanying documents were incorporated into the consent either expressly or by necessary implication. The law remains unchanged in this respect. A document will be incorporated into the consent where it is attached to or referred to in the consent, but only if it is attached or referred to for the purpose of identifying or describing something dealt with in the consent (see Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103). A document may be incorporated into the consent by necessary implication if, for example, the consent would be meaningless without reference to the document, or its meaning could not be fully appreciated without reference to the document.
It is worth noting the circumstances in which other documents may be considered in interpreting conditions of consent.
Parties to litigation should seek to ensure that the wording of the conditions of any consent granted by the Court are clear and unambiguous to avoid having to resort to an analysis of the Court’s reasoning. Often, particularly where judgments are given ex tempore and not reserved, as appears to have been the case in this case, the reasons of the Court themselves may be difficult to interpret or may not properly reflect the Court’s detailed consideration of the development in question or the appropriate conditions to be imposed.
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