Posted on November 30, 2018 by

When are extrinsic documents incorporated into a development consent

An issue which frequently arises in interpreting development consents is whether extrinsic documents may be taken into account. The general principle that consents are ‘stand alone’ documents, is subject to rules about when they do in fact incorporate other documents by express reference or necessary implication.

In Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) 2018 [NSWLEC] 153, the Council challenged the legality of a quarry on the basis that it was:

• being operated without the development having been subject to any proper environmental assessment; and
• that the development was being carried out unlawfully, without the requisite planning approvals under the Environmental Planning and Assessment Act 1979.

In order to consider these questions, it was necessary to consider whether the relevant consent (1991 Consent)  incorporated the development application and environmental impact statement (EIS) (Associated Documents).

The analysis of the Court is particularly instructive of the approach the Court undertakes in applying the relevant legal principles concerning the incorporation of extrinsic documents as set out in Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 (Allandale) which are:

• as a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it.  That extrinsic evidence is not led to vary the consent but to identify the thing or place referred to it.  Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent;
• 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;
• ultimately,  the test of necessary implication is whether, in the absence of express incorporation, the consent is complete on its face, or whether it is ambiguous or otherwise such that a reader of it, or a person acquainted with the physical features of the land, would conclude that recourse to other documents would be necessary to give it a sensible meaning.

Issue before the Court

The 1991 Consent nominated an area of 52.2ha without specifically indicating the location or area approved for extractive activities, whereas the Associated Documents limited the physical and operation boundaries of the activity to a specified area of 5ha on the quarry site.  The Associated Documents were not expressly incorporated into the 1991 Consent.

The issue for determination was whether the Associated Documents were incorporated into the 1991 Consent by necessary implication.

A summary of the analysis employed by Molesworth AJ in the application of the relevant principles as set out in Allandale is provided below.

Uncertainty on the face of the Consent

His Honour noted that given the 1991 Consent was ambiguous in respect of the location of the extractive activities, the incorporation of the Associated Documents was required and justifiable in this particular case as there was a need to reference the plans and proposals submitted so that the meaning, scope and effect of the development allowed by the 1991 Consent could be given the necessary clarity.

Moreover, the incorporation of the Associated Documents did not bring new conditions or new restraints not otherwise imposed by way of the 1991 Consent, rather, they resolved ambiguity in order to facilitate an understanding of the primary documents of the 1991 Consent.

With specific reference to the EIS, Molesworth AJ noted that, its incorporation was required to provide clarity as to the limited nature of the development that was proposed and the context for environmental controls which would set the constraints upon the future operations. The 1991 Consent, once granted, provided the regulatory constraints while the incorporated EIS provided the explanatory context for the conditions.

A development consent must be construed in accordance with its enduring functions

His Honour held that the enduring function sought to be achieved by the 1991 Consent was to be used for the benefit of subsequent owners and occupiers to be relied upon by many persons, such as the general public effectively relying upon it as a guarantee that what was proposed and then approved would be that which was known and identified with certainty.

Accordingly, his Honour held that the enduring function of the 1991 Consent was to allow the extractive industry to be carried out within the area specified in the Associated Documents as opposed to allowing the consent grantee a liberty to pursue unrestrained quarrying far beyond the area envisaged, significantly increasing consequential off-site impacts.

Inconvenience of incorporation

His Honour also considered whether the incorporation of the Associated Documents into the 1991 Consent would create difficulties, and inconvenience later property owners preferring the more straightforward reliance on the terms on the face of the consent itself.

His Honour formed the view that allowing the development to extend far beyond the area that was envisaged in the original proposal, beyond that placed before public exhibition for consideration and beyond that which was endorsed by the grant of the 1991 Consent was a greater evil than accepting a degree of inconvenience that future owners may face having to resort to incorporated documents beyond a single document to ascertain the parameters of the consent.

His Honour ultimately determined that the Associated Documents were incorporated in the 1991 Consent and the quarry was operating unlawfully in that the extractive activities were being undertaken beyond the area prescribed in the Associated Documents.

Whilst this case does not establish any new areas of law, it is a timely reminder to consent authorities on the importance of preparing development consents which are unambiguous and can be clearly construed according to their terms in order to prevent future litigation concerning the construction of the consents.

A copy of the judgment can be accessed here.

If you have any questions about this blog please contact Stuart Simington on (02) 8235 9704.