Posted on March 28, 2012 by Frances Tse
When can extrinsic material (such as the DA) be used to construe a development consent?
Whether extrinsic materials can be used to construe a development consent is discussed in a recent case Quarry Products (Newcastle) Pty Limited and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No.3)  NSWLEC 57.
The case related to a quarry within the Cessnock local government area. A question arose as to the extent of land that could be quarried within two portions of land that were the nominal subject of the development consent for the quarry operation.
The relevant facts of the case were:
- the development consent for the quarry (Consent) contained the heading ‘Development Application 118/679/23 for a Blue Metal Quarry on Portions 177 and 198, Parish of Allandale’ and various conditions relating to the operation of the quarry but was silent on specific geographical or quarrying volume limitations, and
- a letter (Letter) which formed part of the suite of development application documents and which was referred to in the development application form described the proposed quarry operation in detail and stated ‘the proposed maximum area involved in quarry activities is 40 hectares as indicated on the diagram’, and
- a plan (Plan) which was attached to the Letter had marked on it a circle labelled ‘proposed quarrying area’.
Sheahan J considered extensive caselaw from both Australia and the UK. The relevant principles that can be derived from them are:
- Development consents are public documents that operate in rem for the benefit of successors in title and should be construed without reference to extrinsic material. It would be highly inconvenient if a person had to have regard to a series of documents to know what the consent authority had approved.
- In determining what development a consent authorises, a person looks primarily at the consent and construes it. If the consent is capable of sensible construction on its own terms, then no extrinsic materials should be used.
- It is not possible to look at the development application, and documents accompanying the development application unless they are incorporated in the consent expressly or by necessary implication and only where this is necessary for the purpose of interpreting the consent.
- In relation to express incorporation, more is required than a mere reference to the application. Words sufficient to inform a reasonable reader that the application forms part of the consent are needed. Examples given by a UK case are words such as ‘in accordance with the plans and application’ or ‘on the terms of the application’.
- In terms of ‘necessary implication’, extrinsic materials should only be used where there is ambiguity in the wording of the consent and the material should be used only to the extent necessary to resolve the ambiguity.
- It is not legitimate to look at the development application or documents that accompanied the application to contradict, extend or contract the scope of a consent that is stated in clear terms.
The Applicants in this case argued that the Consent was clear and unambiguous on its terms (that it was a consent for a blue metal quarry on Portions 177 and 198) and therefore no extrinsic material was required to construe the Consent.
The RMS argued that the Consent was ambiguous and in particular, that vital information such as the size and location of the quarry was not set out. Therefore, the Letter and Plan could be referred to cure the ambiguity.
Sheahan J agreed with the RMS and agreed that the consent alone was not capable of proper interpretation because crucial details such as the size and location of the quarry were absent. That information was only adequately described in the Letter and Plan and therefore they must be incorporated into the Consent by necessary implication. The Court therefore found that quarrying was only permitted in the area on the Plan circled and labelled ‘proposed quarrying area’.
The case does not make new law, but it is a salient reminder that councils need to take particular care when drafting development consents to ensure that any necessary material is expressly incorporated.
A consent must be worded so it is clear and unambiguous as to what development is being consented to and on what terms.
If councils intend that particular plans or particular development application documents ought to form part of the consent, mere reference to them may not be sufficient. The incorporation of those documents should be expressly stated. If not, other documents such as the development application documents will only be able to be used in the event that there is any ambiguity in the consent and only to the extent necessary to cure that ambiguity.