In brief - In may be necessary to consider the source material
on which a development consent was granted
If the terms of a development consent are unclear or ambiguous,
a government authority or the Court on appeal may take into account
reference material which is not identified in the development
consent itself. This can have significant impacts on the commercial
value of the consent.
Consent granted for a quarry
In 1979 a development consent was granted by Cessnock City
Council for a quarry and associated infrastructure at a property at
Allandale, NSW. The consent provided no conditions defining the
precise size and location of the quarry within the confines of the
property, although it did provide detailed conditions regulating
the operation and construction of the quarry and the associated
buildings and infrastructure.
Accompanying the original development application was a letter
with further details - specifically, that the proposed maximum area
for quarrying activities would be 40 hectares "as indicated in
the diagram." The accompanying diagram contained a circle,
with a notation stating a proposed quarrying area of 40
Compulsory acquisition of the property by NSW Roads and
The NSW Roads and Maritime Services (RMS) subsequently acquired
the property via compulsory acquisition. The applicants - the
dispossessed land owner and the lessee - argued for a property
valuation based on an entitlement to relatively unlimited quarrying
activities. RMS argued for a valuation based on quarrying
activities limited to 40 hectares.
Should the development consent be considered on its own?
The applicants argued that the consent was complete and must be
read and interpreted on its face. RMS argued that it was not
possible to understand what development was approved by the terms
of the consent alone and that it was necessary to consider the
development application documents.
Decision of the Land and Environment Court
The decision may be summarised as follows:
When determining what has been approved, you primarily
interpret the document constituting the approval. If the terms of
the consent are clear, you may not look at extraneous documents to
qualify or contradict the consent.
Where a development consent incorporates the development
application or other documents expressly or by necessary
implication, these documents may be relied upon to interpret the
consent. This reliance extends only to the extent that these
documents are actually incorporated into the consent.
The express incorporation of extraneous documents into a
consent requires more than mere passing reference, but instead the
use of words that would inform a "reasonable reader" that
the other documents form part of the consent.
The incorporation of extraneous documents by way of
"necessary implication" arises where the terms of the
consent are not clear and are ambiguous.
Development consent could not be interpreted on its own
The Court found that the consent could not properly be construed
alone, as it did not include "necessary and important
details", such as the size and location of the quarry. These
details were contained in the original development application
documents, specifically the letter and the indicative plan.
The Court was satisfied that these documents were incorporated
into the consent expressly (by virtue of the planning regime at the
time) and also by "necessary implication" in order to
rectify the ambiguity.
Implications of the Quarry Products decision
This decision raises two important issues. First, a development
consent which is unclear or ambiguous in its terms or scope will
not necessarily be construed liberally or expansively to the
benefit of the landowner by government authorities or the Court on
Secondly, if there is any uncertainty in the terms of a
development consent, it is necessary to consider the source
material on which the consent was granted, irrespective of how many
years the consent has been operational.
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