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Lu v Walding (No 2) [2021] NSWLEC 21 (15 March 2021)
Last Updated: 5 August 2021
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Land and Environment Court
New South Wales
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Case Name:
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Lu v Walding (No 2)
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Medium Neutral Citation:
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Hearing Date(s):
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22-24 July 2020 (hearing); 29 July 2020, 30 July 2020, 31 July 2020, 7
August 2020, 19 August 2020, 28 August 2020 (written submissions)
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Decision Date:
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15 March 2021
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Jurisdiction:
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Class 4
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Before:
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Pain J
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Decision:
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See [272]-[276] of judgment
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Catchwords:
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JUDICIAL REVIEW – construction of garage on council owned land
approved by local council as consent authority – applicant
for garage
development and local council as consent authority unaware that construction on
council owned land when development application
approved – absence of
consent of council jurisdictional as development application not valid –
proceedings commenced
more than three months after public notice of grant of
development consent – operation of s 101 Environmental Planning and
Assessment Act 1979 bar to proceedings – Hickman principles satisfied
– exercise of discretion to extend time under UCPR r 59.10 –
exercise of discretion to grant relief |
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Legislation Cited:
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Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(Cth) Commonwealth Constitution, Ch III (ss 73, 75) Consumer, Trader
and Tenancy Tribunal Act 2001 (NSW) s 65Customs Tariff (Anti-Dumping)
Act 1975 (Cth) Environmental Planning and Assessment Act 1979 (NSW) ss 4.15,
4.59, 9.46, former ss 77, 79C, 101 104A, 109E, 124, s 149 Environmental
Planning and Assessment Regulation 2000 (NSW) regs 49, 50, 124, Sch
1 Industrial Relations Act 1996 s 179Interpretation Act 1987 (NSW) s
31Judiciary Act 1903 (Cth) ss 78A, 78BLand and Environment Court Act
1979 (NSW) ss 20, 25B, 39, 58, 71Local Government Act 1993 (NSW) s
8Local Government Act 1919 (NSW) ss 232 Manly Development Control
Plan 2013 Migration Act 1958 (Cth) s 486ARoads Act 1993 (NSW) Uniform
Civil Procedure Rules 2005 (NSW) r 59.10 Water Management Act 2000 (NSW) s
47
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Cases Cited:
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Texts Cited:
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Aronson, Groves and Weeks, Judicial Review of Administrative Action &
Governmental Liability (6th ed, 2017, Thomson Reuters)
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Category:
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Principal judgment
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Parties:
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Lin Lu (First Applicant)
Frederick Woo (Second Applicant)
Adrian
Walding (First Respondent)
Alexandra Walding (Second Respondent)
Northern
Beaches Council (Third Respondent)
Attorney-General (Intervener)
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Representation:
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COUNSEL:
N Eastman and N Hammond (First and Second Applicants)
T Hale
SC (First and Second Respondents)
Submitting appearance (Third
Respondent)
J Emmett (Intervener)
SOLICITORS:
Bick & Steele
(First and Second Applicants)
Mills Oakley (First and Second
Respondents)
Wilshire Webb Staunton Beattie (Third Respondent)
Crown
Solicitor’s Office (Intervener)
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File Number(s):
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19/48339
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TABLE OF CONTENTS
Legislation
Environmental Planning and Assessment Act 1979
(NSW)
Environmental Planning and Assessment Regulation 2000
(NSW)
Land and Environment Court Act 1979 (NSW)
Water Management Act 2000 (NSW)
Combined statement of facts / chronology
Evidence
Plans and documents relevant to common boundary of
Walding and Lu Properties
Ground 1– jurisdictional error due to absence
of landowner’s consent
Ground 1 – absence of jurisdictional fact due
to no landowner’s consent
Applicants’ submissions
Waldings’ submissions
Ground 1 established
Does s 101 bar these proceedings?
Applicants’ submissions
Waldings’ submissions
Attorney-General’s submissions
Section 101 does bar proceedings
Do Hickman principles apply to Ground 1 error?
Applicants’ submissions
Waldings’ submissions
Consideration
Ground 2 – Failure to Consider
Applicants’ submissions
Waldings’ submissions
Ground 2 not established
Ground 4 – Unreasonableness
Applicants’ submissions
Waldings’ submissions
Ground 4 not established
Uniform Civil Procedure Rules 2005 r 59.10 –
extension of time to commence proceedings / exercise of discretion to grant
relief
Lay evidence
Evidence of town planners
Applicants’ submissions on discretion under r
59.10
Waldings’ submissions on discretion under r
59.10
Applicants’ submissions on overall exercise of
discretion to order demolition
Waldings’ submissions
Discretion to extend time under UCPR r 59.10
granted
Exercise of discretion – is demolition of
garage or other relief warranted?
JUDGMENT
- The
Applicants Ms Lu and Mr Woo have commenced judicial review proceedings
challenging the grant of a development consent to their
neighbours Mr and Mrs
Walding (the Waldings), the First and Second Respondents, for a garage and other
house alterations by the Northern
Beaches Council (the Council), the Third
Respondent, in May 2017. The Council has filed a submitting appearance.
- The
Waldings’ garage is substantially built but not complete. The garage
approved by the Council is located entirely on land
owned by the Council being
road reserve adjoining Clontarf Street at the front of the Waldings’
property at 107 Clontarf Street
Seaforth (the Walding Property). It is agreed
that the Waldings and the Council were unaware of this fact at the time
development
consent was granted by the Council.
- The
Council published a notice of determination of the development consent in the
Manly Daily on 8 July 2017. Under s 101 (now s 4.59) of the
Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as
in force in 2017 any challenge to a development consent must be commenced within
three months of the appropriate
public notice being given. The question whether
these proceedings are time-barred therefore arises. A notice of a constitutional
matter under s 78B of the Judiciary Act 1903 (Cth) was prepared by
the Applicants on 17 July 2020, stating that a matter had arisen under the
Commonwealth Constitution, being whether a privative clause such as s 101
of the EPA Act, which prescribes a time limit for bringing a judicial review
action,
can compromise or restrict the capacity of a state supreme court
including this Court, to exercise its supervisory jurisdiction for
review of a
jurisdictional error, thereby ousting the jurisdiction of the High Court under
s 75(v) of the Commonwealth Constitution. The Attorney-General of NSW (the
Attorney-General) has intervened pursuant to s 78A of the Judiciary
Act to make submissions on the scope of s 101.
- Three
grounds of judicial review are contended for by the Applicants. Firstly, that
the absence of landowner’s consent, being
the Council as the landowner,
was an absence of a jurisdictional fact that must have had to exist to enliven
the Council’s
power to grant development consent under the EPA Act
(Ground 1). Secondly, the Council failed to consider a mandatory relevant
consideration
as required by s 79C (now s 4.15) of the EPA Act
(specifically the likely impacts of the development including environmental,
social
and economic impacts (subs (b)), the suitability of the site for the
development (subs (c)), and the public interest (subs (e)) (Ground
2). Thirdly,
the Council’s decision was manifestly unreasonable and illogical (Ground
4). The relief sought is a declaration
that the development consent is ultra
vires and otherwise invalid. If the Applicants are able to pursue these
proceedings and are
successful on their grounds of judicial review, the issue
arises whether the Court should order demolition of the garage in the exercise
of its discretion or make alternative orders.
Legislation
Environmental Planning and Assessment Act 1979 (NSW)
- Relevant
sections of the EPA Act as in force at 9 May 2017
provided:
Part 4 Development assessment
...
Division 2 The procedures for development that needs consent
...
79C Evaluation
(1) Matters for consideration—general In
determining a development application, a consent authority is to take into
consideration such of the following matters as are
of relevance to the
development the subject of the development application:
(a) the provisions
of:
(i) any environmental
planning instrument, and
(ii) any proposed instrument that is or has been the subject of
public consultation under this Act and that has been notified to
the consent
authority (unless the Secretary has notified the consent authority that the
making of the proposed instrument has been
deferred indefinitely or has not been
approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under
section 93F, or any draft planning agreement that a developer has
offered to
enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters
for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of
the Coastal Protection Act 1979),
that apply to the land to which the development application
relates,
(b) the likely impacts of that
development, including environmental impacts on both the natural and built
environments, and social
and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the
regulations,
(e) the public interest.
...
Division 9 Miscellaneous
...
101 Validity of development consents and complying development
certificates
If public notice of the granting of a consent or a complying development
certificate is given in accordance with the regulations
by a consent authority
or an accredited certifier, the validity of the consent or certificate cannot be
questioned in any legal proceedings
except those commenced in the Court by any
person at any time before the expiration of 3 months from the date on which
public notice
was so given.
Environmental Planning and
Assessment Regulation 2000 (NSW)
- Relevant
regulations of the Environmental Planning and Assessment Regulation 2000 (NSW)
(EPA Regulation) as in force at 9 May 2017 provided:
Part 6 Procedures relating to development applications
Division 1 Development applications generally
...
49 Persons who can make development
applications
(1) A development application may be made:
(a) by the owner of the land to which
the development application relates, or
(b) by any other person, with the consent in writing of the
owner of that land.
...
50 How must a development application be
made?
(1) A development application:
(a) must contain the information, and
be accompanied by the documents, specified in Part 1 of Schedule 1, and
...
Schedule 1 Forms (Clauses 50, 126 and 139)
Part 1 Development applications
1 Information to be included in development
application
(1) A development application must contain the following
information:
...
(i) evidence that the owner of the land on which the
development is to be carried out consents to the application, but only if
the
application is made by a person other than the owner and the owner’s
consent is required by this Regulation,
...
...
2 Documents to accompany development
application
(1) A development application must be accompanied by the
following documents:
(a) a site plan of the land,
(b) a sketch of the development,
...
(2) The site plan referred to in subclause (1) (a) must
indicate the following matters:
(a) the location, boundary dimensions,
site area and north point of the land,
(b) existing vegetation and trees on the land,
(c) the location and uses of existing buildings on the
land,
(d) existing levels of the land in relation to buildings and
roads,
(e) the location and uses of buildings on sites adjoining the
land.
(3) The sketch referred to in subclause (1) (b) must indicate
the following matters:
(a) the location of any proposed
buildings or works (including extensions or additions to existing buildings or
works) in relation
to the land’s boundaries and adjoining development,
(b) floor plans of any proposed buildings showing layout,
partitioning, room sizes and intended uses of each part of the building,
(c) elevations and sections showing proposed external finishes
and heights of any proposed buildings (other than temporary
structures),
(4) A statement of environmental effects referred to in
subclause (1)(c) must indicate the following matters—
(a) the environmental impacts of the
development,
(b) how the environmental impacts of the development have been
identified,
(c) the steps to be taken to protect the environment or to
lessen the expected harm to the environment,
(d) any matters required to be indicated by any guidelines
issued by the Planning Secretary for the purposes of this clause.
...
Land and Environment Court Act 1979 (NSW)
- Relevant
sections of the Land and Environment Court Act 1979 (NSW) (LEC Act)
provide:
Division 1 General
...
20 Class 4—environmental planning and protection, development contract
and strata renewal plan civil enforcement
...
(2) The Court has the same civil jurisdiction as the Supreme
Court would, but for section 71, have to hear and dispose of the following
proceedings—
(a) to enforce any right, obligation or
duty conferred or imposed by a planning or environmental law, a development
contract or
a strata renewal plan,
(b) to review, or command, the exercise of a function conferred
or imposed by a planning or environmental law, a development contract
or a
strata renewal plan,
(c) to make declarations of right in relation to any such
right, obligation or duty or the exercise of any such function,
(d) whether or not as provided by section 68 of the Supreme
Court Act 1970—to award damages for a breach of a development
contract.
...
(3) For the purposes of subsection (2), a planning or
environmental law is—
(a) any of the following Acts or
provisions—
...
Environmental Planning and Assessment Act 1979,
...
Part 6 Miscellaneous
...
71 Proceedings in Supreme Court
(1) Subject to section 58, proceedings of the kind referred to
in section 20(1)(e) may not be commenced or entertained in the Supreme
Court.
(2) The jurisdiction conferred on the Court in respect of
proceedings referred to in section 20(1)(e) is not limited by any provision
of
the Civil Procedure Act 2005 or the uniform rules under that
Act.
Water Management Act 2000 (NSW)
- Section
47 of the Water Management Act 2000 (NSW) (WM Act) is relevant to the s
101 submissions of the parties. It provides:
Part 1 General
...
Division 11 Miscellaneous
...
47 Validity of management plans and exercise of
plan-making functions
(1) The validity of a management plan may not be challenged,
reviewed, quashed or called into question before any court in any
proceedings,
other than before the Land and Environment Court in proceedings commenced within
the judicial review period.
(2) The judicial review period in respect of a management plan
is—
(a) the period of 3 months after the
date the plan was published on the NSW legislation website, except as provided
by paragraph
(b), or
(b) in relation to a provision of the plan that was inserted by
an amendment of the plan (other than an amendment under section 45 (1) (c)), the
period of 3 months after the date that the amendment was published on the NSW
legislation website.
A judicial review period does not arise as a result of the extension of the
duration of a management plan.
(3) The judicial review period cannot be extended by the Land
and Environment Court or any other court, despite any other Act or
law.
(4) Without limiting subsection (1), the exercise by a
designated person of any plan-making function may not be—
(a) challenged, reviewed, quashed or
called into question before any court in any proceedings, or
(b) restrained, removed or otherwise affected by any
proceedings,
other than before the Land and Environment Court in proceedings commenced within
the judicial review period.
(5) The provisions of or made under this Act and the rules of
natural justice (procedural fairness), so far as they apply to the
exercise of
any plan-making function, do not place on a designated person any obligation
enforceable in a court (other than in the
Land and Environment Court in
proceedings commenced within the judicial review period).
(6) Accordingly, no court (other than the Land and Environment
Court in proceedings commenced within the judicial review period)
has
jurisdiction or power to consider any question involving compliance or
non-compliance, by a designated person, with those provisions
or with those
rules so far as they apply to the exercise of any plan-making function.
(7) This section is not to be construed as applying the rules
of natural justice to the exercise of plan-making functions for the
purposes of
proceedings instituted within the judicial review period.
(8) In this section—
court includes any court of law or
administrative review body.
designated person means the Minister, a management committee,
the Secretary or any person or body assisting or otherwise associated with any
of them.
exercise of functions includes the purported exercise of
functions and the non-exercise or improper exercise of functions.
judicial review period—see subsection (2).
management plan includes purported management plan.
plan-making function means—
(a) a function under this
Act relating to the making of a management plan (including relating to the
amendment, replacement or repeal
of a management plan or the extension of the
duration of a management plan), or
(b) a function under section 46 of this Act relating to the
statement of the purpose for which any provision of a management plan has been
made.
proceedings includes—
(a) proceedings for an
order in the nature of prohibition, certiorari or mandamus or for a declaration
or injunction or for any
other relief, and
(b) without limiting paragraph (a), proceedings in the exercise
of the inherent jurisdiction of the Supreme Court or the jurisdiction
conferred
by section 23 of the Supreme Court Act
1970.
Combined statement of facts / chronology
- The
parties agreed a “Combined Statement of Agreed Facts / Chronology”
(SOAF) which means that virtually all the relevant
background facts concerning
the grounds of review and most of the events relevant to the exercise of
discretion are agreed as follows:
The parties
1 Lin Lu and Frederick Woo, the first and second applicants,
own and occupy the property located at 105 Clontarf Street, Seaforth,
legally
described as Lot 179 DP 11162 (Lu Property). The first and second
applicants purchased the Lu Property in November 2009.
2 Adrian Walding and Alexandra Walding, the first and second
respondents, own and occupy the property located at 107 Clontarf Street,
Seaforth, legally described as Lot 1 DP 119074 (Walding Property). The
first and second respondents purchased the Walding Property in December
2014.
3 The Lu Property adjoins the Walding Property to the south.
The Clontarf Street road reserve is located to the east of the Lu
Property and
the Walding Property. Clontarf Street is a council public road within the
meaning of that term in the Roads Act 1993 (NSW).
4 Northern Beaches Council, the third respondent,
is:
a. the roads authority and owner of
Clontarf Street (including the Dedicated Land referred to in paragraph 5 below);
and
b. the consent authority in respect of development application
DA 359/2016 (DA) (described in paragraph 10 below) lodged by the first
and second respondents.
Dedication of land to the third respondent for the purpose of road
widening
5 Between late 1956 and mid-1957, part of Lots 178 to 183 of DP
11162 was dedicated to the third respondent (or its predecessor)
for the purpose
of widening Clontarf Street.
6 Under Memorandum of Dedication G628386 dated 26 April 1959,
the then registered proprietor of the Walding Property dedicated
part of the
Walding Property (identified in the Plan Showing Proposed Road Widening within
Lots 178-183 DP 11162 dated 16 November
1956) to the third respondent (or its
predecessor) for the purpose of road widening (Dedicated Land).
7 Memorandum of Dedication G628386 was registered by the
Registrar General in the Register Book Volume 4317 Folio 206 on 26 April
1957.
Upon registration of Memorandum of Dedication G628386, the Dedicated Land was
vested in the third respondent (or its predecessor)
and formed part of the
Clontarf Street public road reserve.
8 On 30 September 1960, Certificate of Title Volume 4317 Folio
206 was cancelled, and on 7 October 1960, a new Title Volume 8002
Folio 186 was
registered. The diagram contained in Certificate of Title Volume 4317 Folio 206
shows the new lot dimensions of the
Walding Property (then described at Lot 180
DP 11162), with the Dedicated Land excised from that lot.
9 On 14 February 1989, Certificate of Title Volume 8002 Folio
186 was cancelled, and a new Certificate of Title was created, being
Lot 1
DP 119074 (the current title of the Walding Property). This plan contains
the same dimensions as Lot 180 DP 11162.
The Development Consent
10 On 26 May 2016, the respondents attended a pre-lodgment
meeting with the third respondent in relation to proposed development
on the
Walding Property.
11 On 30 October 2016, David Frew prepared a survey plan of the
Walding Property for the respondents.
12 On 20 December 2016, the first and second respondents lodged
the DA with the third respondent. The DA sought development consent
for
additions and alterations to the existing dwelling including the construction of
a new detached garage with roof terrace and
associated landscaping (Proposed
Development).
13 The DA was accompanied by documents including the
following:
a. the DA form;
b. the Survey Plan dated 30 October 2016 (Survey
Plan);
c. the Existing Site Plan Drawing Ex 01 dated 8 August 2015
prepared by Sulivan [sic] Design and Construction;
d. Notification Plan Drawing No DA 10 dated 8 August 2015
(Notification Plan); and
e. the Statement of Environmental Effects dated 15 December
2016 prepared by Planning Approvals.
14 As indicated in paragraphs 5 to 7 above, the third
respondent is the owner of the Dedicated Land. At the relevant times, clause
49(1) of the Environmental Planning and Assessment Regulation 2000
provided as follows:
49 Persons who can make development applications (cf
clause 46 of EP&A Regulation 1994)
(1) A development application may be
made:
(a) by the owner of the
land to which the development application relates, or
(b) by any other person, with the consent in writing of the
owner of that land.
15 The DA was publicly notified between 21 December 2016 and 23
January 2017 (the “Notification Period”). The first and
second applicants received a letter from the third respondent dated 21 December
2016 notifying them of the
DA and the Proposed Development and inviting them to
make written submissions. The letter was accompanied by a Notification Plan.
16 On 18 January 2017, the first and second applicants made a
written objection to the DA.
17 Prior to the determination of the DA, on or about 9 May
2017, the third respondent’s delegate recommended in its Delegated
Authority Report that the development proposed by the DA be approved, subject to
conditions. (the “Delegated Authority Report”).
18 On 9 May 2017, the third respondent, by its delegate,
determined to approve the DA (the “Development Consent”).
19 Notice of the Development Consent was published in the Manly
Daily newspaper on 8 July 2017.
Construction of the Proposed Development
20 On 9 April 2018, Dan Goodwin of the third respondent sent an
email to the second respondent advising on the requirement for
a Sydney Water
tap in check (Building Plan Approval) to confirm that any excavation would not
affect the sewer main running in the
location of the garage.
21 On about 19 April 2018, the first and second respondents
received a plan dated 19 April 2019 [sic] from MGP Building & Infrastructure
Services, as Sydney Water Servicing Co-ordinator, showing the location of sewers
in the vicinity of the Walding Property.
22 On 1 May 2018, MGP Building & Infrastructure Services
produced a Service Protection Report for the Walding Property.
23 On 23 June 2018, an updated Survey Plan of the Walding
Property was prepared by David Frew.
24 On 13 July 2018, an updated Site Plan for the Walding
Property was prepared by Blue Sky Building Designs.
25 On 19 July 2018, the third respondent issued construction
certificate CC2018/0207 for the development the subject of the Development
Consent (the “CC”) and advised the first and second
respondents that the request to appoint the third respondent and Principal
Certifying Authority
for the works under the CC had been accepted.
26 At or around the start of September 2018, the first and
second respondents commenced construction of the development the subject
of the
Development Consent.
27 On 18 September 2018, the third respondent performed a
critical stage inspection of excavations and footings. On 20 September
2018, the
third respondent performed a steel inspection for the garage slab.
28 On 20 September 2018, GZ Consulting Engineers conducted a
site inspection relating to the concrete slab for the garage and confirmed
that
the concrete pour could proceed.
29 In about late September 2018, the concrete slab for the
garage was poured.
30 On 2 October 2018, the third respondent carried out a
critical stage inspection for the garage concrete blockwork.
31 In early October 2018, the applicants engaged a conveyancer
to undertake searches to determine the location of the front boundary
of the
Walding Property.
32 On 9 October 2018, the first and second applicants wrote by
email to the third respondent regarding its suspicion that part
of the Proposed
Development had been carried out beyond the front boundary of the Walding
Property. This was followed by a series
of emails (on 12 October 2018), letters
and telephone calls with representatives of the third respondent. The third
respondent confirmed
by email on 12 October 2018 that the matter had been
referred to Council’s Building Control Team.
33 The first and second applicants subsequently engaged Rygate
Surveyors to undertake an Identification Survey to determine the
location of the
garage and roof terrace.
34 On 19 October 2018, the third respondent carried out a
critical stage inspection of the steel for the garage roof slab. On 19
October
2018, GZ Consulting Engineers carried out a site inspection of the garage roof
slab and confirmed that the concrete pour
could proceed.
35 On 22 and 25 October 2018, the applicants contacted Mr
Thomas of Council to express their concerns regarding the location of
the
development.
36 On 25 October 2018, the applicants sent an email to Dan
Goodwin, Building Surveyor of the third respondent, expressing concern
that a
response had not been received from Council and that the garage appeared to be
located 6m forward of the front boundary of
the Walding Property.
37 On 29 October 2018, Dan Goodwin sent an email to the first
applicant, indicating that the query had been referred to the Manager
of
Planning for comment and that he would advise of the outcome.
38 On 1 November 2018, Anita Ugarkovic, Manager Building
Control of the third respondent, sent an email to the first applicant
indicating
that the works were progressing in accordance with the approvals and that
Council was unable to stop the construction.
The applicants responded to Ms
Ugarkovic’s email, indicating that the works were carried out on the
Dedicated Land, their privacy
was affected and that it was Council’s
responsibility to address this error immediately.
39 On 8 November 2018, the applicants sent an email to Nicki
Adams, Executive Officer of the third respondent, providing an overview
of the
matter (including the applicants’ request to order cessation of
construction) and requesting a meeting with the Mayor.
On 10 November 2018,
Nicki Adams responded, confirming that the applicants’ email of 8 November
2018 would be forwarded to
the Mayor.
40 On 12 November 2018, the applicants sent an email to Anita
Ugarkovic, indicating that a response to their previous emails had
not been
received and that the third respondent’s delay in addressing this matter
would increase the cost to Council of removing
the structure. On the same day,
Anita Ugarkovic responded, indicating that the matter has been escalated and
that Council’s
Planning Team was investigating.
41 On 19 November 2018, the first applicant called Nicki Adams,
Executive Officer of the third respondent, and also sent an email
querying
whether a meeting with the Mayor could be arranged soon, noting that
construction was continuing to progress and that a
response had not been
received from Council. On the same day Nicki Adams sent an email to the
applicants indicating that the Mayor’s
diary was heavily committed and
that it would not be possible to schedule a meeting at this time.
42 On 3 December 2018, a limited initial discussion took place
between the first applicant and the second respondent regarding
the development
on the Dedicated Land.
43 On 7 December 2018, David Kerr, General Manager Planning,
Place and Community of the third respondent, sent a letter to the
applicants,
indicating that:
a. throughout the development
application process, Council’s records and that of the LRS did not
indicate the Walding Property
was affected by road widening;
b. the Development Consent is valid until it is declared
invalid by a relevant Court; and
c. the works are consistent with the DA and
CC.
44 On 10 December 2018, Bick & Steele, solicitor for the
applicants sent a letter to the third respondent, indicating that
an independent
survey was being obtained to confirm that development had been carried out on
the Dedicated Land, alleging that due
to the absence of landowner consent, the
Development Consent was invalid and that proceedings would be brought if the
Dedicated Land
was not restored to its previous condition.
45 On 10 December 2018, Bick & Steele also sent a letter to
the first and second respondents, requesting the cessation of all
construction
on the Dedicated Land until a survey had been obtained.
46 On 10 December 2018, Rygate Surveyors was engaged by the
applicants to undertake an Identification Survey.
47 On 11 December 2018, Dan Goodwin of the third respondent
sent an email to the first respondent advising that the first and second
applicants had no power to force them to stop work and that only the third
respondent or the Court has that power. Dan Goodwin on
the same day also sent an
email to the first respondent advising that “nothing illegal had
occurred” and that the conduct
of the second applicant was “over the
top” and that if it continued the first and second respondent should
“consider
contacting the police”.
48 On 12 December 2018, field work was undertaken by Rygate
Surveyors to position the garage and roof terrace relative to the Walding
Property and the Clontarf Street road reserve.
49 On 14 December 2018, an Identification Survey report was
prepared by Rygate Surveyors confirming that the garage and roof terrace
were
located on the Dedicated Land.
50 On 17 December 2018, Bick & Steele sent a letter to the
third respondent, providing a copy of the Identification Survey
and requesting a
response from Council about what it proposed to do to address this matter. Bick
and Steele also sent a letter to
the first and second respondents, providing a
copy of the Identification Survey, and requesting undertakings that works cease
on
the Dedicated Land and that the Dedicated Land be restored to its original
condition.
51 On 21 December 2018, Moray & Agnew Lawyers, acting on
behalf of an insurer for the third respondent, sent a letter to Bick
&
Steele indicating that instructions were being sought and that a response would
be provided as soon as possible.
52 On 21 December 2018, the second respondent sent an email to
Bick & Steele indicating that legal advice was being sought
and that a
response would be provided in the new year.
53 On 5 February 2019, Bick & Steele sent a letter to the
first and second respondents (copied to the solicitor for the third
respondent),
attaching a draft Class 4 Summons and seeking urgent confirmation as to whether
the requested undertakings would be
provided.
54 On 6 February 2019, limited discussions took place between
the first applicant and the second respondent regarding the development
on the
Dedicated Land.
55 On 11 February 2019, Mills Oakley, solicitor for the first
and second respondents, sent a letter to Bick & Steele confirming
that the
first and second respondents undertake to cease all building and construction
works on the Dedicated Land so that negotiations
may ensue to resolving the
matter without recourse to litigation.
56 On 12 February 2019, Bick & Steele sent an email to
Mills Oakley, indicating that unless the first and second respondents
provided
the undertaking sought including that it would restore the Dedicated Land to its
previous condition, the Class 4 Summons
would be filed without further
notice.
57 On 12 February 2019, Mills Oakley responded to Bick &
Steele, indicating that a response would be provided by 13 February
2019 and
seeking advice on need for urgency and insistence on demolition of the
structures not on the Lu Property or posing a safety
risk.
58 On 13 February 2019, Mills Oakley sent a letter to Bick
& Steele, solicitor for the applicants, indicating that any development
on
the Dedicated Land would be “Council’s fixtures”, queried the
basis on which the first and second respondents
could demolish the structures,
and stated that any claim should be made against the third respondent.
Proceedings Commenced
59 The proceedings were commenced by way of Summons filed on 13
February 2019.
60 On 3 October 2019, an open letter was sent by Mills Oakley
to Bick Steele, setting out an approach by which the proceedings
might be able
to be resolved.
61 On 24 October 2019, an open letter was sent by Bick &
Steele to Mills Oakley, providing a written “assurance”
and
in-principal agreement to consider any design solution prepared by the first and
second respondents.
Evidence
- The
Applicants tendered the “Agreed Tender Bundle” (Ex A) and Ex LL-1 to
the affidavit of Ms Lin Lu affirmed 19 June 2019
(Ex B).
- The
Waldings tendered Ex AW-1 to the affidavit of Mrs Alexandra Walding affirmed 9
August 2019 (Ex 1) and a letter from Moray &
Agnew Lawyers to Bick &
Steele dated 14 March 2019 addressing the issue of the limitations period. The
Waldings also provided
a letter from Mills Oakley to Bick & Steele dated 24
July 2020 in relation to the demolition order sought by the Applicants (MFI-1).
- The
Applicants read the affidavit of Mr Alexander Brown, director of Rygate
Surveyors and registered surveyor, affirmed 20 June 2019.
Annexed to the
affidavit was Mr Brown’s independent expert report dated 20 June 2019.
- Other
lay and expert evidence is summarised below in relation to the parties’
arguments on discretion and relief (see [171]-[230] below).
Plans and documents relevant
to common boundary of Walding and Lu Properties
- Several
plans and documents which purport to show the location of the front boundary of
the Walding Property are in evidence.
- The
dimensions in Lot 1 DP 119074 of the southern side and northern side boundaries
of the Walding Property are 36.575 metres. This
follows the dedication of land
to the Council for the widening of Clontarf Street, as described in the SOAF at
pars 5-9. The “Dedicated
Land” excised from Lot 1. DP 119074 is
extracted below:
- On
or about 20 December 2016 the Waldings lodged development application (DA)
359/2016 (the DA) with the Council. The DA form identifies
the Walding Property
as Lot 1 DP 119074. The site area is stated to be 504.1 square metres.
- The
DA form was accompanied by:
(a) A survey plan dated 30 October 2016
(the Frew Survey Plan). The Frew Survey depicts the southern side boundary
measurement as
36.575 metres. The purported front boundary of the Walding
property has been drawn on the nature strip between Clontarf Street and
the
garden at the front of the Waldings’ house. The Frew Survey Plan includes
a notation that states “[n]o boundary survey
has been undertaken. Bearings
and dimensions are from title only and are subject to confirmation by boundary
survey”. The purported
front boundary is incorrect. It is unknown how the
front boundary as depicted on the Frew Survey Plan was located by the
surveyor.
(b) An existing site plan drawing (Existing Site Plan) dated 8 August 2015
prepared by Sullivan Design & Construction depicts
the southern side
boundary measurement as 36.575 metres. The location of purported front boundary
is incorrect.
(c) A “Notification Plan” drawing prepared by Sullivan Design
& Construction dated 8 August 2015 (Notification Plan).
The southern side
boundary dimension is shown as 36.575 metres. The purported front boundary is
incorrect.
(d) The Statement of Environmental Effects (SEE) dated 15 December 2016
prepared by Planning Approvals includes an aerial view of
the Walding Property
sourced from the “SIX Maps” viewer as extracted below. The SEE
includes the words “side boundary
(South) 36.575m”. On the Six Maps
image the purported front boundary has been drawn incorrectly as follows:
- The
DA was approved by the Council on 9 May 2017 including five plans affixed to the
Council’s Notice of Determination being:
(a) Approved site
analysis plan dated 8 August 2015 prepared by Sullivan Design & Construction
(reflecting the Notification Plan
described in [17(b)] above) which depicts
the southern side boundary as 36.575 metres and has the same purported front
boundary error.
(b) Proposed garage floor plans dated 8 August 2015.
(c) Proposed floor plans dated 8 August 2015.
(d) Proposed elevations dated 8 August 2015.
(e) Landscape plan dated 29 September 2016, with the southern side boundary
measurement depicted as 36.575 metres.
- On
23 June 2018, an updated survey plan of the Walding Property was prepared by
David Frew which shows the southern side boundary
measurement as 36.875 metres
(I assume that figure is an error, 36.575 metres being otherwise shown on other
plans in evidence).
No reference was made to this survey plan by the parties.
- On
13 July 2018, an updated site plan for the Walding Property was prepared by Blue
Sky Building Designs (2018 Site Plan). The 2018
Site Plan depicts the southern
side boundary measurement as 36.875 metres (I assume that figure is an error,
36.575 metres being
otherwise shown on other plans in evidence). No reference
was made to the 2018 Site Plan by the parties.
- Emails
sent from the Applicants to the Council dated 9 October 2018 and 22 October 2018
stated that the garage on the Walding Property
extended 4.573 metres beyond the
boundary of the Walding Property, extending to 41.148 metres level with the
southern boundary of
105 Clontarf Street Seaforth (the Lu Property), the
boundary not shared by the Walding Property. An identification survey of the
Walding Property in evidence showed the southern boundary to be 41.148 metres.
The error of depicting the purported front boundary
too close to Clontarf Street
was made in all the plans and documents accompanying the DA and in the plans
approved by the Council.
- The
Applicants engaged Rygate Surveyors in December 2018 to undertake an
identification survey (the Rygate Survey) of the Walding
Property. The Rygate
Survey depicts the southern side boundary measurement of the Walding Property as
36.575 metres. The Rygate Survey
identifies that the concrete garage under
construction does not fall within the boundary of the Walding Property.
Ground 1– jurisdictional error due to absence of
landowner’s consent
- Ground
1 of the Amended Summons alleges absence of a jurisdictional fact as no written
landowner’s consent was provided by the
Council for that part of the
garage to be located on the Council-owned Dedicated Land. The parties agree that
Clontarf Street is
a Council public road as defined in the Roads Act 1993
(NSW) (Roads Act).
- A
fundamental question that arises in these proceedings is whether they are
statute-barred by operation of s 101 given that notice of the grant of
development consent was published on 8 July 2017. To answer all the arguments
made in relation
to that question requires consideration of the nature of the
error in Ground 1 inter alia, assuming that the Applicants are successful.
I
will therefore first determine Ground 1
Ground 1 – absence
of jurisdictional fact due to no landowner’s consent
- The
summons states in relation to Ground 1:
21. Written consent from the owners of the land on which the
Proposed Development is to be carried out is a jurisdictional fact
that must
exist to enliven the Third Respondent’s power to grant the Development
Consent.
Particulars
i. Clause 49 of the Environmental Planning and Assessment
Regulation 2000 (EP&A Regulations)
ii. Clause 50(1)(a) and Part 1 of Schedule 1 of the EP&A
Regulations.
22. The Development Consent purportedly authorised the Proposed
Development to be carried out on the Walding Property and the Dedicated
Land.
23. The Third Respondent erred by determining to grant the
Development Consent in the absence of written consent from the owner
of the
Dedicated Land.
24. The purported decision of the Third Respondent to grant the
Development Consent was ultra vires.
Applicants’
submissions
- The
development consent as identified in the stamped plans purports to authorise
construction on the Council’s land. Prior to
the determination of the DA,
written consent by all owners of the land to which the DA relates including
written consent by the Council
in respect of the Dedicated Land on which the
block garage and roof terrace were proposed to be located, was not obtained.
Such written
consent is required by regs 49 and 50(1)(a) and Pt 1 of Sch 1
of the EPA Regulation.
- It
is well accepted that the requirement for landowner’s consent is
jurisdictional: Jeblon Pty Ltd v North Sydney Municipal
Council (1982) 48 LGRA 113 at 120 and King v Great Lakes Shire
Council (1986) 58 LGRA 366 cited in Sydney City Council v Ipoh Pty
Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 (Ipoh) at [37], and most
recently Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA
170; [2018] NSWCA 245 (Al Maha). It follows that subject to any
discretionary factors, the Court ought to declare the development consent
invalid if it is satisfied
in relation to Ground 1.
- The
Waldings rely on the decision in Sydney City Council v Claude Neon Ltd
(1989) 15 NSWLR 724 (Claude Neon). The Court of Appeal held that in
relation to a DA made to a council for consent to the erection of a structure
which projected
over a public road the council, as owner of the road under
the Local Government Act 1919 (NSW) (LG Act 1919), was
empowered to give its consent to the making of the application as required by
s 77(1)(b) of the EPA Act, the predecessor to reg 49 of the EPA
Regulation. The decision in Claude Neon and the other cases relating to
the same issue (or an extension of the issue being whether the Court on appeal
may exercise the same
power under s 39 of the LEC Act) do not deal with
circumstances in which a council was not aware that part of the land was not the
applicant’s land, but in fact owned by the council. That is a significant
distinguishing feature. On the Waldings’ case,
the Court must accept, in
application of Claude Neon, that “consent” can be
given unconsciously or unknowingly. It appears to be accepted, by the
Waldings’ admission
in its pleadings, that the Council was not aware that
the DA included Council land. It is accepted that Hope JA stated at 732 in
Claude Neon that the giving of development consent is a function of a
council, which is basic to the function of granting development consent.
The
exercise of administrative power conferred by statute requires that the consent
authority be conscious of the fact that development
was proposed over public
land. Claude Neon and Ipoh make clear that a council may knowingly
give its landowner’s consent by the grant of development consent. They are
not authority
that this can be done unknowingly.
- It
is imperative for the exercise of administrative power conferred by statute that
the basic ingredients of the exercise of that
power are met. In Claude
Neon and Ipoh there was no question that the consent authority was
conscious of the fact that development was proposed over public land. The
Council
as a landowner of public land is regulated under the EPA Act, the LG Act
and the Roads Act.
- The
administrative law principle stated in Lockwood v The Commonwealth (1954)
90 CLR 177; [1954] HCA 31 (Lockwood) by Fullagher J was “that an
act purporting to be done under one statutory power may be supported under
another statutory power...”.
In VAW (Kurri Kurri) Pty Ltd v Scientific
Committee (Established under s 127 of the Threatened Species Conservation Act
1995) (2003) 58 NSWLR 631; [2003] NSWCA 297 (VAW) whether the
decision to list a species under relevant legislation when the governing power
was incorrectly described by the relevant
committee was in issue.
Spigelman CJ considered that the essential exercise of statutory power in
that case was not invalid as:
56 To use the terminology of the cases quoted above, the
initiating mechanism:
• “in no way affected ...
the proceedings ... so that all the conditions on which the right of the
(Scientific Committee)
to exercise jurisdiction depended were in fact
fulfilled". (R v Bevan; Ex parte Elias and Gordon)
• “the power is to determine (a proposal for
inclusion) and that is the power which the (Committee) exercised.”
(Brown v West)
• “...no consequence attached to the specification
of a source of power that did not in fact exist. The circumstances
relevant to
the proper exercise of the power were exactly the same whether the source of
power was (s18(1) or s18(2)(b)) ... it was quite immaterial whether the source
was (s18(1) or s18(2)(b)).” (Mercantile Mutual Life
Insurance per Black CJ)
• “Nor does reliance upon one rather than another
head of power lead to any difference in the consequences for third
parties.” (Mercantile Mutual Life Insurance per Gummow J)
• “There was no distinction required by the
procedures ... dependent upon whether (the proposal was initiated under
s18(1)
or s18(2)(b)).” And “The environmental aspects of the (proposal) are
in truth the same whether the proposal was (initiated under
s18(1) or
s18(2)(b)).” (Rosemount Estates)
57 On the other hand, it could not be said that:
• “the
scope of relevant considerations differed” (Abbott v Shire of
Heidelberg)
• “what was done ... differed
markedly” (Newcrest Mining)
• “the consequences ... of each
exercise of power are different” (Saatchi &
Saatchi)
58 There is no aspect of the scope and purpose of the statute,
or of its content, which suggests that an act done in reliance on
a process
initiated by nomination, if not supported under such process but which could be
supported by a process commenced or continued
on the initiative of the
Committee, should be invalid (Project Blue Sky).
- Here,
the scope of considerations differed as between the decision to grant consent
exercising the power under s 79C as against the
decision made under
s 8 of the LG Act and its own considerations as a landowner. For example,
if the Council is unknowingly allowing
for consent to apply to develop its own
land, it has not considered:
(a) whether that impedes future
acquisition plans;
(b) if a Roads Act approval is required and / or is in place;
(c) if it intends to permanently dispose of the land; and
(d) what the consequences of allowing for private development on public land
in this location are, and whether that will provide a
precedent or form for it
to occur further.
- Not
only did “the scope of considerations differ” in the words used in
VAW extracted directly above, but clearly the “consequences of each
exercise of power differed”.
- The
line of authority in Claude Neon and Ipoh make clear that while a
council may knowingly give its landowner’s consent by the grant of
development consent, there is no
authority for the proposition that it could do
so unknowingly. The exercise of an administrative power unwittingly or
unknowingly
would at least have to meet the criteria in VAW / Lockwood as
set out above, and clearly this is not the case in relation to the grant of
consent in these proceedings, for inter alia, the reasons set out in [31] above.
- The
concept of “consent” (that is, allowing for something to occur)
imports with it an element of knowledge about what
is to occur, and control by
that person or entity, to then allow or authorise it. It is illogical to suggest
that any type of “consent”,
being by necessity an informed process,
could ever occur unknowingly.
Absence of owner’s consent
jurisdictional in nature
- The
absence of owner’s consent was the reason the Court of Appeal invalidated
the development consent in Al Maha. That result was not contested: Al
Maha at [82]. That absence of consent is jurisdictional.
Waldings’ submissions
Claude Neon answers Ground 1
- The
Waldings submitted that the Applicants’ case is contrary to Claude
Neon per Hope JA at 731:
In my opinion the principle (that is, that an approval for one purpose may
impliedly be an approval for another purpose) is to be
applied where a council
is asked to give consent to a structure which in part projects over a public
road. If the council gives development
approval to that structure, it is doing
two things. It is consenting as owner of the road to the making of the
application, and it
is also approving the application. The first consent is
necessarily implicit in the second consent, and in my opinion it does not
matter
that the council, when giving the second consent, is not conscious that it is
implicitly giving the first consent also. There
is no such difference between
the nature of the act of the council in giving its consent as owner and the
nature of the giving by
it of development consent to enable it to be said that
the actions have nothing to do with each other. If the council were in a
position
of an ordinary private owner of land in relation to the road, the
actions would be completely different. However that is not the
position, and if
a council considers that it should give consent to a development application it
must also consider that it should
give consent to the making of the
application.
I have thus far been dealing with the position where the council gives
development approval to the proposed structure. If it does
not give that
approval, either by refusing the application or by failing to deal with it, it
cannot be said that it has given its
consent to the making of the application.
(emphasis added).
- In
granting development consent, the Council granted landowner’s consent in
consenting to the application, whether or not it
was conscious of doing so.
Giving consent is an incident of land ownership. It is irrelevant whether the
Council was conscious of
giving that consent. By parity of reasoning, the
Council’s “Delegated Authority Report” in recommending
approval
of the DA was also recommending that the Council give its consent to
the application, whether or not the officer was conscious of
doing so. The
acceptance of the recommendation and the issue of the development consent was
consent in writing of the owner to the
making of the application for the
purposes of reg 49(1)(b) of the EPA Regulation and evidence of consent for
the purposes of Sch
1 Pt 1 cl 1(1)(i).
If absence
of landowner’s consent not jurisdictional
- To
the extent there was a breach of the EPA Regulation, that breach was technical
and does not render the decision to grant development
consent invalid (although
such a breach could be restrained through court action). In Project Blue Sky
Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
(Project Blue Sky), the majority stated at [91] (see also Burwood
Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404
(Ralan Burwood) per Sackville AJA at [155]):
An act done breach or a condition regulating the exercise of a statutory power
is not necessarily invalid and of no effect. Whether
it is depends upon whether
there can be discerned a legislative purpose to invalidate any act that fails to
comply with the condition.
The existence of the purpose is ascertained by
reference to the language of the statute, its subject matter and objects, and
the
consequences for the parties of holding void every act done in breach of the
condition. Unfortunately, a finding of purpose or no
purpose in this context
often reflects a contestable judgment. The cases show various factors that have
proved decisive in various
contexts, but they do no more than provide guidance
in analogous. circumstances. There is no decisive rule that can be applied;
there
is not even a ranking of relevant factors or categories to give guidance
on the issue.
- In
the present case, the Applicants contend that there has been a failure to comply
with an antecedent condition expressed in positive
language. As such, the
provision would be regarded as directory unless the purpose of the provisions
can only be achieved by invalidating
the result of the
departure.
If breach, development consent not invalid
- To
the extent there is a breach of reg 49 and Sch 1 of the EPA
Regulation, it is not due to the absence of the consent of the Council to
the making of the DA for development on its own land, but the form in
which the
consent is evidenced.
- Further,
an evident purpose of reg 49 of the EPA Regulation is one of property
rights. A DA is not to be lodged for consideration unless it is lodged with the
consent of the owner of the land.
It is obvious that if development consent is
granted, it cannot be carried out on the land without the owner's consent. As
Hodgson
JA observed in lpoh at [5], Santow JA agreeing at
[10]:
In my opinion, the requirement of consent of the owner to a development
application under the Act and Regulation is to be considered
as a means of
supporting the objects and the functioning of that legislative scheme; for
example by ensuring that consent authorities
are not troubled by applications
that are pointless because title requirements for carrying them out will not be
satisfied, and by
ensuring that owners are not prejudiced by having development
consents associated with their land which cause unwelcome increases
in the value
of land and thus in rates and taxes payable on it.
- In
the present proceedings, if there is a breach of reg 49 of the EPA
Regulation, the consequences of the breach will not be significant in
their impact. Public convenience is a relevant factor in determining whether
the
legislature intended a breach to invalidate its decision. In Project Blue Sky
the majority judgment said at [97] that (see also Ralan Burwood at
[176]):
... it is unlikely that it [is] a purpose of the legislation that an act done in
breach of a statutory provision should be invalid
if public inconvenience would
be a result of the invalidity of the act.
- Adopting
and adapting the reasoning in Ralan Burwood at [177] and [178], if
such a breach were to render the consent invalid, the public inconvenience that
would flow from the failure to properly evidence
owner's consent is likely to
include the consequence that an innocent developer carries out development in
breach of the EPA Act, thereby committing an offence against the EPA
Act. Such an inconvenience would be disproportionate to the mischief
sought to be protected by reg 49 of the EPA Regulation. This is a strong
indicator that such a breach would not render the development consent
invalid.
- For
these reasons, the breach of the EPA Regulation would not render the development
consent invalid.
- Al
Maha does not address the question of whether after three months s 101
protects a decision to grant development consent notwithstanding
the absence of
owner’s consent. Woolworths Ltd v Bathurst City Council (1987) 63
LGRA 55 (Woolworths v Bathurst) is directly on point.
- In
Woolworths v Bathurst, Cripps CJ held that a challenge to the validity of
a development consent based upon the absence of owner's consent was precluded
from challenge by the equivalent of s 101 (then s 104A). He
said:
Mr McClellan submitted that failure of an owner to consent to a development
application necessarily renders the application void.
In his submission, it
follows that if the correspondence referred to above fell short of the consent
required (and if the challenge
was brought within 3 months), the development
consent would be void. He thereupon submits that if the development application
was
void, any consent granted by the council was a decision in excess of
jurisdiction or ultra vires and could not be protected by the
privative clause
referred to above. I accept that privative clauses must be read strictly and it
is the policy of the courts to give
them no greater width than is warranted in
all the circumstances. However, the meaning of the clause must be determined in
the context
of the legislative enactment. Its main purpose is to remove any
uncertainty that might exist concerning the validity of development
consents.
Development consents run with the land. The mischief sought to be cured by
precluding challenges (other than those based
on bad faith, denial of natural
justice and perhaps, manifest excess of jurisdiction) is, I think, obvious. It
would seem to me,
therefore, that s 104A precludes a challenge to the validity
of the development consent and, in my opinion, precludes a challenge
to the
development application where such a challenge is based upon circumstances
referred to in this judgment.
- The
correctness of this passage in Woolworths v Bathurst has not been doubted
in more than 30 years. This approach has been consistently applied, for example
in P W Rygate & West v Shoalhaven City Council (1996) 91 LGERA
417. Pearlman J applied Woolworths v Bathurst when her Honour said
at 422:
In my opinion, the conclusion that s 104A operates and takes effect in relation
to a challenge to a development consent on the basis
of s 83 is
consistent with the scope and purpose of s 104A, which was stated by Cripps J in
Woolworths Ltd v Bathurst City Council as follows:
Its main purpose is to remove any uncertainty that might
exist concerning the validity of development consents. Development consents
run
with the land. The mischief sought to be cured by precluding challenges ... is,
I think, obvious.
- It
is also consistent with what Spigelman CJ said in Woolworths Ltd v Pallas
Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 (Pallas Newco)
at [66].
- Unless
s 101 is construed differently from the construction in Pallas Newco, the
absence of owner’s consent would be protected by s 101 three months
after the requisite notice.
Ground 1 established
- The
facts of this case raise matters which are complex to unravel in a legal sense.
Al Maha identified at [85]-[94] the legal framework under the EPA Act and
EPA Regulation for providing landowner’s consent for a DA.
Preston CJ
(Leeming and Basten JJA agreeing) identified how land on which development is
intended to be carried out is identified:
91 The land on which the development is to be carried out is to
be determined not only from the address and formal particulars
of title shown on
the development application form but also from the documents that must accompany
the development application. The
Regulation requires the development application
to be accompanied by specified documents, including “a site plan”,
“a
sketch of the development”, and “a statement of
environmental effects” (in the case of development other than designated
development or State significant development) or “an environmental impact
statement” (in the case of designated development
or State significant
development) (cl 2(1)(a),(b),(c),(e) of Sch 1 of the Regulation). The site plan
must indicate, amongst other
matters, “the location, boundary dimensions,
site area and north point of the land” (cl 2(2)(a) of Sch 1 of the
Regulation).
The sketch must indicate the following matters:
(3) The sketch referred to in subclause
(1) (b) must indicate the following matters:
...
92 A statement of environmental effects must indicate, amongst
other matters, “the environmental impacts of the development”,
which
necessarily involves a description of the development and the environment that
the development will impact (cl 2(4) of Sch
1 of the Regulation).
...
93 These accompanying documents describe the development to be
carried out and the land on which the development is to be carried
out.
94 If the accompanying documents reveal that part of the
proposed development extends to land other than the land whose address
and
formal particulars of title are shown in the development application form, that
other land is also the subject of the development
application: see Owners
– Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32].
Conversely, the description of the land on which the development is to be
carried out in the accompanying documents (such as the statement
of
environmental effects) can also confine the land to which the development
application relates to be a lesser parcel of land than
is described in the
development application form: see Rose Bay Afloat Pty Ltd v Woollahra Council
(2002) 126 LGERA 36; [2002] NSWLEC 208 at [60]- [63].
- In
Al Maha no issue arose of a site plan showing incorrect boundaries being
lodged in support of a DA.
- The
DA form lodged with the Council referred only to Lot 1 DP 119074 as the land
where development was proposed. As identified above
in [17]-[22], none of the plans
lodged with the DA showed the Waldings’ front boundary in the correct
location.
- The
Frew Survey Plan lodged with the DA stated expressly that it did not indicate
the boundaries of the Walding Property. The notation
states that bearings and
dimensions are from title only and are subject to confirmation by a boundary
survey. It identifies (being
the same figure as the deposited plan dimensions)
the side boundary length of the Waldings’ northern and southern boundaries
as 36.575 metres. Wherever 36.575 metres is measured from the rear boundary
would be the correct front boundary. The survey indicates
a line purporting to
represent a front boundary. On the assumption the rear boundary is generally
accurately located on the survey,
if 36.575 metres is measured accurately
the Waldings’ land cannot include the approximately 4.5 metres of
Dedicated Land. The
marked front “boundary” line has apparently been
interpreted as showing the front boundary but includes the Dedicated
Land. It is
difficult to understand what the survey purports to show at the front of the
Waldings’ property given these inconsistencies.
- All
the other documents lodged in support of the DA showed the southern side
boundary dimension as identified in Lot 1 DP 119074 of
36.575 metres but
that was not the accurate measurement of the land as intended to be encompassed
by these plans. Unfortunately the
site plan lodged arguably did not comply with
reg 50(1)(c) of the EPA Regulation which specifies that a DA must be
accompanied by
documents specified in Pt 1 of Sch 1. Under Sch 1 Pt 1
cl 2(1)(a) and (b) a DA must be accompanied by a site plan of the land and
a sketch of the development. Under cl 2(2)(a) the site plan required by
subcl (1)(a) must indicate the location, boundary dimensions
and site area
inter alia. Under subcl (3)(a) the sketch of the development must include
the location of any proposed buildings or
works in relation to the land’s
boundaries and adjoining development inter alia. The accurate boundaries of Lot
1 DP 119074
were not identified in any site plan or the sketch of the
development.
- A
Six Maps “plan” was also lodged with the DA in the SEE. Such
a plan is not required by the EPA Regulation. Another version also appears in
the Council’s Delegated Authority Report.
This incorrectly depicts the
location of the Waldings’ front boundary as incorporating the Dedicated
Land. The Six Maps extract
in evidence annexed to the affidavit of Mrs Walding
contains a written caveat that Land and Property Information (LPI) “does
not warrant or represent that the information is free from errors or omission,
or that it is exhaustive. LPI gives no warranty in
relation to the information,
especially material supplied by third parties”.
- The
Council approved the DA including five plans identified in [18] above. The approved
site analysis plan repeats the length of the side boundaries in the Frew Survey
Plan, which in turn repeats
the side boundaries of the deposited plan but shows
the purported front boundary beyond that identified length. It has presumably
been prepared for, and been interpreted by the Council as seeking approval for
development on land which includes the Dedicated Land.
The boundary measurement
of 36.575 metres is not correct in showing the side boundary length of the
land for which development consent
was sought.
- These
circumstances inform the essential issue of whether landowner’s consent
could be granted implicitly by the Council. Clearly
no written consent was
provided explicitly. The Council has filed a submitting appearance and not
participated in the hearing. It
is an agreed fact that the Council was unaware
that the DA sought development consent to erect a permanent structure on the
Dedicated
Land which was a public road reserve. In other words, the Council
understood the DA to seek consent for development on private land.
This agreed
fact suggests that the inference can be made that the Council was unaware that
its consent as landowner was required
for the DA before it.
Landowner’s consent absent when development consent
granted
- Regulation
49(1)(b) of the EPA Regulation provides that a DA may be made by any person with
the consent in writing of the owner of
land to which the DA relates. It is
settled law that landowner’s consent must be provided by the time a
council determines
whether to grant development consent. Not having
landowner’s consent at the time of lodging a DA is not fatal to the
validity
of a DA: Al Maha at [96]-[98].
- In
Claude Neon Hope JA held that in granting consent to a DA under the EPA
Act to undertake development (hanging an advertising sign projecting
over a
public road) involving a public road vested in the control (title) of the
council under s 232 of the LG Act 1919, a council
does two things. It
consents as owner of the road to the making of the application and it also
approves the application. The consent
to the development implicitly provides
consent to the application concerning the use of a public road, at 731C. It does
not matter
that the council when giving approval is not conscious that it is
implicitly giving consent to the application as the relevant landowner
of the
public road. This conclusion was based on the applicability of the principle
that a council can impliedly exercise two powers
when all it purports to do is
exercise one, at 730C. The LG Act 1919 specifies functions and duties local
councils may or must exercise
in relation to the control of public roads
including the regulation of advertisements which extend over the alignment of a
road.
A licence for such structures can be issued. Hope J discussed the
difference between a private landowner and the owner of publicly
controlled land
at 731D as part of his reasoning that a council can give consent implicitly in
accepting and approving a DA which
affects public land under council control.
- While
landowner’s consent of a public authority can, according to Claude
Neon, be given implicitly through the acceptance of a DA that explicitly
relates to a public road, the important distinction the Applicants
seek to make
in this case is that the Waldings’ DA on its face did not purport to
relate to a public road. The Applicants’
DA purported to relate only to
their land. The Council was unaware when it granted development consent to the
DA that it was consenting
to development on land reserved for a public road.
While Claude Neon is authority that landowner’s consent can be
given impliedly by the action of granting development consent, in Claude
Neon the parties were aware that development over a public road was in
issue.
- It
was unnecessary to address in Claude Neon the issue that arises here of
an unknowing council as owner of public land. It would seem fundamental
to the exercise of statutory power, whether exercised expressly or by
implication, that a consent authority
understand that it is exercising a
function of its statutory power. Surprisingly perhaps no authority directly on
this point has
been identified, the Applicants relying on Lockwood and
VAW to emphasise that when exercising statutory power relevant
considerations must be applied by a decision-maker. In VAW it was found
that the necessary considerations were undertaken in relation to the relevant
head of statutory power despite a different,
incorrect statutory power being
identified by the decision-maker, resulting in a finding that a statutory
decision was not invalid.
By analogy, and as the Applicants argued,
considerations relevant to whether development consent to a permanent structure
being built
on a public road here the Dedicated Land should have been considered
by the Council as part of its assessment of the DA in its role
as the owner and
manager of a public road.
- In
accepting the Applicants’ DA the Council was not implicitly providing
landowner’s consent because it was unaware that
it needed to do so. It did
not purport to undertake considerations necessary to the exercise of its
statutory power to give landowner’s
consent in relation to public land,
being land reserved under the Roads Act. Accordingly, no
landowner’s consent was given by the Council to that part of the DA
proposed on the Dedicated Land at the
time it approved the
DA.
Absence of landowner’s consent jurisdictional
error
- Al
Maha, the most recent Court of Appeal decision on the effect of the
absence of landowner’s consent for the validity of a DA, there
in the
context of private land, held that the giving of owner’s consent to a DA
in relation to the owner’s land is an
essential prerequisite to a consent
authority granting development consent, at [95] per Preston CJ (Leeming and
Basten JJA agreeing),
citing Ipoh at 34(c) and (e). In reaching that
conclusion the statutory framework under the EPA Act and EPA Regulation is
identified at [85]-[90],
including that the owner whose consent to the making of
a DA is required is the owner of the land on which the proposed development
the
subject of the DA is to be carried out. Why that is the case is further
elucidated at [97]-[98]:
97 The development application will be “ineffective and incomplete”
whilst so ever the development application does not
contain the information and
is not accompanied by the documents that the EPA Act and the Regulation require
to be provided in order
for the consent authority to validly exercise the power
to determine the development application. There can be no valid determination
of
the development application until there is substantial compliance with such
statutory prescriptions: McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR
504; 161 LGERA 170 at [189].
98 Substantial compliance may be satisfied by the later provision of the
required information or documents: Botany Bay City Council v Remath
Investments No 6 Pty Ltd at [14], [18] and McGovern v Ku-ring-gai
Council at [187]-[200]. In particular, the lack of owner’s consent to
a development application can be cured at any time up until the
determination of
the application: see Botany Bay City Council v Remath Investments No 6 Pty
Ltd at [5]-[7] and cases therein cited.
- It
was not disputed that landowner’s consent to carrying out development is a
jurisdictional prerequisite to a valid development
consent, at [82].
“Jurisdictional” means the existence of a precondition to the
engagement of statutory power: Trives v Hornsby Shire Council (2015) 89
NSWLR 268; [2015] NSWCA 158 (Trives) at [17].
- The
Waldings’ submissions did not directly address Al Maha,
apart from submitting that it did consider the application of s 101, which
is correct that not arising on the facts. Their submissions
cite well-known
principles of statutory construction in Project Blue Sky and Ralan
Burwood to submit that a breach of the EPA Regulation would not give rise to
invalidity of the DA is not supported by Al Maha. Further while obiter
observations of Hodgson JA at [10] in Ipoh are cited to identify
principles for identifying the purpose of reg 49 as a matter of property rights
the context for these was consideration
of the power of the Court under s 39(2)
of the LEC Act to give consent to a DA. The development consent the subject of
Al Maha was declared invalid because it involved jurisdictional error due
to the absence of power to grant development consent when no owner’s
consent had been obtained inter alia, at [279]. Ipoh Tobias JA (Santow JA
and Hodgson JA agreeing with additional observations) at [34(d), (e)] states
precisely that.
- Woolworths
v Bathurst, which the Respondents also relied on, considered quite different
facts including that the council was informed that owner’s
consent had
been given. I agree with the Applicants that the facts of that case informed the
outcome and are relevantly different
from this matter. Woolworths v
Bathurst pre-dates Pallas Newco and adopted the approach to
s 101 which was confirmed in Pallas Newco. In that sense it
represents one of the several cases before Brown where s 101 was
applied strictly to prohibit the commencement of proceedings three months after
public notice was given. That approach
was confirmed in Pallas Newco. It
does not assist in resolving whether that approach must of necessity change
because of the impact of Kirk, a significant matter I turn to next.
Does s 101 bar these proceedings?
- As
I have upheld Ground 1 and found the absence of landowner’s consent was a
jurisdictional error, meaning a precondition to
the valid determination of the
Waldings’ DA was not identified, a threshold issue arises of whether these
proceedings are maintainable
given s 101 of the EPA Act, a difficult
question. They were commenced on 13 February 2019. A notice of the grant of
development consent
was published on 8 July 2017. Under s 101,
proceedings are required to be commenced within three months of that notice
being published. I did not allow
an amendment of the Applicants’ summons
during the hearing alleging that the public notification did not comply with the
EPA
Act and EPA Regulation. The Applicants’ counsel submitted orally that
I needed to be separately satisfied that the notice was
valid for the purposes
of s 101. I do not agree this is necessary where the issue is not otherwise
before me, see also by analogy
Nominal Defendant v Gabriel (2007) 71
NSWLR 150; [2007] NSWCA 52 at [109] concerning the effect of a formal
admission.
Applicants’ submissions
- Section
101 is not a bar as the grounds of judicial review include a jurisdictional
error, being the failure to obtain owner’s
consent. The decision of
Preston CJ in Brown v Randwick City Council (2011) 183 LGERA 382; [2011]
NSWLEC 172 (Brown) should be followed. The Applicants agree that
the comments at [40] in Brown are obiter, as the ratio of the decision
was that the relevant notice was not issued in accordance with the EPA
Regulation so that
the limitation in s 101 did not commence to run. His
obiter comments are persuasive and have been followed as a matter of comity.
Paragraph [40] is in definitive terms, is correct and not so “clearly
wrong” that it would not be followed as a matter
of comity (and
correctness), as it was by Pepper J in Mosman Municipal Council v IPM Pty Ltd
(2016) 216 LGERA 252; [2016] NSWLEC 26 (IPM). Ying v Song
[2009] NSWSC 1344 at [19] cited in IPM at [58] identifies that weight to
be accorded to obiter remarks varies depending on the circumstances of a case to
the effect that
“... considered dicta of appellate courts, though not
strictly binding on courts in a lower or equal position within the judicial
hierarchy, must be afforded great weight and should be departed from only with
the greatest of caution”.
- Preston
CJ gave a complete view of the appropriate approach post Kirk v
Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (Kirk) to
s 101 in Brown at [37], and his reasons are forceful in concluding
that s 101 did not apply to prevent the judicial review challenge in that
case.
The dicta in Trives that there is “a large question” in
the post-Kirk context concerning time limited provisions does not require
that a choice be made between the two obiter dicta in Brown and
Trives. IPM considered all relevant cases and adopted
Brown, albeit also in obiter, in the interests of judicial comity.
- At
[39]-[40] in Brown Preston CJ stated that Kirk has the effect
identified therein. This confirms that Kirk, a High Court decision,
prevails over Pallas Newco. The Court does not have to wait for the Court
of Appeal to consider matters identified in Kirk before following it (as
the Attorney-General also submits in this case). How the courts sit within the
constitutional hierarchy was
examined in Gett v Tabet (2009) 254 ALR 504;
[2009] NSWCA 76 from [261], particularly [263], [274], [283] and [286]. High
Court departures from previous approaches to the law are binding on
lower state
courts including courts of appeal.
- The
exclusive jurisdiction conferred on the Court is set out in s 20(2) and (3)
of the LEC Act. This was referred to in Brown at [39] stating the
supervisory jurisdiction of the NSW Supreme Court is divided between the Supreme
Court and this Court. Section
20(2) provides expressly that the Court has the
same civil jurisdiction as the Supreme Court to hear and dispose of certain
proceedings.
Subsection (3) specifies all planning and environmental laws for
the purposes of subs (2).
- Hoxton
Park Residents Action Group Inc v Liverpool City Council (2011) 81
NSWLR 638; [2011] NSWCA 349 (Hoxton Park), decided after Kirk,
does not assist the Waldings as the Court of Appeal held that the public notice
did not comply with reg 124 and s 101 did not arise.
No consideration of
s 101 was necessary. No consideration of Kirk was undertaken, or its
implications for s 101.
- Turning
to WaterNSW v Harris (No 3)
[2020] NSWLEC 18 
(WaterNSW), relied on
by the Waldings, these were Class 5 criminal proceedings in which a
collateral challenge to an approval issued under the
WM Act was mounted. The
defendants argued that s 47 of the WM Act, a privative clause, did not
protect this challenge based on jurisdictional
error. The WM Act is not listed
as a planning and environmental law in s 20(3) of the LEC Act for the
Court’s jurisdiction
as described in s 20(2). The Court is not
functioning in the same capacity as the Supreme Court in that context. Similar
observations
can be made about the obiter comments of Basten JA in Randren
House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA
14 (Randren House CA) at [9] which also concerned the WM Act. The Court
in Brown and IPM was exercising the “divided
jurisdiction” referred to in Brown at [39].
- Further,
firstly s 47 of the WM Act is similar but not identical to s 101,
containing additional subsections. Secondly, it is part
of a different statutory
regime. Thirdly, it does not prevent the Court following the decisions in
Brown and IPM.
Waldings’ submissions
- Pallas
Newco, which considered s 101, is binding on the Court at first
instance and cannot be changed other than by the Court of Appeal. In Pallas
Newco the Court of Appeal sat a bench of five. Four of five agreed with
Spigelman CJ. At issue was whether the question of the proper characterisation
of a development as being one that was permissible with consent or was
prohibited was a jurisdictional fact. Spigelman CJ held that
at [79] s 101
protected decisions from jurisdictional error as part of the statutory
construction process he undertook. Brown should not be followed as
Preston CJ did not follow Pallas Newco which was not a course open to him
at first instance as he was otherwise bound by that decision.
- In
Hoxton Park Basten JA considered Pallas Newco at [22] and in
Trives at [44]. Contrary to the Applicants’ submissions, Pallas
Newco, Hoxton Park and Trives all support the conclusion that
s 101 does protect decisions that are affected by jurisdictional error.
- In
Trives, Basten JA also considered in obiter the relevance of Kirk
in relation to s 101. Basten JA identified that the High Court was not
saying there can be no legislation affecting the availability
of judicial review
in state supreme courts and that the expansion of Kirk beyond its sphere
of operation must be undertaken with caution. Further, s 101 does not
directly affect the jurisdiction of the Court
of Appeal to review an
administrative decision, rather imposing a limit on review by the Court because
of other statutory provisions
which confer exclusive jurisdiction on the Court
in relation to planning and environmental law at [45]-[46], [48].
- The
observations in Brown at [39]-[40] relied on by the Applicants were
obiter and did not consider authorities such as Pallas Newco.
Brown was delivered four years before Trives and two months before
Hoxton Park. That a judge at first instance considers Pallas Newco
must be decided differently in light of Kirk does not mean he or she is
not bound by Pallas Newco.
- A
judge at first instance cannot dismiss such clarification of the law on the
basis that it is only obiter. To do so is wrong. In Farah
Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
(Farah Constructions) at [134] the High Court in a joint judgment
admonished the NSW Court of Appeal when it said that the court's decision on a
particular matter
was:
... unsupported by authority and flew in the face of seriously considered dicta
uttered by a majority of this Court.
- Section
101 has been considered in at least three decisions of the Court of Appeal,
Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005]
NSWCA 455 (Anambah Homes), Hoxton Park and Trives. The
latter two judgments were determined after Kirk. Trives must be
regarded as seriously considered dicta.
- Adhering
to principle, Robson J in WaterNSW followed what Basten JA said in
Trives, rather than Brown, in relation to an
equivalent of s 101, being s 47 of the WM Act, at [214]-[211]. His
Honour recognised the weight that should be given
to Trives and that it
would only be departed from with caution, at [220]. The reasoning of Basten JA
at [9] in Randren House CA has direct application to s 101 of the
EPA Act.
- In
reply, in Pallas Newco, s 101 was construed in accordance with
Project Blue Sky at [78], to the effect that the meaning of a statute is
to be given the effect that the legislature is taken to have intended. The
Court
of Appeal construed s 101 as not intending to deny access to the courts,
but rather to permit a challenge for a discrete period,
at [78]-[80]. Section
101 as applied in this case is in the same terms as in Pallas Newco. The
Applicants do not refer to s 31 of the Interpretation Act 1987
(NSW).
- Kirk
has no direct application to the operation of s 101 and s 20 of the LEC Act as
identified by Basten JA in Trives at [45]-[46]. Kirk concerned a strong
form of privative clause, not a provision imposing a limitation period on
otherwise available
relief: Trives at [41], [46], [48]. Section 101 does
not purport to prevent judicial review of development consents or complying
development certificates.
Rather, it imposes a time limit on challenges. If the
time constraint is effective, it will limit the inconvenience resulting from
the
availability of review in the sense of uncertainty with respect to the valid
operation of a relevant consent or certificate,
pending the expiration of three
months from the date of public notification: Trives at [41].
Spigelman CJ said the same in Pallas Newco at [78]-[80].
- The
Court is not the subject of constitutional protection, as a specialist state
statutory court. At issue is whether s 101 removes
a defining
characteristic of the Supreme Court of a state contrary to s 73 of the
Commonwealth Constitution: Trives at [48], Kirk at [55]. The
Applicants’ submissions elide the effect of s 101 in limiting the
jurisdiction of the Court with its entirely separate effect of limiting the
jurisdiction of the Supreme Court, adapting
Basten JA in Randren House CA
at [9] referring to s 47 of the WM Act. The ratio of Kirk has no
direct application to Pallas Newco and does not overrule it. The
seriously considered obiter by the Court of Appeal in Trives,
Randren House CA and Hoxton Park, all decided after
Kirk, must be given greater weight than the obiter in Brown,
effectively an ex tempore decision.
- The
Attorney-General submits that s 101 is not invalid and does not exceed the
legislative power of the NSW Parliament. That reasoning
is based upon a
construction of s 101 consistent with the construction adopted in Pallas
Newco and the approach in Trives referred to above. The
Attorney-General’s submissions are adopted. Section 31 of the
Interpretation Act has no application and Pallas Newco applies and
is binding on the Court. Counsel for the Attorney-General did not submit that it
was wrongly decided.
- Only
the Hickman grounds as the basis for judicial review remain, as a result
of Pallas Newco. The lack of owner’s consent is not jurisdictional,
relying on Woolworths v Bathurst to establish the proposition that a
challenge to a consent is precluded by
s 101.
Attorney-General’s submissions
- The
Attorney-General submitted that the Court must consider the effect of
Kirk decided since Pallas Newco and as considered in Brown.
The Court is arguably a superior court of record which has exclusive
jurisdiction otherwise held by the Supreme Court of NSW, a
Ch III Court under
the Commonwealth Constitution. Robson J was correct in WaterNSW albeit
considering s 47 of the WM Act.
- The
Attorney-General contends that s 101 is effective according to its terms,
notwithstanding the principles in Kirk. In Kirk at [98], the Court
held that the supervisory jurisdiction of the Supreme Courts “was at
federation, and remains, the mechanism
for the determination and the enforcement
of the limits on the exercise of state executive and judicial power by persons
and bodies
other than the Supreme Court. That supervisory role of the Supreme
Courts exercised through the grant of prohibition, certiorari
and mandamus (and
habeas corpus) was, and is, a defining characteristic of those
courts”.
- Their
Honours went on to say at [100]:
This is not to say that there can be no legislation affecting the availability
of judicial review in the state Supreme Courts. It
is not to say that no
privative provision is valid. Rather, the observations made about the
constitutional significance of the supervisory
jurisdiction of the state Supreme
Courts point to the continued need for, and utility of, the distinction between
jurisdictional
and non-jurisdictional error... Legislation which would take from
a state Supreme Court the power to grant relief on account of jurisdictional
error is beyond state legislative power. Legislation which denies the
availability of relief for non-jurisdictional error of law
appearing on the face
of the record is not beyond power.
- In
light of the principles in Kirk, it is difficult to see why s 101
(s 4.59) of the EPA Act should be interpreted as including the exceptions
described in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598;
[1945] HCA 53 (Hickman) unless it is necessary to preserve the
constitutional validity of the sections. That is because the law is now clear
that the Commonwealth
Constitution preserves the supervisory role of state
supreme courts in relation to jurisdictional error. As Garling J observed in
Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837
(Carnley) at [15], “[i]t appears now, as a result of Kirk,
that the Hickman principle ... has little, if any, work to do at State
level. State privative clauses can no longer protect an inferior court or
tribunal
from review by the Supreme Court of NSW when jurisdictional error has
occurred” (see also Aronson, Groves and Weeks, Judicial Review of
Administrative Action & Governmental Liability (6th ed, 2017, Thomson
Reuters) at [18.160], [18.210] (Aronson, Groves and Weeks)).
- It
is important that Kirk and Hickman were concerned with clauses
that exclude jurisdiction altogether, rather than clauses that create a time
limit on judicial review
applications. So far as the Attorney-General is aware,
there has been no decision at an appellate level determining that a limitation
period in State legislation is invalid by reason of the decision in
Kirk.
- In
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007)
228 CLR 651; [2007] HCA 14 (Bodruddaza) at [57]-[58], the plurality said,
in relation to a limitation period in respect of proceedings under s 75(v)
of the Commonwealth
Constitution:
The fixing upon the time of the notification of the decision as the basis of the
limitation structure ... does not allow for supervening
events which may
physically incapacitate the applicant or otherwise, without any shortcoming on
the part of the applicant, lead to
a failure to move within the stipulated time
limit. The present case where the plaintiff was one day late, apparently by
reason of
a failure on the part of his migration adviser, is an example.
It is no answer to say that some unfairness is to be expected and must be
tolerated. The above examples are instances where the time
limit subverts the
constitutional purpose of the remedy provided by s 75(v). Further examples
may be suggested from practical experience.
- The
Court in Bodruddaza at [53] held that a law with respect to the
commencement of proceedings under section 75(v) will be valid “if, whether
directly or as a matter of practical effect, it does not so curtail or limit the
right or ability
to seek relief under s 75(v) as to be inconsistent with
the place of that provision in the constitutional structure, as explained in
Plaintiff S157/2002”.
- As
Basten JA stressed in Trives at [48]-[49], the reasoning in Bodruddaza
in relation to the constitutional limits of the Commonwealth Parliament does
not necessarily lead to the same conclusion with respect
to the limits imposed
on a state legislature. As his Honour put it at [48], “[t]he question in
that regard, as identified in
Kirk, is whether such a limitation would
remove ‘a defining characteristic’ of the Supreme Court of a State,
so as to contravene
the requirement of s 73 of the Commonwealth
Constitution that such a body continue to exist.”
- The
Attorney-General accepts that the weight of current first instance authority in
this Court is that s 101 – and its replacement s 4.59 –
does not preclude judicial review for jurisdictional error: Brown at
[37]-[40] per Preston CJ; Community Association DP 270253 v Woollahra
Municipal Council (2013) 211 LGERA 412; [2013] NSWLEC 184 (Community
Association) at [74] per Pain J; Central Coast Council v 40 Gindurra Road
Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171
(Gindurra) at [60] per Pain J; Lithgow City Council v Newera Defendo
Pty Ltd [2019] NSWLEC 188 at [20]- [23] per Moore J. However, these decisions
do not address the dicta of Basten JA in Trives.
- In
WaterNSW at [219]-[221], Robson J held that s 47 of the WM Act was
effective to override “the otherwise available methods of extending
the
‘judicial review period’.” This is partly due to the clear
intention in the statute of providing for “certainty
on the part of those
who have acted, and conducted their affairs, in reliance upon a valid system of
regulation”: at [221].
- In
IPM at [70], Pepper J said she would be inclined to follow Brown
for reasons of comity. Her Honour had the benefit of Basten JA in
Trives. The decision predates WaterNSW.
- This
Court should adopt the approach, accepted by Pepper J as arguable in IPM
at [68]-[69], that a clause imposing a time limit on judicial review may be
valid, at least where the time limit is a reasonable one,
and that it is further
arguable that s 101 (and now s 4.59) is a reasonable limitation. In
Hoxton Park Residents Action Group Inc v Liverpool City Council [2010]
NSWLEC 242 (Hoxton Park (LEC)) at [53], Biscoe J opined that the
three month period in s 101 was reasonable.
- In
considering whether the limitation period is reasonable, it is important to
recall that the limitation period only applies if there
has been valid public
notice given in accordance with the EPA Regulation. If the public does not
receive the notice to which it is
entitled under the legislation, then the
strict time limit does not operate.
- The
reasonableness of a limitation period must depend on the nature of the statutory
rights and regime in question. In the present
case, the essence of a development
consent is that it gives permission, following a statutory process for public
consultation, to
develop land.
- In
reply to the Waldings’ submission that the Court is not the subject of
constitutional protection as a specialist statutory
court, the Attorney-General
contends that, contrary to the suggestion in Basten JA’s obiter
observation in Randren House CA at [9], if there is any judicial review
jurisdiction preserved by the principles in Kirk, it is properly vested
in this Court by s 20(2) of the LEC Act.
- Strictly,
this is a matter of statutory construction, rather than an issue arising
directly under the Commonwealth Constitution. It involves concluding that
s 20(2) confers on this Court the Supreme Court’s judicial review
jurisdiction including such jurisdiction as cannot be taken away
consistent with
the principles in Kirk, and then reading s 101 of the EPA Act as
subject to that conferral of jurisdiction. In other words, if there is a
“hierarchy”
of provisions, as described by the High Court in
Project Blue Sky at [70], the leading provisions are ss 20(2) and 71
of the LEC Act, and s 101 should be read as subject to that overarching
conferral
of such judicial review jurisdiction as the Supreme Court has in
relation to the LEC Act.
Section 101 does bar proceedings
Pallas Newco does not preclude consideration of Kirk
- In
Pallas Newco a bench of five judges in the Court of Appeal held that
s 101 protected development consents from judicial review challenges on
grounds
of jurisdictional error, save only for errors identified in Hickman
(Spigelman CJ at [83]-[84]).
- On
the Waldings’ case concerning s 101 and the binding application of
Pallas Newco, the Court could not entertain any consideration of
Kirk. I consider that on the contrary, Kirk in the High Court can
and should be considered by lower courts to determine if it changes the law, as
the Applicants’ counsel
submitted referring to Gett v Tabet,
and also as the Attorney-General submitted. I observe that it would be
unworkable if any changes by the High Court, the apical court
in Australia, to
the law applicable in NSW could not take effect in NSW until the Court of Appeal
reconsidered any cases decided
before the change. No such re-consideration
occurs automatically. Consequently, reliance on Pallas Newco is not the
complete answer to the Applicants’ case. It is necessary to consider the
parties’ arguments to determine if
Kirk does have any relevant
impact on the construction of s 101 as determined in Pallas Newco.
Operation of s 101
- As
the Attorney-General submitted, it is useful to consider the issues arising in
the context of s 20(1) and (2) of the LEC Act. This
section confers on the
Court the same civil jurisdiction as the Supreme Court to determine those
matters in relation to which it
has jurisdiction as specified under subs (1),
subject to s 71 which deals with s 20(1)(e) proceedings referred to in
subs (2). Section
71(1) states that proceedings in s 20(1)(e) may not be
commenced or entertained in the Supreme Court, subject only to s 58 which
concerns appeals to the Supreme Court (the Court of Appeal) in Class 4
proceedings, the judicial review and civil enforcement functions
of the Court.
Consequently, by virtue of s 20(2) of the LEC Act, the Court has the same
powers as the Supreme Court, a Ch III Court
under the Commonwealth
Constitution. Section 101 should be read in light of the overarching conferral
of that judicial review jurisdiction which is equivalent to and shared with
the
Supreme Court. This was a matter referred to in Brown at [39] as part of
Preston CJ’s finding in obiter that s 101 should be read so as to
preserve the Court’s supervisory jurisdiction shared with the Supreme
Court to review for jurisdictional
error.
- The
terms of any privative clause under consideration are significant for the
purposes of statutory construction, as identified in
Pallas Newco. In
Pallas Newco, whether a proposed development had a particular character
and was potentially prohibited development was found to be a jurisdictional
fact. The judicial review challenge was commenced within three months of the
council’s decision to approve the relevant development
so that no time bar
arose. The application of s 101 arose in the reasoning of Spigelman CJ as
part of his determination of whether the matter in issue was a jurisdictional
fact, concluding
at [69]-[84] that the degree of inconvenience that could arise
from finding that a fact is jurisdictional, and therefore a matter
which the
Court could determine, is ameliorated by the strict time limits in s 101.
Section 101, in contrast to the privative clause considered in Plaintiff
S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [2003] HCA 2
(Plaintiff S157/2002), provided for a public notice of a decision.
Spigelman CJ held at [83]-[84] that a jurisdictional error was not able to be
challenged
after three months from a valid notice, only errors which fell within
Hickman could be. Three other appeal judges agreed with his reasoning.
Handley JA considered it unnecessary to resolve the application of
s 101,
given that its operation did not squarely arise (at [147]).
- In
Kirk the High Court held that judicial review by Ch III courts in
the Commonwealth Constitution could not be ousted by the Australian Parliament.
The privative clause in Kirk was written in absolute terms to the effect
that no appeal against a decision of the Industrial Court was available.
Section 101 is a time limited provision not an absolute privative clause
like that in Kirk.
- In
Brown (2011) Preston CJ stated in relation to s 101 in obiter at
[37]-[39] that:
37 Second, even if proper public notice had been given, it
would not protect the development consent from jurisdictional error.
Before the
High Court’s decision in Kirk, a privative clause such as s 101 did
not protect the development consent from judicial review for certain types of
jurisdictional error. These were the three errors
identified in R v Hickman;
Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598, the decision not being a bona fide attempt
to exercise power, not relating to the subject matter of the legislation and not
being
reasonably capable of reference to the power given to the decision-maker,
as well as a breach of a requirement “of such significance
in the
legislative scheme that it constitutes a limitation or requirement that is
variously expressed in the authorities as ‘essential’,
‘indispensable’, ‘imperative’ or
‘inviolable’”: Lesnewski v Mosman Municipal Council
(2005) 138 LGERA 207 at [76].
38 In this case, the ground of challenge that the Council had
no power to make the November determination to grant consent to the
application,
having already made the September determination to refuse consent to the
application, is an error of the third kind
in Hickman. The ground of
challenge of failure to provide notice may fall into the inviolable restraint
category of error.
39 After the High Court's decision in Kirk, the
full range of jurisdictional error remains subject to judicial review,
notwithstanding a privative clause. A privative clause
in State legislation
cannot validly compromise the capacity of a State Supreme Court to exercise its
supervisory jurisdiction (which
is constitutionally entrenched) for review for
jurisdictional error. The supervisory jurisdiction of the State of New South
Wales’
Supreme Court is divided between the Supreme Court and the Land and
Environment Court, depending on the statute under which powers
and functions
have been exercised and are subject to review. A privative clause, such as s
101, may remain valid but it will be read down so as to preserve the supervisory
jurisdiction to review for jurisdictional error.
- In
terms of cases that have cited Brown, two are mine. In Community
Association I cited Rivers SOS Inc v Minister for Planning 178 LGERA
347; [2009] NSWLEC 213 at [90] where Preston CJ of LEC identified that
obiter dicta need not be followed by another judge at first instance including
not for reasons
of judicial comity. I also considered that the jurisdictional
error alleged came within the third Hickman principle to enable the
collateral challenge to proceed. In Gindurra one party was not legally
represented, there was no effective argument on the effect of s 101 and my
finding was also obiter as I found that the requisite notice had not been
published for the purposes of s 101, at [59]. My brief obiter finding cited
Brown and Community Association at [60]. In Brown the issue
does not appear to have been as fully argued as in this case, no reference was
made to Pallas Newco and the obiter findings were made by reference to
privative clauses in general. In IPM (2016) Pepper J after considering
Trives and applying principles of judicial comity held in obiter that
Brown was not plainly wrong at [62]-[71]. The necessary issue to resolve
which has arguably not been done to date is consideration of the
nature of the
time limited privative clause in s 101 in the statutory scheme of the EPA
Act in contrast to an absolute privative clause the subject of Kirk. I am
effectively considering the matter afresh given the far greater extent of
argument presented than in Community Association now with the benefit of
Trives inter alia. At issue is whether s 101 directly or as a matter
of practical effect unacceptably curtails or limits the right or ability
of
members of the public to challenge a development consent or complying
development in light of the Court’s functions under
s 20(1) and (2) of the
LEC Act whereby the Court does share equivalent jurisdiction with the Supreme
Court, noting that the Court
is not a Ch III Court under the Commonwealth
Constitution.
- In
Trives (2015) the Court of Appeal was considering whether the decision of
a certifier to issue a complying development certificate under
the EPA Act was a
jurisdictional fact, ultimately finding it was not. Basten JA stated in obiter
at [45]-[49] (footnotes omitted):
45 In the event that questions of inconvenience and uncertainty
were relevant, the applicant submitted that the comfort taken from
the
restrictive effect of s 101 in Pallas Newco could no longer be relied
upon as a result of the decision of the High Court in Kirk v Industrial Court
of New South Wales. That case held that a “privative provision in
State legislation, which purports to strip the Supreme Court of the State of
its
authority to confine inferior courts within the limits of their jurisdiction by
granting relief on the ground of jurisdictional
error, is beyond the powers of
the State legislature”. However, the court also stated what it was not
saying, namely “that
there can be no legislation affecting the
availability of judicial review in the State Supreme Courts”.
46 The expansion of Kirk beyond its sphere of operation
must be undertaken with caution. It was concerned with review by this court of a
decision of a superior
court of record, albeit one with limited jurisdiction,
namely the Industrial Court. It was not, in terms, concerned with decisions
of
non-judicial bodies. Further, it was concerned with a strong form of privative
clause, not a provision imposing a limitation period
on otherwise available
relief. Both these matters raise difficult questions which should not be
determined unless they squarely arise.
For example, s 101 of the EP&A Act
does not directly affect the jurisdiction of this court to review an
administrative decision.
It imposes a limit on review by the Land and
Environment Court, although the reason for that lies in other statutory
provisions which
confer exclusive jurisdiction on the Land and Environment Court
with respect to the supervisory jurisdiction involving a planning
or
environmental law, which includes the EP&A Act.
47 The argument assumed that the vesting of exclusive
jurisdiction in the Land and Environment Court is effective, but that the
imposition of a time limit on the exercise of that jurisdiction is not.
48 With respect to the second aspect, the effect of a
limitation period is simply not discussed in Kirk. It was, however,
discussed in a case dealing with the scope of possible regulation of the
jurisdiction of the High Court, pursuant
to s 73 of the Commonwealth
Constitution, of a limitation period on review of administrative decisions under
the Migration Act 1958 (Cth). That decision, Bodruddaza v Minister for
Immigration and Multicultural Affairs, held that a similar (12-week)
limitation period (imposed by s 486A of the Migration Act) was not
effective to diminish the power of the court to grant remedies under s 75(v) of
the Commonwealth Constitution. However, that reasoning with respect to the
constitutional limits of the Commonwealth Parliament does not necessarily lead
to the
same conclusion with respect to the limits imposed on a state
legislature. The question in that regard, as identified in Kirk, is
whether such a limitation would remove “a defining characteristic”
of the Supreme Court of a state, so as to contravene
the requirement of s 73 of
the Commonwealth Constitution that such a body continue to exist.
49. This is a large question. As Bodruddaza explained,
there can be significant practical difficulties with limitation periods
expressed in absolute terms which deny any discretion
to a court to extend time
in circumstances where the justice of the case so demands. On the other hand,
decisions under the EP&A
Act are quite different in their nature from
decisions under the Migration Act and operate in a different context,
involving quite different elements of public interest.
- In
Bodruddaza the High Court considered s 486A of the Migration Act
1958 (Cth) (MA Act) as then in force (it having been amended after
Plaintiff S157/2002). The section required applications for relief to the
High Court within 28 days of a decision under the MA Act with ability for the
High Court to extend that period for up to 56 days. The majority of the High
Court (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and
Crennan J) held at [53]-[57]
that a law regulating the commencement of proceedings under s 75(v) will be
valid if, whether directly
or as a matter of practical effect, it does not so
curtail or limit the right or ability of applicants to seek relief under
s 75(v)
as to be inconsistent with the place of that provision in the
constitutional structure, as explained in Plaintiff S157/2002. The
practical effect of the provision must be considered. As the section did not
allow for the range of vitiating circumstances
which may affect administrative
decision-making, it was invalid. The section did not allow for supervening
events which, through
no fault of an applicant, resulted in failure to act
within the stipulated time limit.
- In
terms of weight to be afforded to Trives, Ward CJ in Equity in Ying v
Song stated that obiter dicta of appellate courts should be departed from
only with caution. In Trives at [48]-[49], extracted above, the question
before me is expressed as large, with Bodrudazza referred to as one
example where practical difficulties with a time-limited provision under the MA
Act was invalid because no discretion
was allowed to the High Court to extend
time with the further observation that the same conclusion may not apply to
s 101 given its
different statutory context. As Basten JA identified
decisions under the EPA Act are different in nature and operate in a quite
different
context to the MA Act.
- Trives
is carefully considered obiter. Consequently Farah Constructions relied
on by the Waldings provides useful guidance. While Trives does not answer
the ultimate question of the scope of s 101, it not being necessary to do
so, it does indicate why careful analysis
is required to determine if
Kirk does in fact impact on the application of s 101.
- In
that regard it is useful to consider WaterNSW (2020) in which Robson J
considered the application of s 47 of the WM Act, a time-limited
provision set out in full above in [8]. Robson J considered the authorities in large part
referred to above in relation to s 101 and cited an extract from Aronson,
Groves
and Weeks. His Honour held at [219]-[221] as
follows:
219 At the time of the hearing, there had been little judicial
consideration of s 47 of the WM Act (save in Randren House Pty Ltd v Water
Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 at
[373]- [385]). However, some consideration was more recently given to s 47 by the
Court of Appeal in Randren House Pty Ltd v Water Administration Ministerial
Corporation [2020] NSWCA 14 at [3]- [9] (per Basten JA) and [94]-[103] (per
Leeming JA). Although not germane to the Court’s finding, Basten JA noted
in obiter dicta
(footnote omitted):
[9] One further matter should be noted
in relation to the operation of s 47 [of the WM Act]. In a footnote to written
submissions
filed in the Land and Environment Court, counsel for the respondents
stated that “there may be a question as to whether s 47
could validly oust
review for jurisdictional error”. That suggestion elided the effect of s
47 in limiting the jurisdiction
of the Land and Environment Court with its
entirely separate effect in limiting the jurisdiction of this Court. There can
be no tenable
suggestion that the jurisdiction conferred on a specialist
statutory court such as the Land and Environment Court is constitutionally
protected. No issue arose before the trial judge as to the exercise of this
Court’s supervisory jurisdiction.
220 The weight to be accorded to obiter dicta will vary
depending on the circumstances, however considered commentary of appellate
courts, although ultimately not binding on this Court, must nevertheless be
afforded appropriate weight and would only be departed
from with caution.
221 In light of the above, and again noting that the Court
received little assistance in relation to this aspect of the matter,
I consider
that s 47 of the WM Act operates as a bar to the defendants’ challenges to
the Plan. I find that the careful and
explicit wording of the provision makes it
clear that the time allowed for challenge is limited, and s 47(3) clearly takes
into account
and overrides the otherwise available methods of extending the
“judicial review period”. Despite this, there is a carve
out,
contained in s 47[(2)](b), for any “amendment” of a management plan
in the sense that the three month time limitation
applies to amendments (except
amendments to give effect to a decision of the Land and Environment Court
relating to the validity
of a plan). Further, given the likely effect on many
other parties (who are not involved in the present proceedings) the clear
intention
of the section, seen in the context of the important and somewhat
complex structure of the WM Act and the Plan is to provide for
certainty on the
part of those who have acted, and conducted their affairs, in reliance upon a
valid system of regulation –
particularly one that deals with important
matters such as water sharing as well as the detailed matters otherwise required
to be
taken into account in making a water sharing plan as provided for in ss 20
and 21 of the WM Act.
- Section
101 of the EPA Act and s 47 of the WM Act are in different terms and
operate in different statutory contexts. As identified
by Robson J immediately
above in [221] of WaterNSW, the wording of s 47 is “careful
and explicit” and I would add somewhat emphatic in that s 47(1)
states that the validity
of a management plan cannot be “challenged,
reviewed, quashed or called into question” other than before the Court
within
the judicial review period. That is defined in subs 2(a) as three months
from the date of publication of the plan on the NSW legislation
website.
Subsection (3) states that this period cannot be extended by any court despite
any other Act or law, presumably ousting
the operation of the Uniform Civil
Procedure Rules 2005 (UCPR) r 59.10. Similar provisions limiting challenges to
plan-making functions by a designated person are specified in subs (4).
Limits
are placed on challenges on the grounds of a breach of procedural fairness in
subss (5), (6) and (7). Section 47 is more extensive than s 101.
- The
purpose of the sections is broadly the same, limiting judicial review of an
administrative decision which confers significant
rights to take water across a
catchment (WM Act) and to undertake development (the EPA Act) three months after
a complying public
notice has been published. The importance of certainty of
decision-making is referred to in the second half of [221] in WaterNSW in
relation to the effect of a late challenge to a management plan on numerous
other individuals and entities to whom a plan applies
and who act in reliance
upon it who are not parties to proceedings. Similar considerations arise in
relation to s 101, as was emphasised
by the Respondents’ submissions
and has been identified in numerous cases considered in the parties’
arguments, including
Woolworths v Bathurst, Pallas Newco and
Hoxton Park (LEC) inter alia. The facts of this case demonstrate the
difficulty that can arise for the holder of a development consent if a challenge
is allowed well after the publication of a public notice under s 101 has
occurred and reliance is placed on a development consent.
Certainty of outcome
which results in the conferral of important legal rights and consequent
financial investment inter alia is an
important consideration in the operation
of the statutory scheme in the EPA Act.
- An
important matter to note is that both s 101 of the EPA Act and s 47 of
the WM Act provide for public notification of a specific
statutory decision
which confers important rights on members of the community, a matter emphasised
by the Attorney-General as an
important distinction from an absolute privative
clause such as that which arose in Kirk. Three months from publication of
a complying notice of a development consent has been identified in Woolworths
v Bathurst, Pallas Newco and Hoxton Park (LEC) inter
alia as a sufficient period to enable certainty for those seeking to rely on a
development consent balanced with an opportunity
being provided to anyone to
challenge such a decision during that period. The importance of certainty of a
statutory scheme conferring
significant rights on members of the public was a
key element in the consideration in Pallas Newco.
- The
requirement for a complying notice under s 101 in the EPA Act is also important.
The requirements for such a notice have been
strictly construed. The reason why
the findings in Brown, IPM and Gindurra are all obiter is
because the public notices purporting to be for the purposes of s 101 in
those cases did not satisfy the EPA Act
and EPA Regulation requirements.
Similarly, in Hoxton Park, the Court of Appeal held that the notice
purportedly given in accordance with reg 124 of the EPA Regulation as then
in force did
not comply, and time to commence judicial review proceedings did
not therefore commence to run for the purposes of s 101.
- The
Applicants correctly identify that no section of the WM Act is identified as an
environmental law in s 20(2) of the LEC Act so
that, as the Applicants
submitted, the divided jurisdiction of the Court shared with the Supreme Court
as provided for in s 20(1),
(2) and s 71 does not apply to the WM Act.
While that is the case, WaterNSW considered as a matter of statutory
construction a broadly similar statutory scheme as already discussed above.
Essentially the same
arguments as I have heard in relation to s 101 were
before Robson J and his reasoning is pertinent. Nor should WaterNSW be
distinguished
solely on the basis it concerned criminal proceedings in which a
collateral challenge to an administrative instrument was attempted.
The
underlying statutory construction issues remain similar.
- The
significant matter which did not need to be considered in Brown and
IPM, and was not by me in Community Association and
Gindurra is the difference between the time-limited provision in
s 101, the importance and adequacy of the three month public notification
period and the different nature of the absolute privative clause in Kirk.
The matter is very finely balanced but I ultimately consider that Kirk
does not require that long-established caselaw concerning the application of s
101 ought to be put to one side.
- Although
not central to my reasoning, I note that reference was made to s 31 of the
Interpretation Act, which requires that an act should be construed as
operating to the full extent of the legislative powers of Parliament, but not
so
as to exceed that power. Nothing in Kirk suggests that s 101 does not
accord with the powers of the NSW Parliament.
- I
consider the application of Kirk to s 101 in the statutory scheme in the
EPA Act does not require a change from the approach in Pallas Newco,
which affirmed the importance of the three month period in limiting the period
of uncertainty for holders of development consents.
The continued application of
the Hickman principles as recognised in Pallas Newco must
therefore also be considered.
- Ultimately
for the reasons already expressed, I consider the Applicants’ judicial
review challenge is time-barred in relation
to Ground 1 save for the application
of Hickman, which I discuss next.
Do Hickman principles
apply to Ground 1 error?
- The
Hickman principles were recognised in Pallas Newco as continuing
to apply to permit judicial review proceedings in limited circumstances.
Aronson, Groves and Weeks identify that limitation
periods raise both
interpretive and constitutional issues. In relation to time limitations in
privative clauses such as s 101, at
[18.210] they state:
Provisions in New South Wales planning legislation allow appeals to the Land and
Environment Court against the validity of certain
instruments and decisions, but
only if they are commenced within three months of notification. The deadlines
are not expressed to
apply to the Supreme Court, and their validity remains
unresolved. [With reference to Trives at 280-281 and IPM at
[62]-[71].] Prior to Kirk and S157, the Court of Appeal treated
one of the deadlines as being almost wholly effective, subject only to
Hickman’s first three provisos, plus its “second step”,
namely, that there be no breach of any “imperative duties
or inviolable
limitations or restraints”. [With reference to Vanmeld Pty Ltd v
Fairfield City Council (1999) 46 NSWLR 78; [1999] NSWCA 6, Pallas
Newco and Lesnewski.] The requirements of procedural fairness
represented inviolable restraints. If, as we argue at [18.160]
Hickman’s formulaic components have not survived S157 and
Kirk, that reading of the limitation provisions might need to be
revisited.
- Aronson,
Groves and Weeks extracted above observes that Pallas Newco recognised
that s 101 was wholly effective subject only to the Hickman
principles including that there can be no breach of any inviolable limitations
or duties continued to operate. If their argument
that Hickman does not
survive Plaintiff S157/2002 and Kirk is correct they
observe that the reading of s 101 may need to be revisited. This issue I
consider is also at large in relation to
s 101.
- Similar
to Pallas Newco, in Anambah Homes (2005) the Court of Appeal
upheld the application of the Hickman principles in holding that a
challenge to a condition in a grant of development consent was available due to
the nature of the error
despite a notice being issued under s 101 and the
three month time limit having elapsed before proceedings were commenced.
- Given
these Court of Appeal cases it is difficult to conclude that Hickman is
no longer relevant where a time limited privative clause is otherwise effective.
Aronson, Groves and Weeks in [18.160] states
that the High Court has not issued
a formal death certificate for Hickman and goes on to argue that
effectively it has. In a footnote Aronson, Groves and Weeks cites Director
General, Department of Health (NSW) v Industrial Relations Commissioner
(NSW) [2010] NSWCA 47; (2010) 77 NSWLR 159 at 163 where the Court of Appeal accepted that in
light of Kirk the Hickman principles no longer applied in relation
to s 179 of the Industrial Relations Act 1996, considered by the High
Court in Kirk (Spigelman CJ, Tobias JA and Handley AJA agreeing) at [15].
That finding, given the statutory context is unsurprising. Carnley [2010]
referred to by the Attorney-General is also cited in the same footnote. That
case concerned s 65 of the Consumer, Trader and Tenancy Tribunal Act
2001 (NSW) (CTTT Act, now repealed) which provided for limited review of
decisions of the Consumer, Trader and Tenancy Tribunal. Given
that Kirk
dealt expressly with the importance of not limiting the Supreme Court’s
supervisory powers over inferior tribunals the observation
at [15] that
Kirk means that Hickman has little work to do at state level
arises from that particular statutory context. As Pallas Newco continues
to apply, the Hickman principles must be considered.
- I
now consider whether Ground 1 comes within the Hickman
principles. In Hickman Dixon J at 615 stated that an
administrative decision cannot be challenged unless it is not a bona fide
attempt to exercise power,
does not relate to the subject matter of the relevant
legislation, and is not reasonably capable of reference to the power given
to
the body. The Hickman principles have been extended to include two other
exceptions, whereby s 101 does not protect:
(a) a breach of a
requirement “of such significance in the legislative scheme that it
constitutes a limitation or requirement
that is variously expressed in the
authorities as “essential", 'indispensable', 'imperative' or
'inviolable'” (Lesnewski v Mosman Municipal Council (2005) 138
LGERA 207; [2005] NSWCA 99 (Lesnewski) at [76]; Anambah Homes at
[111]);
(b) and certain denials of procedural fairness per Vanmeld Pty Ltd v
Fairfield City Council (1999) 46 NSWLR 78; [1999] NSWCA 6 at [158]( not
applicable in the present case).
Applicants’ submissions
- The
failure to give owner’s consent is a fundamental requirement of such
significance in the EPA Act scheme that it constitutes
a limit on a power that
is “essential”. It is not an error protected by s 101, in
accordance with the decision in Plaintiff S157/2002 as applied in
Lesnewski (second limb).
- Woolworths
v Bathurst ought to be distinguished, given Al Maha at [95] which
identified that owner’s consent is an essential prerequisite to a consent
authority’s determination of
the application. This clearly shows that the
absence of owner’s consent is jurisdictional and comes within the
Hickman principles.
- The
facts in Woolworths v Bathurst are important to consider as they informed
the conclusion of Cripps CJ’s decision that s 104A of the EPA Act
precluded a challenge
to the validity of the development consent where the
challenge was based upon the circumstances in the judgment. The DA included
a
document which stated that the owners of the land to which the application
related consented to the making of the application,
the council specifically
asked the applicant for development to furnish proof of owner’s consent
and its planner advised that
all owners had indicated their consent in the
absence of actual letters of consent inter alia.
- In
Brown, Preston CJ identified at [38] that the ground of review that the
relevant council lacked power to approve a DA was an error of the
third kind in
Hickman. He also observed that a further ground of challenge of failure
to provide notice may fall into the inviolable restraint category of
error in
Hickman.
Waldings’ submissions
- The
Ground 1 error does not come within the Hickman principles, namely the
three exceptions identified by Dixon J, or as a breach of a requirement that is
“essential”, “indispensable”
or
“imperative”. Pallas Newco reaffirms that the Hickman
principles apply to the construction of s 101.
- Applying
the Hickman principles, it could not be said that the decision was not a
bona fide attempt to exercise power. It clearly was. There is no suggestion
to
the contrary. Nor could it be said that the decision did not relate to the
subject matter of the legislation. It clearly did.
It was a decision under the
EPA Act to grant development consent to a DA made to it. Nor could it be
said that the decision was not reasonably capable of reference to
the power
given to the decision-maker. The Council was clearly exercising its power to
determine a DA made to it. The requirement
of owner's consent is a procedural
requirement.
Consideration
- I
agree with the Applicants that Woolworths v Bathurst considered different
circumstances and does not answer the legal issues raised in the circumstances
of this case. As Hickman is still relevant, Ground 1 comes within it for
the reasons identified by the Applicants in [129]-[130] above, providing a separate basis for consideration
of Ground 1.
- Although
strictly unnecessary to do so given my finding above, Grounds 2 and 4 remain to
be considered. In order to consider all the
parties’ arguments I will
consider Grounds 2 and 4 next.
Ground 2 – Failure to
Consider
- The
summons states as follows in relation to Ground 2:
Ground 2 - Failure to consider mandatory relevant considerations - Section
79C
29 The Third Respondent does not have the power to grant the
Development Consent for the Proposed Development unless it is satisfied
of the
matters contained in sections 79C(1)(b), 79C(1)(c) and 79C(1)(e) of the EP&A
Act.
30. In respect of that part of the Proposed Development to be
located on the Dedicated Land, there is no evidence on which the
Third
Respondent could have based its assessment of the mandatory relevant
considerations contained in sections 79C(1)(b), 79C(1)(c)
and 79C(1)(e) of the
EP&A Act, including in relation to the concrete block garage and roof
terrace.
31. The Third Respondent erred with respect to its jurisdiction
by purporting to be satisfied of the matters in sections 79C(1)(b),
79C(1)(c)
and 79C(1)(e) of the EP&A Act in relation to that part of the Development to
be located on the Dedicated Land in the
absence of any evidence which could have
formed the basis for that satisfaction.
...
- The
Council’s Delegated Authority Report dated 9 May 2017 was in evidence.
Applicants’ submissions
- Under
s 79C the relevant considerations a decision-maker must take into account
are those either expressed in a statute or those determined
by implication from
the subject matter, scope and purpose of the statute (Minister for Aboriginal
Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
(Peko-Wallsend) at 39-40 and 55).
- The
expressed relevant considerations for the assessment of a DA are expressed in
s 79C of the EPA Act (now s 4.15) and include, (b) the likely
impacts of that development including environmental impacts on both the natural
and built
environments and social and economic impacts in the locality;
(c) the suitability of the site for the development; and (e) the
public
interest. The Council could not have appropriately considered matters in
(b), (c) and (e) (particularly, the “suitability of
the site for the
development”) if it was not adequately seized of what the site was and who
owned it.
- Consideration
requires an active intellectual engagement with the facts and circumstances
forming an essential part of the matter
that must be considered. The quality of
engagement necessary to satisfy the legal standard of having considered a matter
was explained
by Kiefel J in Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 as
follows (at 495, 497; see also Black CJ at 462, Burchett J at
476–477).
- Further,
commonly implied into statutes is an obligation on a decision-maker to consider
the most accurate information available to
the decision-maker. This principle
was stated by Mason J in Peko-Wallsend:
[T]here may be found in the subject matter, scope and purpose of nearly every
statute conferring power to make an administrative
decision an implication that
the decision is to be made on the basis of the most current material available
to the decision-maker,
[or on] the most recent and accurate information that the
[decision-maker] has at hand.
- The
obligation can require the decision-maker to ensure the accuracy of the
information on which a decision is to be based, and the
failure to do so may
constitute an actual or a constructive failure to consider a relevant matter.
One expression of that principle
is that a decision is invalid if the
decision-maker has “a fundamental misconception of what is admitted to be
a consideration
of significance” (Laremont v Minister for
Immigration & Ethnic Affairs (1985) 9 ALN N13; [1985] FCA 602
(Laremont), quoted in GTE (Aust) Pty Ltd v Brown (1986) 14
FCR 309 (GTE), Burchett J at 337 and see also Sezdirmezoglu v Acting
Minister for Immigration and Ethnic Affairs [1983] FCA 267; (1983) 51 ALR 561 (FCA)
(Sezdirmezoglu); Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183; Black CJ at
197-199).
- In
dealing expressly with relevant considerations imposed by s 79C of the EPA
Act, Preston CJ has said that a purported exercise of
the statutory power has no
validity where a condition for the exercise of the power has not been fulfilled
(Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167
LGERA 52; [2009] NSWLEC 69 (Conservation of North Ocean Shores) at [19]).
In Conservation of North Ocean Shores Preston CJ was considering a
provision of an environmental planning instrument that required the consent
authority to be satisfied
that the development was consistent with zone
objectives before granting consent:
- There
needs to be evidence of this consideration. In Hortis v Manly Council
(1999) 104 LGERA 43; [1999] NSWLEC 151 (Hortis) Sheahan J said from [171]
with emphasis added:
... Following Franklins and Currey, the court must draw from the
evidence in this case the inference that the Council failed to address its mind
to cl 10 and cl 17
of the LEP, and in doing so committed an error of law. The
consent granted is, therefore, invalid, in accordance with s 91(2) of
the
EP&A Act.
- There
was clearly no “actual knowledge” in this case (using the language
of Stein JA in Franklins Ltd v Penrith City Council [1999] NSWCA 134
cited at [169] in Hortis) that the application related to the Council
land.
- In
Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11;
[2006] NSWLEC 365 (Arrawarra Beach), Talbot J said at [42] with emphasis
added:
It is not in dispute that the Council was required to consider the objectives of
the Marine Parks Act under s 79C of the EP&A Act and cl 22(4) of LEP
2000. Nor is it in dispute that the Council did not consider the objectives as
required. The Council officer’s report contains no reference to the
Marine Park, so the inference can be drawn that the issue was not
considered by
Council when determining to grant consent to the development application. In
Franklins Limited v Penrith City Council [1999] NSWCA 134 Stein JA
expressed the following opinion regarding the application of the presumption of
regularity where a clause of an environmental
planning instrument prohibited
development unless the consent authority formed an opinion of satisfaction about
a matter:
What is here involved is a question of power. If the
pre-condition in cl 32(2) was not satisfied, then Council had no power to grant
consent. The existence of the mental state of satisfaction is an
‘essential condition’ or preliminary to the exercise
of the power,
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 and
Timbarra Protection Coalition Inc. v Ross Mining NL [1999] NSWCA 8 per
Spigelman CJ at paras 42 and 94. Accordingly, the Land and Environment Court and
this court on appeal can review whether the
Council held the requisite
satisfaction. The presumption of regularity has no part to play in this
consideration.
- This
case is as per both the Hortis cases, Franklins and Currey v
Sutherland Shire Council (1998) 100 LGERA 365. There is no evidence of any
“actual knowledge” that the site included the Council’s own
land. As in Arrawarra Beach, the council officer’s report contains
no reference to the land being owned by the Council, so the inference must be
drawn
that there could not have been the requisite state of satisfaction
reached. That remains uncontradicted (indeed, accepted) by the
Waldings.
- For
those reasons, there is clearly a failure to consider the mandatory matters in
s 79C(1)(b), (c) and (e) where the Council is not
properly seized of what
“the site” the subject of the DA actually is. Such a failure is
jurisdictional (per Preston CJ
in Conservation of North Ocean Shores),
and subject to consideration of discretionary matters, enables the Court to
declare the consent invalid.
Waldings’ submissions
- The
Applicants contend that there was a failure to consider the matters in
s 79C(1) (b), (c) and (d) of the EPA Act. The Delegated Authority
Report expressly refers to and considers the matters in s 79C(1)(b), (c)
and (d). This included a thorough
consideration of the impact of the proposed
garage, albeit on the assumption that it was to be constructed on the land of
the Waldings.
Having considered those matters, the Delegated Authority Report
recommended that the DA was satisfactory and recommended approval.
The
recommendation was adopted by the decision-maker.
- The
ground of failure to take into account a relevant consideration can only be made
out if a decision-maker fails to take into account
a consideration which he is
bound to take into account in making that decision: Peko-Wallsend per
Mason J at 39. The identification of relevant and irrelevant considerations
is to be drawn from the statute empowering the decision-maker
to act, rather
than from the particular facts of the case that the decision-maker is called on
to consider: Abebe v The Commonwealth of Australia (1999) 197 CLR 510;
[1999] HCA 14 (Abebe) at [195] per Gummow and Hayne JJ; Minister
for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001]
HCA 30 (Yusuf) at [73] per McHugh J. The contention here is that
there was a failure to take into consideration the fact that part of the
development
was on land owned by the Council. This is not, of course, a
mandatory consideration set out in either s 79C(1)(b), (c) or (e) of
the
EPA Act. Thus, the decision-maker was not bound to take it into
consideration, although it may well be a relevant matter which the
decision-maker
was entitled to consider.
- The
Applicants’ contention is based on the decision-maker having made an error
of fact in assuming that the development was
to be carried out on land owned by
the Applicants for consent and was unaware that part of the land on which the
development was
to be carried out was owned by the Council. It is well
established that it is erroneous to equate irrelevancy to factual incorrectness
or relevancy with factual correctness: Akpan v Minister for Immigration and
Ethnic Affairs [1982] FCA 46; (1982) 58 FLR 47 (Akpan) at 50 (Sheppard J);
Brunetto v Collector of Customs [1984] FCA 383; (1984) 4 FCR 92 at 97 (Toohey J);
Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100 at
[72]-75]; Broad Henry v Director-General of the Department of Environment and
Conservation (2007) 159 LGERA 172; [2007] NSWLEC 722 (Broad Henry).
There is also no error in making a wrong finding of fact: Waterford v The
Commonwealth (1987) 163 CLR 54; [1987] HCA 25 (Waterford) at
77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990]
HCA 33 (ABC v Bond) at 356; Bruce v Cole (1998) 45 NSWLR 163 at
187; Minister for Immigration and Multicultural Affairs v Eshetu (1999)
197 CLR 611; [1999] HCA 21 (Eshetu) at (138); Corporation of the City
of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000]
HCA 5 (Enfield) at [44].. Accordingly, Ground 2 has not been made
out.
Ground 2 not established
- I
have already found that the existence of owner’s consent is a
jurisdictional requirement for the grant of development consent.
That finding
arises from the statutory scheme in the EPA Act and EPA Regulation. The
circumstances of this case where it is accepted
that the Council did not know
that it was considering a DA in relation to land it owned do not sit comfortably
with the authorities
such as Hortis, Currey, Franklins,
Conservation of North Ocean Shores and Arrawarra Beach relied on
by the Applicants. The Applicant is not relying on an express or implied
pre-condition to the exercise of power to grant
development consent in terms of
any of the broad matters identified in s 79C(1) /s 4.15. There
was no failure to consider in the
sense of ignoring or not considering a
required matter in that part of the EPA Act, as the Waldings also submitted. The
Council did
assess the DA over the land the subject of the DA for the purposes
of s 79C(1) / s 4.15, as the Waldings submitted in [150] above. There was no
failure to consider a mandatory relevant consideration for the purposes of
s 79C / s 4.15, as the Waldings submitted
in [151] above, relying on
Abebe and Yusuf.
- Submissions
about the desirability of having the most up-to-date information can all be
accepted but once again are not particularly
apt for the circumstances. Neither
the Waldings nor the Council knew of the error underpinning the DA plans. The
Applicants allege
there was a failure to ensure the accuracy of the information
on which the decision is to be based, citing Laremont quoted in
GTE, Sezdirmezoglu and Tickner v Bropho. None of those
cases are addressing circumstances similar to this matter including this
statutory regime. In GTE the issue was a Commonwealth Minister’s
decision about the pricing of light globes due to insufficient accurate
information
on a key matter relevant to a decision under the Customs Tariff
(Anti-Dumping) Act 1975 (Cth). At issue in Sezdirmezoglu was the
adequacy of briefing the relevant Commonwealth Minister in relation to a
decision to issue a deportation order under the
MA Act. Tickner v Bropho
was concerned with ministerial decision-making by the relevant Commonwealth
Minister of whether to issue an emergency protection
order under the
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
and his failure to obtain up-to-date information on a relevant matter he was
aware of. The Council’s wrong assumption
of fact about who owned the land
in issue is not an error of the same character.
- The
Waldings’ submissions accurately characterise what is obvious – the
Council was mistaken about a matter of fact. That
it was an important matter
because of the statutory scheme means that I have already held that mistake gave
rise to a jurisdictional
error. I otherwise agree with and accept the
Waldings’ submissions as set out above in [152] and the authorities
cited therein of Akpan inter alia cited in Broad Henry at [124] to
the effect that proper consideration of a relevant matter does not demand
factual correctness. And most relevantly, no
legal error necessarily arises from
a wrong finding of fact: Waterford at 77 cited in ABC v Bond at
356, Bruce v Cole at 187, Eshetu at 654, Enfield at 154,
all cited in Moorebank Recyclers Pty Limited v Liverpool City Council at
[75]. More accurately, the Council proceeded on a wrong assumption of fact
concerning who owned the land the subject of the Waldings’
DA but the
authorities nevertheless address that circumstance. Ground 2 is not established.
Ground 4 – Unreasonableness
- The
summons stated as follows:
Ground 4 - Unreasonableness
36. In determining to grant the Development Consent to carry
out part of the Proposed Development including the concrete block
garage and
roof terrace on the Dedicated Land, the Third Respondent made a decision that
was illogical and/or so unreasonable that
no reasonable decision-maker would
make it.
Particulars
i. At the time of granting the
Development Consent, the Third Respondent was not aware that part of the
Proposed Development comprising
a concrete block garage and roof terrace was to
be carried out on a public road reserve.
ii. At the time of granting the Development Consent, no
approval was granted to the First and Second Respondents under section 138 of
the Roads Act.
iii. At the time of granting the Development Consent, the First
and Second Respondents did not have any land tenure in relation
to the Dedicated
Land including any lease or license of that part of the road reserve on which
the concrete block garage and roof
terrace was to be carried out.
iv. The First and Second Applicants refer to and repeats
paragraphs 29 to 31 above.
Applicants’ submissions
- The
fourth ground of challenge is unreasonableness. At the time of granting the
consent, the Council was not aware that part of the
proposal (the concrete block
garage and roof terrace) was to be carried out on a public road reserve. Put
simply, it was unreasonable
to grant consent to development on land when the
consent authority was not aware of what the land actually comprises,
particularly,
that it comprised public land it owned and controlled.
- Accordingly,
no other decision-maker acting rationally would reasonably have made the same
decision, by reference to the principle
in Associated Provincial Picture
Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 (Wednesbury), to
the effect that a court will hold invalid a purported exercise of discretionary
power statutorily conferred upon a repository
of that power that is so
unreasonable that no reasonable repository of that power could have made the
impugned decision pursuant
to the exercise of that power (at 234).
- The
principle has long-standing application in Australia: Eshetu at [124];
Abebe at [116]); Re Refugee Review Tribunal; Ex parte Aala (2000)
204 CLR 82; [2000] HCA 57 at [40]; Minister for Immigration and Citizenship v
SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [123] and Minister for
Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
(Li). As the Court in Li noted, a standard of reasonableness in
the exercise of any discretionary power conferred by the legislature was
demanded well before
the decision in Wednesbury, at [64]-[66].
- It
is accepted that in Li, Gageler J observed that “judicial
determination of Wednesbury unreasonableness in Australia has in practice
been rare”, at [113] and that it must be borne in mind not to
trespass into the merits of decision-making. However, as Gageler J opined in
Li at [108]:
[j]udicial determination of Wednesbury unreasonableness is constrained by
two principal considerations. One is the stringency of the test that a purported
exercise of power
is so unreasonable that no reasonable repository of the power
could have so exercised the power. The other is the practical difficulty
of a
court being satisfied that the test is met where the repository is an
administrator and the exercise of the power is legitimately
informed by
considerations of policy.
- In
Wednesbury itself, Lord Greene MR at 229 referred to the relevant
unreasonableness as “something so absurd that no sensible person could
ever dream that it lay within the power of the authority”. In Bromley
London Borough Council v Greater London Council [1983] 1 AC 768 at 821, Lord
Diplock defined Wednesbury unreasonable decisions as those which
“looked at objectively, are so devoid of any plausible justification that
no reasonable
body of persons could have reached them”. In Puhlhofer v
Hillingdon LBC [1986] UKHL 1; [1986] AC 484 (Puhlhofer) at 518, Lord Brightman said
that the unreasonableness must be “verging on an absurdity” cited by
Gleeson CJ and McHugh
J in Eshetu at [41].
- Here
it is absurd (or manifestly illogical or unreasonable) to postulate that a
consent authority can exercise a power, acting rationally,
without knowing or
considering that it was approving development over its own public land, nor
considering the consequences of that
decision.
- It
is equally absurd (or manifestly illogical or unreasonable) to view the fact of
landowner’s “consent” (assuming
Claude Neon assists the
Waldings which imports with it an element of knowledge about what is to occur
and control by that person or entity to
then allow or authorise development in
the absence of an informed process, and is given unconsciously or unknowingly.
- Again,
there is no doubt that such an error is fundamental to the administrative
decision to grant consent and can form the basis
of an order for the Court to
declare the consent invalid (Manning v Bathurst Regional Council (No 2)
(2013) 199 LGERA 147; [2013] NSWLEC 186).
Waldings’
submissions
- The
Applicants contend that because the decision-maker was unaware that part of the
land on which the development was to be carried
out was not owned by the
Waldings but was owned by the Council, the decision of the Council to grant
consent was manifestly unreasonable.
This is to erroneously equate an error of
fact with manifest unreasonableness: Peko-Wallsend at [39], Abebe
at [195], Yusuf at [73].
- Having
assessed the DA on the assumption that the development was to be on land owned
by the Waldings, the decision-maker reached
the conclusion that development
consent should be granted and determined the DA by granting consent, subject to
conditions. There
is nothing irrational or unreasonable about this. Nor was it
irrational in the circumstances for the decision-maker to assess the
DA on the
assumption that the Waldings owned the whole of the land the subject of the DA.
This ground of challenge must also fail.
Ground 4 not
established
- All
of the Applicants’ submissions elucidating the principle of
unreasonableness in judicial review applications at [158]-[161] do not address the
circumstances of this matter. I agree with the Waldings’ submissions as
these reflect accurately what has
occurred, which is a mistake of fact as
observed in Ground 2. The arguments based on irrationality just do not
“fit”
what occurred. To say that a rational council, thinking that
it was being asked to consider land it did not own, would not rationally
have
made a decision approving development does not reflect the circumstances that
occurred and is not an apt inquiry. I found in
Ground 1 that a council could not
unknowingly give land owned consent, so that Claude Neon did not assist
the Waldings. The Council was not aware that it was being asked to approve
development on land it owned. The authorities
cited by the Waldings in [165] above apply, namely a
mistake of fact is not to be equated with unreasonableness. Ground 4 is not
established.
Uniform Civil Procedure Rules 2005 r 59.10 –
extension of time to commence proceedings / exercise of discretion to grant
relief
- My
finding upholding of Ground 1 and the application of the Hickman
principles, means that I should consider whether leave under UCPR r 59.10 should
be granted. Under UCPR r 59.10 judicial review proceedings
must be
commenced within three months of the date of the decision, subject to the
discretion of the Court to extend time as provided
in UCPR r 59.10(2).
- It
is necessary to consider the exercise of discretion in relation to:
(i) whether the Court should exercise its discretion to extend
time
pursuant to UCPR r 59.10; and (ii) whether the Court should exercise
its discretion to order, as sought by the Applicants in
their Amended Summons,
the demolition of all buildings, structures or works purportedly erected or
carried out in reliance on the
development consent on the Dedicated Land
including but not limited to the concrete block garage and roof terrace. The
voluminous
evidence relied on by the parties in relation to discretion is set
out below. As it is difficult to separate out the factors relevant
to UCPR r
59.10 from the overall exercise of discretion in granting relief, I will set out
all the evidence in one location.
- UCPR
r 59.10 provides:
59.10 Time for commencing proceedings
(1) Proceedings for judicial review of a decision must be
commenced within 3 months of the date of the decision.
(2) The court may, at any time, extend the time for commencing
proceedings fixed by subrule (1).
(3) In considering whether to extend time under subrule (2),
the court should take account of such factors as are relevant in the
circumstances of the particular case, including the
following—
(a) any particular interest of the
plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage
of time, if the relief were to be granted, including but not limited
to
prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising
reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
(4) This rule does not apply to proceedings in which there is a
statutory limitation period for commencing the proceedings.
(5) This rule does not apply to any proceedings in which the
setting aside of a decision is not required.
Lay
evidence
- Much
of the evidence that follows concerns the factual background outlined in the
SOAF extracted in [9]
above.
Affidavit of Lin Lu
- The
Applicants read the affidavit of the First Applicant Ms Lin Lu affirmed 19 June
2019. Ms Lu deposed that she was authorised to
make the affidavit on behalf of
the Second Applicant, Mr Woo, her husband. Ms Lu and Mr Woo are the registered
proprietors of the
Lu Property.
- Ms
Lu deposed that prior to purchasing the Lu Property in November 2009, she and Mr
Woo had a conversation with real estate agent
Mario Esposito of Klaric Partners
about the grassed area at the front of the Lu Property facing Clontarf Street in
which Mario said
words to the effect “this land is yours [in front of the
house], but you can’t build anything on it”. At the time
of that
conversation Ms Lu understood that there was some restriction on the use of the
land identified by the real estate agent
in front of the Lu Property and that
she and her husband would not be able to carry out any development on that part
of the land.
- After
completion of the purchase of the Lu Property Ms Lu located a folder left at the
Lu Property by the vendor. The folder contained
an application for a building
certificate together with a survey plan dated 19 July 2007. Based on her review
of the survey plan,
Ms Lu understood that an area of 46.5 square metres was
excised from the Lu Property for road widening. The Lu Property and the Walding
Property shared a side boundary of 36.576 metres which extended to the location
approximately in line with her letterbox and the
survey plan contained a
reference “G620017” which she believed was related to the proposed
road widening.
- In
late 2016 Ms Lu met the Waldings outside the Lu Property. They had a
conversation in which Mr Walding said words to the effect
“we plan to
carry out some renovations to our property. We want to put in a garage similar
to yours. It would go there [pointing
to an area above the rock embarkment] and
end here [pointing to the area near my letter box]”. Mrs Walding also said
words
to the effect “we might also construct a deck to let our dog
out”. Ms Lu understood the proposed garage and deck would
be roughly in
line with the verandah on the Lu Property. The Waldings lodged the DA with the
Council on or about 20 December 2016.
On or about 21 December 2016 the
Applicants received a letter from the Council notifying them that the DA had
been lodged and that
they make submissions.
- Upon
reviewing the Notification Plan for the DA, Ms Lu believed the boundary of the
proposed garage would be in line with her verandah
and letterbox. On 18 January
2017 the Applicants made a written objection. The Applicants’ primary
concerns were (i) privacy,
particularly in relation to their downstairs
living room and outdoor terrace; and (ii) overshadowing and impacts on safe
access to
their front door.
- The
DA was determined on or about 9 May 2017. Construction commenced on or about 7
September 2018. In late September 2018 Ms Lu observed
that concrete had been
poured for the garage beyond the area of her letterbox. This is when Ms Lu first
became aware that the Waldings
may be carrying out development beyond their
front boundary. Ms Lu asked a conveyancer to conduct relevant searches regarding
the
legal boundaries of the Walding Property. The conveyancer provided Ms Lu
with copies of a title search for the Lu Property (Lot 179
DP 11162), a copy of
Lot 179 DP 11162, Dealing G620017 (referred to in the title search for the Lu
Property), a title search for
the Walding Property (Lot 1 DP 119074), and a copy
of Lot 1 DP 119074. The conveyancer’s invoice is dated 9 October
2018.
- On
9 October 2018, Ms Lu sent an email to the Council regarding her suspicion that
the Waldings had carried out development beyond
their legal boundary including
construction of a garage which appeared to extend 4.573 metres beyond the front
boundary of the Walding
Property. Between 9 October 2018 and mid-November Ms Lu
exchanged several communications with various Council employees in order
to
escalate her complaint about the Walding Property.
- Prior
to 30 November 2018 Ms Lu had a conversation to the following effect with Mrs
Walding:
Lin: “Are you aware that your garage is over your boundary?”
Alexandra: “Yes, I am aware of your complaint to Council. This was from a
historical problem with the register. When we bought
our property, we believed
that our boundary was up to this tree. We had had a discussion with Council. A
Councillor told me that
Council would give back the land to each of the 4
houses. The garage is already built and it won’t be demolished.”
Lin: “We will take legal action then.”
Alexandra: “You can pursue your legal rights if you want. If the Council
asks us to demolish the garage, we will sue the Council.”
- Following
this conversation Ms Lu began to prepare an application for the Court and
decided to seek advice from a specialist environment
and planning lawyer. On or
about 5 December 2018 Ms Lu engaged Bick & Steele to provide her with legal
advice.
- On
7 December 2018 Ms Lu received a letter from David Kerr, General Manager
Planning Place & Community at the Council. This letter
indicated that the
development consent was valid until such time as made invalid by a court.
- On
10 December 2018 Ms Lu instructed her solicitor Mr Bick to send a letter to the
Council indicating, among other things, that Council
had made a jurisdictional
error in granting development consent in the absence of written owner’s
consent from all owners of
the land the subject of the DA and of her intention
to commence proceedings in the Court unless the development consent was
surrendered
and the works on Council’s land demolished.
- On
the same day Ms Lu instructed her solicitor to send a letter to the Waldings.
This letter outlined, among other things, that if
following a survey it was
confirmed that the development had been carried out beyond the boundaries of the
Walding Property, the
Waldings were invited to provide a written undertaking
that they would surrender the development consent, demolish all development
carried out on the Dedicated Land and restore the Dedicated Land to its original
condition. The letter said that unless such an undertaking
was provided, the
Applicants would commence proceedings in the Court challenging the validity of
the development consent.
- Ms
Lu instructed her solicitor to engage a surveyor to undertake an identification
survey to confirm the extent of the front boundary
of the Walding Property and
whether any development had been carried out on land dedicated to the Council
for the purpose of road
widening. A survey report dated 12 December 2018 was
prepared by Rygate Surveyors which Ms Lu said showed that the concrete block
garage and roof terrace under construction were located wholly within the
Clontarf Street road reserve, the Dedicated Land.
- On
17 December 2018 Ms Lu caused her solicitor to send a further letter to the
Council enclosing a copy of the survey prepared by
Rygate Surveyors. A letter
was also sent to the Waldings stating among other things that the survey
confirmed the garage and roof
terrace under construction were located within the
Council’s road reserve and requesting a written undertaking that the
Waldings
would cease construction and demolish or remove all parts of the
development carried out beyond the boundaries of the Walding Property.
- On
5 February 2019 Ms Lu instructed her solicitor to send a letter to the Waldings
seeking urgent confirmation whether the requested
undertaking would be provided
and indicating that unless such undertaking was provided by 12 February 2019, a
Class 4 summons would
be filed in the Court.
- On
6 February 2019 Ms Lu was approached by Mrs Walding and had a conversation about
privacy concerns in which Mrs Walding said words
to the effect “Can you
talk to Fred [Mr Woo] to see if you are happy if we did some visual screening to
address the privacy
issues? This will save on legal costs.”
- On
11 February 2019 Ms Lu’s solicitor received a letter from Mills Oakley
solicitors acting for the Waldings. Following further
communication between
solicitors for the Applicants and the Waldings, Ms Lu instructed her solicitor
to file and serve the Class
4 summons on 13 February 2019.
- Regarding
visual impacts and privacy, Ms Lu deposed that the concrete garage with roof
terrace is causing significant visual impacts
on the Lu Property, in particular
the direct views from the roof terrace into her main living room on the ground
floor and outdoor
deck. Since erection of the garage Ms Lu has been forced to
keep the blinds in the living room closed to prevent people looking into
her
house. Ms Lu avoids using the outdoor deck and upstairs living area balconies
because of privacy concerns.
- Concerning
safety, Ms Lu deposed that she has a number of safety concerns regarding the
proximity of the garage to Clontarf Street
including that because of the two
metre front setback from the street of the garage, if a car was parked in the
driveway it would
be impossible to walk along the footpath without walking onto
the street. Ms Lu also expressed concern that any vehicle parked in
the driveway
would obstruct views of the street to the north, preventing a pedestrian wishing
to cross the street from looking left
down the road to check for traffic. Many
children regularly cross the street. Ms Lu was also concerned that large pot
plants installed
near the edges of the roof terrace may fall from strong winds
or being accidentally pushed off the roof terrace. Ms Lu said this
would pose a
serious safety hazard to people walking nearby including family or visitors
walking to the front door of the Lu Property.
- Concerning
the discovery of legal error, Ms Lu said that as soon as she became aware that
the proposed garage might be located beyond
the boundary of the Walding Property
she notified the Council and requested they take steps to cease construction.
Despite significant
correspondence between herself and several council officers,
the Council failed to take any action to prevent construction of the
garage.
- On
6 June 2019 Ms Lu received an email from the Council informing her that no sale
of the land would occur whilst court proceedings
are ongoing and that sale of
the road reserve would require a formal public process including a council
resolution.
Cross-examination of Ms Lu
- In
cross-examination Ms Lu was asked whether, upon receiving the “Notice of
Proposed Development” and attached Notification
Plan from the Council, she
took note of the measurements shown on the plan. She replied that she did not
carefully see the numbers
because she is not a professional planner. She did not
look at any of the numbers on the plan. At the time, all she knew was that
the
garage was within the Waldings’ boundary as she understood it. She agreed
that it is fair to say that all she did when
she received the plan was to look
to see whether the garage was within the Waldings’ boundary. She did not
try to assess how
far in front of the Walding Property the garage was to be
built.
- Ms
Lu was taken to par 26 of her affidavit where she said that she understood that
the proposed garage and roof terrace would be located
in the area depicted on
the Notification Plan. When asked if she now understands that the garage was in
fact built in the position
shown on the plan sent to her by the Council, Ms Lu
repeated that all she knew at the time was that the Waldings’ development
was within their legal boundary and that she knew where their legal boundary
was. It was then asked how she could say that she understood
that the proposed
garage and roof terrace would be located in the area depicted on the
Notification Plan if she did not know where
everything was to be built. Ms Lu
said she used common sense, expecting that all information provided to her by
the Council would
be correct. She disagreed that it was misleading to say that
she understood that the proposed garage and roof terrace would be located
in the
area depicted on the Notification Plan. When she received the Notification Plan
she thought all the information on it was
correct. When asked if when she
received the Notification Plan she looked at the distance between the front of
her own house and
the garage, she said she did not notice that. She did not
compare any lines for her house to the Walding Property. Nor did she compare
the
distance from her house to the start of the garage when she sent in her
objection.
- Turning
to events in 2009 when Ms Lu purchased her home, she agreed that she was told by
real estate agent Mr Mario Esposito (Mario)
that the area in front of her house
was her land but that she could not build anything on it. She did not analyse
the conversation
with the real estate agent. She never thought about development
at the front of her property. Ms Lu did not agree that at the time
she thought
she owned the land going all the way up to the street but could not build on it.
She agreed that she was told by Mario
and understood that land in front of the
letterbox was hers and that she could not build on it.
- Ms
Lu agreed that she found a folder left at the Lu Property by a previous vendor.
She could not remember the precise circumstances
around finding the folder, such
as whether she or her husband first discovered it or whether it was handed to
her by the real estate
agent.
- Ms
Lu was taken to a document that was contained in the folder, an application for
a building certificate lodged for the Lu Property
in 2008, with an
identification survey attached. Ms Lu agreed that at the time she understood,
because of what Mario had told her,
that the land in front of the letterbox of
the Lu Property was hers but that she could not build on it. She agreed that
when she
looked at the identification survey she recognised that she could not
build anything in front of the letterbox because of road widening.
She did not
focus much on the issue because she did not want to undertake any development in
front of the house. She agreed that
when she looked at the identification survey
she knew that she owned the area shown as road widening.
- Referring
to a conversation with the Waldings in late 2016 recorded in Ms Lu’s
affidavit, Ms Lu agreed that she did not make
any written notes of that
conversation. The conversation came about accidentally when Ms Lu ran into Mr
Walding outside. Ms Lu said
that Mr Walding said “we are going to build a
garage similar to your garage” and did some hand gestures to show where
the garage would be. Mrs Walding who was at the top of the house heard the
conversation and said words to the effect that they might
also have a deck on
top of the garage to let their dog out.
- Ms
Lu agreed that when she spoke to the Waldings in late 2016 she had not received
any further information about the road widening
proposal in front of her
letterbox since looking at the identification survey in the folder in 2009. She
did not agree that when
she had the conversation with the Waldings in late 2016
that she believed that she owned the land in front of her letterbox. She
said
she only knew that her boundary was her letterbox. She did not agree that when
she looked at the identification survey in the
folder that she knew she owned
the part shown as road widening. She did not accept that this contradicted her
earlier oral evidence.
She said she always maintained that her front boundary
was her letterbox. When asked when she first thought she did not own the land
in
front of the letterbox, she said this was from when she purchased her property.
She said that she always believed the front boundary
of the Walding property was
in line with her letterbox. Ms Lu agreed that she never indicated to the
Waldings that their boundary
only went up to about her letterbox. When asked if
at any time prior to meeting with the Waldings after the commencement of
construction
she said to them that their boundary did not extend beyond her
letterbox, she replied that she did not say anything about the boundary
to the
Waldings.
- When
asked how she formed the view that the boundary of the Walding Property was in
line with her letterbox, Ms Lu replied that she
formed that view based on the
identification survey from the folder and based on common sense as the
letterboxes are in line with
each other.
- Ms
Lu agreed that when she lodged her objection with the Council in 2017 she did
not make any reference to what she believed to be
the boundary of the Walding
Property. She said that she did draw a picture that showed their garage in line
with her garage.
- Ms
Lu was then asked several questions about the privacy impacts of the garage
being her main concern with the development and the
possible ameliorative
measures that could be put in place.
Affidavit of Adrian
Walding
- The
Waldings read the affidavit of Mr Adrian Walding affirmed 9 August 2019 which
included several annexures. Mr Walding deposed that
when he and his wife Mrs
Walding purchased the Walding Property in 2014, he was not aware of any land
reservations concerning the
grassed area at the front of the Walding Property
facing Clontarf Street. His family has always treated this area as their own
including
mowing the lawn and maintaining the garden.
- Mr
Walding said he and Mrs Walding attended a pre-lodgement meeting with the
Council’s Senior Development Officer in May 2016
prior to lodging the DA
and were advised to approach their neighbours regarding the proposed garage to
ensure they did not have any
objections. In the next few months Mr and Mrs
Walding spoke with Ms Lu outside the Walding Property and explained where they
intended
to build the garage. Ms Lu did not raise any objections. Between August
2016 and December 2018 preparatory works were undertaken
including preparation
of a geotechnical report, excavation, and relocation of gas pipes. On or around
4 December 2018 Mr Walding
spoke with Mr Woo about the relocation of gas pipe
work being undertaken.
- On
10 December 2018 Mr Walding had a conversation with Mr Dan Goodwin, building
surveyor at the Council, during which Mr Goodwin said
words to the effect
“only the Court or Council can do that [require you to stop work on the
renovation]. You have a valid DA
so you can continue with your building
works.” Mr Goodwin further said words to the effect “the changes in
the boundary
were made in 1956 and were not updated on the register that we use
to check boundaries. I’ve also checked with our planning
office and they
have no intention of using the land. This situation happens from time to time on
Road Reserves and the Council ends
up leasing the land back to the resident...
or gifting it back to you.”
- On
11 December 2018 Mr Walding exchanged emails with Mr Goodwin. Mr Goodwin
confirmed that the Applicants’ lawyers had no power
to force the Waldings
to stop work. Another email stated, “you guys have done nothing wrong and
nothing illegal has occurred”.
- On
11 February 2019 Mrs Walding received an email from Ms Lu requesting that pot
plants on top of the garage wall be removed due to
safety concerns. Mr Walding
removed them immediately.
Affidavit of Alexandra Walding
- The
Waldings read the affidavit of Mrs Walding, affirmed 9 August 2019. Mrs Walding
deposed that during the purchase of the Walding
Property in 2014 she was not
made aware of any land reservations concerning the grassed area at the front of
the Walding Property
facing Clontarf Street. As part of the sale paperwork, Mrs
Walding was provided with Lot 1 DP 119074 which she believed related to
the
Walding Property. The Walding Property was purchased through Cunninghams
Property who advertised the “potential for off-street
parking” which
Mrs Walding took to mean a garage could be built on the grass area in front of
the Walding Property. Mrs Walding
confirmed that since purchasing the Walding
Property, she and her family treated the grassed area as their own.
- Regarding
the DA, Mrs Walding deposed that she and Mr Walding began exploring the
possibility of a home renovation in 2015. In mid-2015
they engaged a draftsman
to prepare existing and proposed drawings. Mrs Walding used the government LPI
website to determine the
location of the Walding Property front boundary and it
was shown as being in line with the other properties on the street. Mrs Walding
described other preparatory steps taken in late 2015 including enquiries to
determine whether the renovations would meet the requirements
of complying
development. On 26 May 2015 she and Mr Walding attended a pre-lodgement meeting
with a council officer at which they
were advised to approach their neighbours
regarding the proposed garage.
- At
some point in the next few months Mr and Mrs Walding had a conversation with Ms
Lu outside the Lu and Walding Properties to the
following
effect:
Adrian: “We plan to carry out some renovations to our property. We want to
put in a similar style garage to yours. It would
start there [pointing to an
area above the rock embankment] and extend out here [pointing to the grass area
in front of the Walding
Property].”
Me: “We wouldn't use the top for entertaining but it would be great to
turf it and create more space for our dog.”
- From
June to December 2016 Mrs Walding took steps to prepare for submitting the DA
including obtaining a stormwater management plan,
geotechnical report, BASIX
certificate, landscape plan and SEE. On 20 December 2016 the DA was lodged with
the Council. On 9 January
2017 Mrs Walding received confirmation that lodgement
of the DA had been accepted and that the neighbour notification period had
commenced and would end on 23 January 2017. On 16 May 2017 Mrs Walding received
an email confirming that the DA had been approved
with stamped plans and
conditions of development consent attached. The approval was advertised in the
Manly Daily and no objections
were raised in the required three-month period.
- Regarding
the construction certificate, Mrs Walding deposed that she received engineering
structural drawings from GZ Consulting Engineers
on 12 December 2017. On 22
February 2018 she and Mr Walding met with Mr Goodwin of the Council to lodge
their construction certificate
and street level applications. On 21 March 2018
Mrs Walding received a letter from the Council authorising her street level
application
to construct a vehicle crossing. After a site inspection by Mr
Goodwin in the week commencing 12 March 2018 and further surveying
work, plans
and structural drawings, the construction certificate was issued on 19 July
2018. A hydra plan obtained from MGP Building
& Infrastructure Services
displayed the front boundary of the Walding Property as being in line with all
other properties on
Clontarf Street.
- Mrs
Walding deposed that construction commenced at the Walding Property on or around
27 August 2018. From August to November 2018
construction was undertaken
including excavation, construction of the steel foundation for the garage floor
concrete slab, pouring
of the concrete slab for the garage foundation,
substantial construction of the block walls of the garage, construction of a
steel
foundation for the garage roof, and installation of the garage door.
- Mrs
Walding deposed that she had several conversations with Mr Goodwin in October
and November 2018 during which Mr Goodwin advised
her that her neighbours had
made a complaint about the garage. In late November 2018 Mrs Walding had a
conversation with Mr Goodwin
to the following effect:
Dan: “You do not own the land you have built your garage on.”
Me: “Oh my God are you serious? How could this happen?”
Dan: “In the 1950s Council reserved a section of land in front of 4 houses
on Clontarf Street. I'm not sure what for, but they
obviously no longer need it.
The land register was never updated. I don't know how your neighbours have found
out. I think they are
using this as their objections to your DA
failed.”
Me: “What do we do now?”
Dan: “Try not to worry. People build on Council land all the time [then
gave local examples of encroachment issues that had
been resolved]. We can sort
this out. You won't be told to knock it down. It is likely Council will gift you
the land.”
- Mrs
Walding said that Mr Goodwin made a number of subsequent verbal representations
to her that led her to believe the Council would
resolve the issue. On 3
December 2018 Ms Lu approached Mrs Walding in front of the Walding Property and
they had a non-confrontational
conversation to the following
effect:
Lin: “Are you aware your garage is over your boundary.”
Me: “Yes. I am aware of your complaint to Council. We have just found out
the land was reserved in the 1950s and Council did
not update their registers.
When we bought the property we believed our boundary was in line with all the
other properties on the
street. I've had a discussion with Council and it is
likely they will gift the land back to us instead of having the garage
demolished.”
Lin: “Your survey plan had ‘no boundary checks performed’
written on it.”
Me: “I'm so sorry. This is a terrible situation.”
Lin: “It’s not your fault but it's not our fault either. We will
take legal action.”
Me: “I understand. The garage has cost us so much money if we are made to
demolish it we will have to sue Council.”
- On
10 December 2018 Mrs Walding received a letter from Bick & Steele solicitors
requesting she and Mr Walding cease building works
while a survey be performed.
This was the first formal notification received regarding the issue. On 11
December 2018 Mr Walding
exchanged emails with Mr Goodwin in which Mr Goodwin
stated, “nothing illegal has occurred”. Throughout December 2018
Mrs
Walding had further correspondence with Bick & Steele and Mr Goodwin.
- On
or around 24 January 2019 Mrs Walding contacted Mills Oakley seeking legal
advice. On 6 February 2019, with the agreement of her
solicitor, Mrs Walding
approached Ms Lu at the Lu property where they had a conversation to the
following effect:
Me: "We are keen to resolve this matter without commencing legal proceedings.
This will save us both legal costs. I agree the garage
doesn't look great right
now as the cosmetic finishings were never completed. We intended to put a
sandstone facade on the walls
and put plants around the top."
Lin: "We are concerned about privacy and you can see directly into our
house."
Me: "We can see you too so neither of us wants that. Maybe we could erect visual
screening to address your privacy concerns? Possibly
a trellis and landscaping.
Can you talk to Fred [Mr Woo] to see if he has any ideas of what could be done?
If you commence legal
proceedings we will have to defend ourselves."
Lin: "Yes I will discuss with my husband."
- Following
further communications between the parties and their legal representatives in
February 2019 and the filing of the Class
4 summons, Mrs Walding deposed that
she spoke with a council officer regarding reversal of the road reserve. She
also discussed the
issue with the owners of 109 and 111 Clontarf Street who both
expressed an interest. Mrs Walding was then advised on 6 June 2019
that because
of the legal proceedings the Council staff were unable to progress her enquiry.
- Mrs
Walding deposed that she and her husband have always been eager to resolve the
matter without recourse to a hearing and despite
wishing to reach a negotiated
settlement since February 2019, the first mediation did not occur until ordered
by the Court in June
2019.
Evidence of town planners
Mr Kosnetter
- The
Applicants read the affidavit of Mr Lee Kosnetter, Director of LK Planning,
affirmed 20 September 2019. Annexed to the affidavit
were Mr Kosnetter’s
curriculum vitae (CV), a letter of engagement from Bick & Steele dated 3
September 2019, and Mr Kosnetter’s
independent expert report dated 18
September 2019 (Kosnetter Report). In the letter of instruction to Mr Kosnetter,
the scope of
the assignment is described as “an expert report assessing
the impacts (including town planning environmental impacts) of the
‘as
constructed’ concrete block garage”.
- During
the hearing I ruled that certain paragraphs of the Kosnetter report could not be
read. The Applicants had sought to rely on
Mr Kosnetter’s opinion
that the Council’s assessment process was inadequate. In the absence of
any substantive challenge
to the development consent in these proceedings I did
not consider that could be brought forward as part of the argument on the
exercise
of the Court’s discretion.
- The
Kosnetter report states that it:
... provides an opinion on whether there are any unacceptable or unreasonable
impacts of the partly constructed garage structure
and associated roof terrace,
having regard to the applicable planning controls and other relevant matters
including those referred
to in section 4.15 of the EP&A Act, notwithstanding
boundary issues. Despite the structure being built beyond the boundaries
of the
subject site due to its irregular frontage, I have approached my assessment of
the impacts on an assumption that there is,
or could be in the future, a
“regular” street boundary matching the alignment of the majority of
properties along this
part of the street.
- The
impacts observed by Mr Kosnetter were that the garage created unacceptable
visual bulk and scale impacts upon the streetscape
and the Lu property and
unreasonable visual privacy impacts on the Lu Property. The Kosnetter report
concludes that the privacy impacts
associated with the rooftop terrace’s
projection forward of the building line are unreasonable. A potential remedy for
the
visual privacy impact could include fixed screening along the southern side
of the terrace, however this would worsen the already
unacceptable visual bulk
of the structure when viewed from both the street and the adjoining property.
The structure fails to satisfy
multiple objectives and controls in the Manly
Development Control Plan 2013 (Manly DCP), and therefore an assessment against
the
relevant heads of consideration under the EPA Act.
- Mr
Kosnetter prepared a supplementary report dated 21 February 2020 (Kosnetter
Supplementary Report). Commenting on the report prepared
by Mr Anthony Betros,
the Waldings’ town planner, he stated that Mr Betros has not provided a
direct opinion on the acceptability
of the building as constructed, but has
rather assessed the impacts of a modified form of the building which could be
approved. Mr
Kosnetter agreed with Mr Betros that potential mitigation measures
are available to the Waldings that could sufficiently ameliorate
visual privacy
impacts upon the Applicants to an acceptable level, but that the visual bulk and
streetscape impacts would remain
unacceptable and unreasonable. Mr Kosnetter
agreed with Mr Betros that the proposed garage, whether modified or as
constructed, satisfies
relevant controls in the local environmental plan (LEP).
- Commenting
on the mitigation measure proposed by Mr Betros (see [227] below), the Kosnetter
Supplementary Report concludes that proposed reduction of the trafficable area
of the terrace has the potential
to mitigate privacy impacts. Mr Kosnetter did
not agree that the other measures proposed would result in an acceptable built
form
outcome for the streetscape generally, or a satisfactory outcome in terms
of the visual impact on the Lu Property. Replacement of
a planter bed with a
palisade fence will increase the overall height of the structure, meaning any
benefit will be negligible as
viewed from the street and the Lu Property. The
provision of ivy or climbing plants will soften the appearance of the structure
but
would not satisfactorily address the requirement in the Manly DCP that
garage structures be designed and sited in a manner that does
not dominate
street frontage.
Mr Betros
- The
Waldings read the affidavit of Mr Betros Director of ABC Planning, sworn 15
November 2019. Annexed to the affidavit were Mr Betros’
CV, a letter of
engagement from Mills Oakley dated 4 October 2019, and Mr Betros’ expert
report dated 15 November 2019 (Betros
Report). Mr Betros was asked to prepare a
report assessing the town planning and environmental impacts of the existing
concrete block
garage on the Waldings’ property on the Lu property.
- In
the Executive Summary, the Betros Report states:
1.6 It is my understanding that the applicant... seek
demolition of the garage on the grounds of visual bulk and privacy concerns.
The
privacy concerns appear to be related to the trafficable terrace atop the garage
structure as it would provide opportunities
for overlooking to the front areas
of the applicants’ property.
1.7 Having regard to the above, it is my planning opinion that
ameliorative measures could reduce the visual bulk and visual privacy
concerns
without the need to demolish or relocate the garage and its associated terrace
above.
1.8 Such measures include:
• Reducing the trafficable area
of the terrace and replacing such area with on-slab planting to reduce the
potential for direct
lines of sight between the terrace and the front areas of
the southern neighbouring property.
• Reduce the depth of the planter bed walls around the
perimeters of the garage from 1-metre to 200mm and provide 1-metre
high metal
palisade fence atop the 200mm planter.
• Provide ivy or climbing plants along the southern side
of the garage to soften its appearance.
• Provision of a canopy tree within the front setback on
the northern side of the garage.
- The
following statements were made in the Betros Report:
• There are numerous garages and structures which are
similar in alignment to the garage that has been approved. On this
basis, the
siting of the garage is not considered to generate any negative visual impacts.
• As outlined above, the streetscape inspection revealed
that there are other garage and car port structures which have similar
alignment
to that proposed. There are also brick fences which share the same alignment as
the subject garage.
• The siting and design of the garage is compatible with
the streetscape along the side of Clontarf Street.
• Given the siting of the garage forward of the building
alignment, and the lack of privacy impacts for reasons outlined
above, it is not
considered necessary to provide landscape screens.
• I concur with the assessment within the Council
assessment report, notwithstanding the siting of the garage forward of
its front
boundary.
• I reiterate that the garage alignment is consistent
with the predominant alignment of garages, car ports and fencing which
share the
same alignment, noting that it is only the subject and adjoining 3 properties
which have the anomalous front boundary alignment.
The irregular shape of the
front property alignments of 105 and 111 Clontarf Street may also result in a
varied streetscape outcomes.
• The garage does not occupy the majority of the site
frontage which assists in maintaining landscaping within the front
setback
whilst landscaping is also located in the road reserve.
• I also note that the dwellings on the opposite/ eastern
side of Clontarf Street are concealed by dense established landscaped
plantings.
On the basis, the proposed garage would not generate any inconsistency with the
objectives. To ensure that the location
and design of driveways, parking space
and other vehicular access areas are efficient, safe, convenient and are
integrated into the
design of the development to minimise their visual impact in
the streetscape.
• As outlined above, the setback of the garage from the
roadway ensures that ingress and egress movements are unlikely to
generate any
adverse safety impacts. The proposed siting of the garage and the relationship
with the roadway is also consistent with
other garages and car ports in the
street.
• It is also noted that there is not footpath along the
western side of Clontarf Street, which minimises potential hazards
between the
driveway and pedestrian movements.
• This report has demonstrated that the garage and
landscaped terrace above will be compatible in the streetscape along Clontarf
Street.
- The
Betros Report concludes that the garage and landscaped terrace above will be
compatible in the streetscape along Clontarf Street.
The recommended design
changes will assist in achieving a suitable streetscape outcome whilst also
minimising visual bulk and privacy
impacts to adjoining properties. Mr Betros
disagrees with the planning assessment of Mr Kosnetter that it should be
demolished.
- Mr
Betros prepared a supplementary report dated March 2020 (Betros Supplementary
Report) in which he did not alter his opinions expressed
in his original report.
Contrary to Mr Kosnetter’s assertions, he stated that he considered
whether the Council’s assessment
was acceptable, as is clear in his first
report.
Applicants’ submissions on discretion under r
59.10
- The
limitation period pursuant to UCPR r 59.10 may apply given the finding of
Preston CJ in Bankstown City Council v Ramahi [2015] NSWLEC 74 at [73]
that the UCPR limitation applies when the s 101 limitation does not. Given UCPR
r 59.10 is a limitation period which can be expressly
extended by the Court
(subr (2)), it lacks the same ouster nature as s 101. The r 59.10
limitation period should be extended pursuant
to r 59.10(2) for the reasons
identified in the evidence, namely that no one knew the garage was being
constructed beyond the Walding
Property until late September and early October
2018. The error was only discovered because of the Applicants’
investigations
at that time. There was no reason or trigger for those
investigations to occur any earlier than that. The Waldings’ argument
that
the Applicants could have investigated things earlier rings hollow in the face
of the fact that they themselves did not do so.
From the time of discovery of
the error, the Applicants were diligent in pursuing their complaint to the
Council and commenced proceedings
in a timely manner thereafter, as demonstrated
at pars 27-59 of the SOAF and Ms Lu’s affidavit evidence.
Waldings’ submissions on discretion under r 59.10
- The
Waldings submitted that these proceedings give rise to substantial prejudice
under UCPR r 59.10(3)(b). They began constructing
the garage in September 2018
on the assumption they had a valid development consent, granted in May 2017.
Construction was all but
completed by the time these proceedings were commenced.
The same prejudice was identified by Cripps J in Woolworths v Bathurst
and Spigelman CJ in Pallas Newco.
- In
relation to subr (3)(c), the Applicants were aware of the DA and made
objections. They gave no evidence of when they became aware
of the development
consent being granted. The Applicants should have become aware of the decision
within three months of it being
made, not least because public notice of consent
to the DA was published in the Manly Daily on 8 July 2017. The failure to lead
evidence
from Ms Lu about when she first became aware of the Council’s
decision to grant development consent should be inferred to be
unfavourable to
the Applicants’ case: Commercial Union Assurance Company of Australia
Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 per Handley JA at p 418-419. The
inference arises that Ms Lu knew of the grant of development consent but took no
steps to challenge
it within three months. By exercising reasonable diligence
the Applicants should have become aware of the decision within three months
of
it being made.
- The
Applicants’ principal submission appears to be that they did not become
aware of the effect and consequence of the decision
(and not the decision
itself) until after construction commenced. This is not an identified
consideration under UCPR r 59.10. The
Applicants appear to interpret UCPR
r 59.10(3)(c) as if it applies to awareness of the consequence of the
decision, rather than to
awareness of the decision itself.
- In
cross-examination Ms Lu stated that she only looked at the position of the front
boundary of the Walding Property, not the position
of the corner of her house in
relation to the proposed garage or the distance between the façade of the
building on the Walding
Property and the rear of the proposed garage. Her
evidence about when she knew about the true position of the Walding Property and
the rear of the proposed garage was contradictory. If Ms Lu did know or suspect
where the true front boundary was, she must have
known or suspected the mistake
on the notification plans. If so, she did nothing about it.
- The
position of the garage was easily discernible by looking at the notification
plans showing the position of the garage in relation
to the Applicants’
house. Its position could have been determined by exercising reasonable due
diligence.
Applicants’ submissions on overall exercise of
discretion to order demolition
- The
breadth of discretion available to the Court to grant relief under s 124 of
the EPA Act (now s 9.46) has been the subject of judicial
consideration in many
decisions: for example F Hannan Pty Ltd v Electricity Commission of New South
Wales [No 3] (1985) 66 LGRA 306 (Hannan) at 311 per Street CJ;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (Sedevcic)
at 339-341 at 339 per Kirby P. There are many examples of the Court ordering
demolition as an appropriate remedy to a breach: Woollahra Municipal Council
v Sahade [2012] NSWLEC 76; Canterbury City Council v Mihalopoulos
[2010] NSWLEC 248; Glaser v Poole [2010] NSWLEC 143; Fairfield City
Council v Ly [2008] NSWLEC 322; and Sutherland Shire Council v Nader (No
3) [2007] NSWLEC 469, upheld on appeal in Nader v Sutherland Shire
Council [2008] NSWCA 265; Georges River Council v Stojanovski [2018]
NSWLEC 125 (Stojanovski); and Tweed Shire Council v Taylor [2019]
NSWLEC 45 (Taylor)).
- The
Applicants’ case on discretion is threefold. Firstly, a private advantage
has been won by the Waldings. No statutory provision
expressly empowering a
council to alienate public land for a private benefit has been triggered or
applies in this case. That process
should not occur by stealth or error. The
statements of Pepper J in Stojanovski at [30(d)] and Preston CJ in
Taylor at [20] are apposite. Private advantage has been won at the
expense of public duties imposed under legislation. Equal justice can
be secured
by ordering demolition.
- Secondly,
the environmental and amenity impacts of the development are unacceptable and
unreasonable. It is incorrect to say, as the
Waldings submit, that no adverse
consequences flow from the error and that demolition orders sought have no
environmental utility.
Mr Kosnetter’s evidence demonstrates that the
impacts of the structure including privacy and amenity, impact on the Applicants
and visual impacts on the streetscape are unacceptable and unreasonable. It is
Mr Kosnetter’s view that even if the structure
was modified, it would
still have an unsatisfactory impact on the Applicants and the public domain. The
Applicants’ lay evidence
also confirms the privacy impacts of the rooftop
terrace.
- Thirdly,
the Council’s assessment of the impacts of the development was cursory at
best. The fact that an approval was already
granted should not operate as a
shield when the Court looks at the impact of the garage on the Applicants. The
material submitted
with the DA was deficient. Schedule 1 of the EPA Regulation
requires a site plan to accompany a DA which refers to location, boundary
dimensions, site area, north point of the land and location and uses of
adjoining buildings (Sch 1 cll 2(1)(a) and 2(2)). The site
plan that accompanied
the DA was incorrect in several respects including: (i) it incorrectly
identified the boundary of the site
the subject of the DA; (ii) it did not
show the Dedicated Land; and (iii) it did not show the adjoining dwelling
at the Lu Property
in enough detail to enable the relationship between the
proposed garage and the Lu Property to be properly understood. The Council
also
did not consider plans that adequately showed elevations in dimensions in
sufficient detail.
- The
SEE that accompanied the DA was also deficient in a number of respects including
for a failure to mention any intention that the
garage roof would be trafficable
or an assessment of the associated amenity impacts.
- The
Council’s assessment of the privacy impact on the Applicants was
non-existent insofar as it concerned the terrace above
the garage. It is clear
from the Delegated Authority Report that the Council concluded that the proposed
garage would not directly
overlook private open space at the Lu Property. There
is no assessment of the trafficable roof terrace. Photographs in evidence
showing
people on the roof of the garage and town planner’s evidence
demonstrate that the Council’s assessment of the privacy
impacts
significantly understated the full impacts of the garage now constructed.
- The
Waldings have asked for unspecified orders under s 25B of the LEC Act. If
the whole of the development consent is declared invalid,
the Applicants would
not oppose a s 25B order being made in respect of the development wholly
contained within the Walding Property.
Demolition of the part of the structure
on the Dedicated Land is sought by the Applicants.
Waldings’ submissions
- The
Waldings submitted that if the Court finds that the Applicants have established
that the grant of consent was invalid, the Court
should not make any declaration
of any of the orders sought by the Applicants in the exercise of its discretion.
In addition, the
Waldings have made reasonable open offers to ameliorate any
impacts the garage might have on the Applicants' property even though
the
Council, in granting consent, considered those impacts to be acceptable.
- The
approach of Cripps J in Liverpool City Council v Roads and Traffic Authority
(1991) 74 LGRA 265 at 277-280 to the exercise of discretion is
apposite to the present circumstances. Notwithstanding that the applicant in
that matter had established
a breach of the EPA Act, Cripps J declined
relief, dismissed the proceedings and ordered the applicant to pay costs:
Liverpool City Council v Roads and Traffic Authority [No 2] (1992) 75
LGRA 210) (Liverpool City Council (No 2)). He found that in all the
circumstances, the making of an order would have no real environmental utility,
and so it is here. No real
environmental utility would be served by the making
of an order for the demolition of the garage or any other order. No adverse
consequences
flow from the error as to land ownership. The impact of the garage
on the Applicants' land was fully assessed by the Council. No
challenge is made
to the grant of consent based upon the Council's consideration of the impacts on
the Applicants' land. Further,
the Waldings have offered to carry out
ameliorative measures to further reduce the impact of the garage. In
Liverpool City Council v Roads and Traffic Authority, a
significant discretionary factor was that the proceedings were not commenced
until after construction was well advanced. So it is
here. The proceedings were
not commenced until the garage was effectively completed.
- In
further answer to the Amended Summons, the Waldings rely upon the following:
(a) The Waldings were, on the date of the lodgement of the DA on 20
December 2016, the registered proprietors of Lot 1 DP 119074 which
is known as 107 Clontarf Street, Seaforth.
(b) Six Maps is a website published by the NSW Government to be used by the
public to identify the boundaries of land on aerial photographs.
The boundaries
in the screenshot in evidence (EB p 70) is the same as in the SEE
dated 15 December 2016 and in the Council’s
Delegated Authority Report
dated 9 May 2017. Mrs Walding viewed the Six Maps website to see the location of
the front boundary. No
such disclaimer as identified by the Applicants appears
when viewing property boundaries on the Six Maps website.
The Applicant commented on this submission to the effect that the evidence at
EB p 70 is an undated screenshot of a Six Maps image
of the Walding Property. A
disclaimer does appear at the bottom of the image, indicating that the report is
provided for information
purposes only and that LPI does not warrant or
represent that the information is free from errors or omissions, or that it is
exhaustive.
(c) At all relevant times since the publication of Six Maps, Lot 1
DP 119074, as it appeared on the website, showed the street frontage
extending to a position which included the Dedicated Land. This is confirmed by
the evidence of Mrs Walding that she looked at the
Six Maps website in about
mid-2015 as identified in her affidavit. The SEE and the Council’s
Delegated Authority Report all
show the same front boundary location as
including the Dedicated Land.
The Applicants commented on this submission to the effect that Mrs Walding
deposed that she checked Six Maps in mid-2015 and it (incorrectly)
showed the
road reserve as being part of Lot 1 DP 119074.
(d) On physical inspection when observed from Clontarf Street, the street
frontage boundary appears to be as identified by Six Maps.
The statement under
“Objective 2” in the Council’s Delegated Authority Report also
supports this, together with
all the Six Maps plans in evidence.
The Applicants commented on this submission to the effect that none of the
documents referred to by the Waldings support the assertion
that “on
physical inspection when observed from Clontarf Street the street frontage
boundary appears to be as identified by
Six Maps”.
(e) The SEE, which accompanied the DA, contained a colour photograph of the
Six Maps map of Lot 1 DP 119074.
(f) The Delegated Authority Report prepared by the Council also contained a
colour photograph which depicts Lot 1 DP 119074 as shown
on the Six Maps
map, and states that an inspection took place on 11 April 2017. Photographs of
the garage location were taken and
are contained under a statement that the
proposed garage is consistent with other properties on the street where the
garage is located
on the front boundary.
(g) Both the DA and accompanying SEE and the Council in considering the DA,
relied upon Lot 1 DP 119074 as it was depicted in the
Six Maps map as
accurately identifying the boundaries of that lot. There is no evidence the
mistake was intentional. There is no
evidence that the Council’s erroneous
belief was based on its reliance on the survey and other drawings supplied by
the Waldings.
The Council’s letter to the Applicants dated 7 December 2018
(EB p 233) acknowledges that the Council’s own records were
incorrect,
suggesting that any error in relation to the location of the front boundary of
the Walding Property was not caused by
material from the Waldings.
The Applicants commented on this submission to the effect that the Council
relied upon the erroneous survey and other drawings provided
to it by the
Waldings.
(h) The Council was the owner of the Dedicated Land.
(i) The Dedicated Land was zoned R2 “Low Density Residential”
under the Manly LEP, as was Lot 1 DP 119074, and was not
zoned as to
indicate it was part of a road or road reserve. Garages are permissible in the
R2 zone. Removal or demolition is not
required on the basis of impermissibility.
The LEP zoning map could not have alerted the Waldings, their agents or the
Council to
the error in the records.
The Applicants commented on this submission to the effect that all roads in
the vicinity of the Walding Property are included within
zone R2 (rather than
some special purpose zone for roads).
(j) The Council was appointed as the principal certifying authority (PCA)
pursuant to s 109E of the EPA Act on 2 February 2018 and,
pursuant to its
function as the PCA, issued construction certificate CC2018/0207 (the CC) on 7
August 2018 for the works in respect
of the garage on the Dedicated Land and
those on the Walding Property, and at no time doubted that Lot 1 DP 119074
extended to the
street frontage shown in the Six Maps map. The mistake was not
intentional. The evidence does not establish that the Council’s
erroneous
belief of the position of the front boundary arose from reliance on the survey
and other drawings supplied by the Waldings,
given the Council’s admission
that its own records were incorrect and what was shown on Six Maps.
The Applicants commented on this submission to the effect that it is clear
that in issuing the CC, the certifier relied upon the survey
plan and other
drawings prepared by the Waldings.
(k) In April 2018, prior to when the CC was initially about to be issued, the
Council first noticed that Sydney Water infrastructure
was located on what is
now known to be the Dedicated Land and, acting on the assumption that the pipes
were on the Walding Property,
advised the Waldings to apply to Sydney Water for
building plan approval.
(l) On 9 April 2018, Sydney Water wrote a letter with Ref No 428568 in
response to the building plan assessment application made by
the Waldings
containing a map showing the location of the garage within the boundaries of the
site.
The Applicants commented on this submission to the effect that what the
Waldings assert is not visible on the evidence.
(m) The Sydney Water map shows the lot extending to the street frontage as
shown in the Six Maps map. The letter advised that the
construction of the
garage in the proposed location required further assessment as it may impact its
infrastructure assets and referred
the Waldings to a Sydney Water servicing
coordinator.
The Applicants commented on this submission to the effect that what the
Waldings assert is not visible on the evidence.
(n) The Sydney Water servicing coordinator was engaged to prepare and carry
out a service protection report which also contained a
plan that showed the lot
extending to the street frontage as shown in the Six Maps map. The mistake was
not intentional nor does
the evidence establish that the Council’s
understanding of the front boundary was based on its reliance on the survey and
other
drawings supplied by the Waldings, including Six Maps and the
Council’s own records.
The Applicants commented on this submission to the effect that the service
protection report expressly relies on the survey plan prepared
by the Waldings
for boundary depiction.
(o) The accompanying design required the Waldings to have the Sydney Water
sewer pipes encased in concrete under the garage extending
one metre past
external walls and provided for an exclusion zone around the manhole cover in
what was assumed to be the Waldings’
front yard which has since been
completed.
(p) The Council has no plans to widen the formed part of the road that is
Clontarf Street to extend to the actual front boundary of
Lot 1
DP 119074 and, to the extent that there was a proposal to widen the road
into the Dedicated Land, the proposal had long since
been abandoned. When the
s 149 certificate was issued on 18 December 2015 the Council considered the
Dedicated Land was part of Lot
1 DP 119074. The certificate did not indicate the
lot was subject to road widening. The inference to be drawn is that the land
dedication
took place more than 60 years ago. Clearly the road widening did not
take place and was abandoned long ago and seemingly forgotten
as the Council
records do not appear to record it.
(q) On 18 January 2017 the Applicants made a written objection to the DA but
it made no reference to or allegation that the proposed
garage was to be
constructed on land not owned by the Waldings but on land dedicated to the
Council. Ms Lu’s oral evidence
was that she was aware of the location of
the Waldings’ front boundary at the time she considered the notification
plans and
then made her objection.
(r) At or around July 2018, the Council as PCA carried out necessary
inspections including utilities, driveway, formwork and concrete
pouring, and
the garage was completed, apart from cosmetic finishing, in November 2018.
(s) In December 2018, at or after the completion of the construction of the
garage on the Dedicated Land:
(i) the Applicants first claimed that the garage had been constructed on land
not owned by the Waldings but on land dedicated to and
owned by the Council and
claimed that the development consent was invalid; and
(ii) the Waldings only became aware that the garage may not have been
constructed on land owned by them in December 2018.
The evidence of Ms Lu suggests that she was aware, or certainly should have
been aware at the time the DA was notified, of the location
of the garage
intended on the Walding Property. Her evidence of when she first learned of the
true position of the front boundary
of the Walding Property in relation to the
garage and of her own property is contradictory.
The Applicants commented on this submission to the effect that they do not
agree with the dates relied on by the Waldings. After making
inquiries about
property boundaries, they sent an email to the Council on 9 October 2018 raising
their submission that development
was being carried out beyond the
Waldings’ front boundary.
(t) These proceedings were not commenced until 13 February 2019:
(i) the development consent having been granted on 9 May 2017, almost two
years before; and
(ii) the construction of the garage on the Dedicated Land having been
commenced on July 2018 and nearly completed in November 2018.
The Applicants
could have reasonably known earlier as they were aware that the Waldings’
boundary was roughly in line with
their letterbox, viewed the notification plans
and could have determined the location of the garage from these.
The Applicants submitted that they could not have known earlier than
September 2018 when the concrete slab was poured that the garage
was being built
on the Council’s land.
- The
Applicants’ evidence is that their main concern is the impact of the
development on their privacy. The Applicants bear the
onus of persuading the
Court to exercise its jurisdiction to order demolition. The evidence adduced by
the Waldings, including the
evidence of Mr Betros, is that an order for
demolition should not be made. The impact of the garage on the Applicants’
enjoyment
of their property can be addressed by orders consistent with the
recommendations of Mr Betros. The Waldings have made reasonable
open offers to
ameliorate the impacts of the garage. No real environmental utility would be
served by making an order for demolition
of the garage. No adverse consequences
flow from the error as to land ownership. The impact of the garage on the
Applicants’
land was lawfully assessed by the Council and no challenge is
made to the grant of consent based on the Council’s consideration
of the
impacts on the Applicants’ land.
- It
is a significant discretionary factor that the proceedings were not commenced
until the garage was effectively completed.
- The
Waldings submitted that alternatively the Court should make orders under
s 25B of the LEC Act specifying compliance through the
Waldings obtaining
development consent for the use of the garage.
- The
Applicants seek to rely upon alleged inadequacies in the DA and the
Council’s assessment of the DA (see Applicants’
submissions
summarised in [240]
above). The Applicants sought to raise these matters on the first day of the
hearing. These matters had not previously been raised
in submissions or
pleadings. The Court ruled that the Applicants were not allowed to raise these
matters and rejected paragraphs
in Mr Kosnetter’s report on that basis.
The Applicants should not be permitted to raise these matters now, contrary to
the
Court’s ruling.
Discretion to extend time under UCPR r
59.10 granted
- Most
relevantly for the application of UCPR r 59.10 is whether the delay in
commencing these proceedings by the Applicants outside
the three month period
should preclude them being commenced, or at this stage proceeding to final
determination. The Applicants bear
the onus of demonstrating why time to
commence these proceedings should be extended. Under subr (3), matters the Court
can consider
include (a) any particular interest of the plaintiff in
challenging the decision; (b) possible prejudice to other persons caused
by
the passage of time, if the relief were to be granted including but not limited
to prejudice to parties to the proceedings; (c)
the time at which the
plaintiff became or, by exercising reasonable diligence, should have become
aware of the decision; and (d)
any relevant public interest. This list is
not exhaustive given the chapeau of subr (3) of matters that the Court can
consider. As
identified in Bankstown City Council v Ramahi at [74] citing
Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] and
Dyason v Butterworth [2015] NSWCA 52 at [65], additional considerations
can include the length of delay, the reasons for the delay and whether an
applicant has a fairly arguable
case.
- The
competing submissions on discretion to extend time are finely balanced in this
matter. The starting point for the events that
have unfolded is that the
Waldings applied for development consent over land which they did not own at the
front of their property.
Their error was compounded by the Council’s
inadequate records in relation to the road reservation executed in the early
1950s
which resulted in council staff not identifying the error. The Waldings,
the person who prepared the SEE and the Council relied on
Six Maps to locate the
front boundary. Apparently Sydney Water also relied on Six Maps. Indeed much of
the Waldings’ submissions
set out in [246(a)], [246(b))], [246(c)], [246(d)], [246(e)], [246(f)], [246(g)], [246(j)], [246(m)] above is focussed on the use of Six Maps, suggesting
this was reasonable on their part. The website has a disclaimer on it when
a map
is printed suggesting it should not be so used. No boundary survey plan of the
Waldings’ property is in evidence. I therefore
infer none was obtained at
the time of purchase of their property in 2014, in the absence of which the
precise boundaries were not
identified to them or by them at that time. The
various plans in evidence are discussed above in [14]-[22].
- No
boundary survey or site plan was prepared for the Waldings’ DA despite the
requirement in Sch 1 Pt 1 cl 2(1)(a) and (2) of
the EPA Regulation
with the result that their front boundary was not identified correctly at the
time their DA was submitted. All
the plans lodged in support of the
Waldings’ DA show their front boundary in the wrong location. The perils
of relying on Six
Maps to identify legal property boundaries as the Waldings and
the Council’s assessing officers did are well and truly highlighted
by
these events. While the Respondents submitted that Six Maps is published by the
NSW Government for use by the public to identify
boundaries of land on aerial
photographs, that is clearly not correct for all purposes. Use of Six Maps does
not necessarily comply
with the EPA Act and EPA Regulation concerning the
identification of property boundaries.
- The
Waldings’ counsel sought to suggest that the Council relied on its own
inquiries rather than the plans attached to the Waldings’
DA. It is
difficult to draw any conclusion on that issue but I have noted above in [21] that the error in the
southern boundary dimension in plans lodged with the DA also appears on the site
analysis plan approved by
the Council, suggesting reliance on the plans lodged
with the DA.
- The
Waldings’ counsel endeavoured in cross-examination to suggest that Ms Lu
should have noticed the front boundary error in
the notification plan sent out
by the Council. The notable matter that the Waldings’ submissions do not
acknowledge is the
reference to the southern boundary measurement of 36.575
metres as identified on Lot 1 DP 119074 on a number of plans, as set out
above in [14]-[22]. This boundary
measurement is identified in Ms Lu’s evidence as an important piece of
information. The southern boundary measurement
on the notification plan shows
the deposited plan boundary length, not the actual boundary length for the land
intended to be the
subject of the Waldings’ DA. The same errors appear in
the plans approved by the Council. These are the circumstances against
which Ms
Lu’s actions should be considered.
- In
terms of the matter identified in subr (3)(c), the Applicants’
interests are as neighbours who have a substantial building
located next to
their front boundary on land which they knew to be owned by the Council and
which they did not understand was the
subject of the Waldings’ DA. I
accept their evidence that the location of the garage with a rooftop trafficable
deck very close
to their living area at the front of their house is having
substantial privacy impacts upon them. That is clear from the photographs
attached to Mr Lu’s affidavit.
- In
relation to subr 3(b), there is substantial prejudice to the Waldings caused by
the passage of time if the relief sought of demolition
of the garage is granted,
given they have now nearly completed expensive construction of a substantial
garage and undertook additional
expensive works to comply with Sydney Water
requirements. The Waldings built their garage in reliance on their development
consent
and it was largely complete in November 2018 before these proceedings
were commenced in February 2019.
- In
relation to subr 3(c), the time when the Applicants should have been aware that
the Council granted development consent in May
2017 exercising reasonable
diligence is the relevant event to which the subsection refers, as the Waldings
rely on. There is no evidence
about when Ms Lu became aware that development
consent had been granted and that notification of the DA had taken place.
- The
factors in subr (3) are not exhaustive. Other relevant matters that may be
considered includes the strength of the Applicants’
case. I have found
that the absence of owner’s consent at the time development consent was
granted is a jurisdictional error.
- Turning
to the length and reason for the delay, on the Applicants’ case the
relevant time to consider is when they became aware
that the Waldings’
development consent purported to allow them to build on the Council’s
land. This occurred only after
construction commenced, on Ms Lu’s
undisputed evidence, in late September 2018. Ms Lu then arranged for a search of
property
boundaries. Ms Lu alerted the Council of her concerns on 9 October 2018
and had several email exchanges with council officers in
relation to her request
that they take action. The discovery that the garage was built on council land
did not come to light until
the Applicants took action. The Applicants’
solicitor gave notice of intention to the Waldings to commence proceedings in
the
Court unless an undertaking to demolish the garage was received on 10
December 2018. The Rygate Survey was prepared on or about 12
December 2018.
Discussions were held between the parties. Ultimately these proceedings were
commenced on 13 February 2019.
- The
Waldings submitted that Ms Lu, if exercising reasonable diligence when she
received the notification plan from the Council in
December 2016, should have
noticed the incorrect front boundary on the notification plan for the DA. This
plan showed the side boundary
measurement which she understood was the correct
length. Ms Lu was cross-examined about this. Her evidence was that she assumed
that
the information she received from the Council was correct. She did not
notice the distance between the front of her house and the
garage as shown on
the notification plan. Her evidence is that she is not experienced in reading
plans. As a result of her conversation
with the Waldings before the DA was
submitted, she understood that they understood where their front boundary was
and the common
boundary length identified in the notification plan was correct.
As Ms Lu was not then aware of the proposed location of the Waldings’
garage beyond their legal boundary, she did not comment on that issue to the
Council in her submission during the notification of
the DA period.
- Ms
Lu’s affidavit evidence summarised above in [172]-[192] is to the effect that
she understood there was some restriction on the use of the land at the front of
her property. While there
were some changes in her precise evidence about when
she understood her boundary did not extend beyond her letterbox, that does not
undermine her overall evidence. I have already identified the errors in the
plans submitted with the Waldings’ DA. I accept
Ms Lu’s evidence
that she was not aware at the time of the notification plan of the DA of the
error in the location of the
front boundary of the Walding property and there
was no failure to exercise reasonable diligence on her part.
- Mr
and Mrs Waldings’ affidavits refer to them not being made aware of a road
reservation at the front of their property at the
time of purchase. Whatever
gave rise to that situation, it was certainly not caused by the Applicants. Mrs
Walding refers in her
affidavit to advice from Cunningham’s Real Estate
agency at the time of their purchase. A plan of the Walding property prepared
by
that agency essentially for marketing purposes is attached to her affidavit.
That plan states that it is indicative only and should
not be taken as an exact
representation of the property, its accuracy has not been verified and
prospective purchasers must rely
on their own enquiries and verify the accuracy
of the information before proceeding. Mrs Walding relied on Six Maps to identify
her
front boundary when the DA was being prepared. That also has a caveat upon
it that it should not be relied upon for boundary purposes.
If a boundary survey
had been prepared which measured the side boundary dimension shown on the
deposited plan, plans and documents
lodged with the DA and in the plan approved
by the Council when development consent was granted would presumably have had
the front
boundary correctly identified. The form of development sought and
approved would of necessity have been different if confined to
the
Waldings’ property.
- Balancing
these many factors, I consider that leave to commence and continue these
judicial review proceedings should be granted.
Exercise of
discretion – is demolition of garage or other relief warranted?
- The
circumstances of this case are unfortunate to say the least. The Waldings sought
and obtained development consent from the Council,
the latter being aware that
it was assessing an application for land which turned out to include land in
front of the legal boundary
of the Walding property. As I have found that a
jurisdictional error has occurred given the absence of landowner’s consent
when development consent was granted, the issue arises whether the relief the
Court grants should include a declaration of invalidity
of the development
consent and separately whether demolition of the garage or some other order
ought to be made. The Applicants argued
private advantage to the Waldings,
environmental impacts on the Applicants as a result of the garage and criticised
the Council’s
assessment. While the last argument is recorded in the
Applicants’ submissions above in [240], parts of it are contrary to the ruling I made during
the hearing that a challenge to the granting of development consent by the
Council on the grounds of inadequate assessment was not permitted in a
discretionary argument. Nevertheless the Applicants’
evidence does
establish that they are suffering substantial privacy impacts as a result of the
trafficable roof area on top of the
Waldings’ garage and I will take that
evidence into account.
- The
broad discretion of the Court to grant the relief it sees fit is identified in
the Applicants’ submissions in [237] above, citing the well-known authorities of
Hannan at 311 and Sedevcic at 339. The Court can order demolition
and has done so on numerous occasions but each case must be determined on its
own facts. A
number of matters relevant to the exercise of the Court’s
discretion in relation to the relief sought of demolition of the
garage have
already been canvassed above in terms of delay in commencing these proceedings
as was necessary to consider in relation
to the application of UCPR r 59.10. I
will not repeat them again but take them into account to the extent they are
relevant to the
exercise of the Court’s wider discretion.
- In
relation to the Applicants’ submission that the Waldings obtained a
private advantage, their doing so was unintentional.
This case is quite unlike
two cases relied on by the Applicants where the Court ordered demolition. In
Taylor building work without development consent partly on Crown reserve
land was carried out and in Stojanovski no development consent was
obtained for environmentally harmful works. The gaining of private advantage by
the Waldings was certainly
not deliberate and was not identified by the Council,
the relevant land owner, who as the consent authority considered the DA. This
submission has limited relevance in the peculiar circumstances here.
- I
should also note that the Council has filed a submitting appearance so that
there is no direct evidence of its intentions in relation
to the Dedicated Land
in light of the circumstances before me. Mr and Mrs Walding attested in their
affidavits to conversations with
council officers about the Council being
favourably disposed to the Waldings purchasing the Dedicated Land where the
garage is located.
On 21 May 2019, the Waldings made enquiries about their
intention to purchase the Dedicated Land by the proper application process
from
the Council with the “Land Dealings Officer, Property Commercial &
Tourist Assets”. The initial review by the
“Transport Civil &
Infrastructure Assets Team” is underway. The Applicants commented on this
submission to the effect
that in a letter to them the Council stated that it is
not considering disposal (by means of sale, lease or licence) of the Council
land. Ms Lu was told by a council officer that no sale would occur while court
proceedings were on foot and such a sale would require
a formal public process
including a council resolution. The evidence discloses that the Council’s
own records do not indicate
that it owns the Dedicated Land and apparently also
referred to Six Maps to identify land boundaries. The Council assessed and
approved
the Waldings’ DA in the usual course of business, was appointed
the certifying authority for the development consent and approved
the work
undertaken. No evidence of the Council wishing to retain the Dedicated Land is
before me. No basis to order demolition arises
from the Council’s actions.
- The
key issue in relation to whether demolition ought to be ordered as relief is
that the Applicants delayed in commencing these proceedings
in the sense that
the building the subject of the challenge was largely complete by the time
proceedings commenced. The substantial
financial prejudice to the Waldings is
significant given these circumstances.
- While
the Applicants attempted to have the Council address the problem, the Council
was not able to unilaterally change or withdraw
the DA. The Applicants should
have commenced proceedings earlier, given that they knew the Waldings were
continuing with building
work in reliance on what they were entitled to consider
was a valid DA. This is an important consideration in the exercise of discretion
as the financial hardship for the Waldings is very substantial if demolition of
their nearly complete garage is ordered in circumstances
where they held a valid
development consent at the time of building and the Council had acted as the
private certifier for the project.
- Considering
the evidence of the town planners set out above in [220]-[230], as I ruled during the
hearing, Mr Kosnetter’s opinion of whether the Council should have
approved the DA on merit grounds
is not able to be read in relation to
discretion, given that the DA was not otherwise subject to any substantive
challenge in these
judicial review proceedings. The planners agreed that
measures to address the privacy impacts on the Applicants’ property could
be implemented. They otherwise differed in their opinion of whether the garage
did fit within the streetscape along Clontarf Road.
Given the limited scope to
consider planning issues in these judicial review proceedings, the Applicant has
not demonstrated through
its planning evidence that demolition is warranted.
- Balancing
up all these factors, I do not consider that demolition is warranted. Measures
to ameliorate the privacy impacts on the
Applicants from the use of the rooftop
deck on top of the garage should be implemented with appropriate orders made to
achieve that
outcome. One proposal made by the Respondents was the application
of s 25B of the LEC Act. I do not consider that such an approach
is warranted
given that appropriate orders can otherwise be made.
- I
will also discuss with the parties whether I should make a declaration of
invalidity of the Waldings’ development consent.
As identified in
Liverpool City Council (No 2) at 212, a finding of a breach of the EPA
Act does not automatically give rise to a declaration being made. Nor do I
consider a declaration
is necessary to found the making of remedial orders. I
should note, given the Waldings’ counsel’s reliance on the outcome
in Liverpool City Council v Roads and Traffic Authority where proceedings
in which a breach of the EPA Act was established were dismissed, that I do not
consider the circumstances of this
case to be at all similar. The
Applicants’ delay is not disentitling to any relief being granted to them.
- The
Court was not taken to the details of the ameliorative measures proposed by Mr
Betros to relieve privacy impacts. It will be necessary
to consider how much, if
any, of the rooftop area of the garage should be allowed to be trafficable. The
parties will need to discuss
ameliorative measures to propose to the Court to
enable final orders to be made.
- Costs
generally follow the event in judicial review proceedings. The Applicants have
been successful in many of their legal arguments
with more limited success in
relation to the exercise of discretion. Costs will need to be considered by the
parties and submissions
made in the absence of agreement as to an appropriate
costs order once final relief has been determined.
- A
timetable for consideration of appropriate final orders, including to facilitate
ameliorative measures to be undertaken by the Waldings
and costs will be
discussed with the parties.
**********
Addendum made on 5 August 2021
- Further
to [276] of my judgment of 15 March 2021, the parties agreed on the following
orders:
(1) The First and Second Respondent must carry out in a
proper and workman like manner within 6 months of the date of these orders
the
ameliorative measures to the garage rooftop terrace in accordance with the
sketch plan prepared by Anthony Betros dated 15 July
2021 and contained at
Attachment “A” to these orders (Sketch Plan).
(2) Costs are reserved.
(3) The parties have liberty to restore on seven days’ notice with
respect to Order 1.
(4) Subject to Orders 1, 2 and 3 the proceedings are otherwise dismissed.
ANNEXURE A - lu
walding attachment a_2021_08_05_16_34_00_929 (28239, pdf)lu
walding attachment a_2021_08_05_16_34_00_929 (28239, pdf)
Amendments
05 August 2021 - Addendum to judgment added 5 August 2021
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