Winten (No 21) Pty Ltd v Lake Macquarie City Council [2024] NSWLEC 24 (22 March 2024)

Last Updated: 2 April 2024

Land and Environment Court New South Wales

Case Name:	Winten (No 21) Pty Ltd v Lake Macquarie City Council
Medium Neutral Citation:	[2024] NSWLEC 24
Hearing Date(s):	29 February 2024
Date of Orders:	22 March 2024
Decision Date:	22 March 2024
Jurisdiction:	Class 1
Before:	Pain J
Decision:	The Court orders that: (1) Newcastle City Council notice of motion dated 7 December 2023 is dismissed. (2) Each party pay their own costs of the notices of motion dated 7 December 2023 and 17 January 2024.
Catchwords:	PRACTICE AND PROCEDURE – construction and operation of s 8.5(7) of Environmental Planning and Assessment Act 1979 (NSW) enabling withdrawal of Class 1 appeal following grant of development consent as result of review – joinder of third party has no effect on application of section to applicant and consent authority
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 4.5, 8.1, 8.3, 8.5, 8.6, 8.7, 8.8, 8.11, 8.13, 8.14, 8.15, 39A Environmental Planning and Assessment Amendment Act 2017 (NSW) Interpretation Act 1987 (NSW), s 33 Land and Environment Court Act 1979 (NSW) Land and Environment Court Amendment Act 2002 (NSW) Land and Environment Court Rules 2007 (NSW), r 3.7 Uniform Civil Procedure Rules 2005 (NSW), r 12.1
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Review (NT) (2009) 239 CLR 27; [2009] HCA 41 Australian International Academy of Education Inc v Hills Shire Council [2011] NSWLEC 208 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Lake Macquarie City Council v Luka (1999) 106 LGERA 94; [1999] NSWCA 447 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Culleton (No 2) (2017) 263 CLR 176; [2017] HCA 4 Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 Sterling Engineering Co Ltd v Patchett [1955] AC 534 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Texts Cited:	Oxford English Dictionary, online ed, March 2024
Category:	Procedural rulings
Parties:	Winten (No 21) Pty Ltd (Applicant) Lake Macquarie City Council (Respondent) Newcastle City Council (Interested Party)
Representation:	Counsel: J Lazarus SC (Applicant) N/A (Respondent) Dr S Smith (Interested Party) Solicitors: Dentons Australia Pty Ltd (Applicant) Maddocks Lawyers (Respondent) Moray & Agnew (Interested Party)
File Number(s):	2023/00184208-003, 2023/00184208-004

JUDGMENT

1. The circumstances in which a merits appeal can be withdrawn following a review and grant of development consent arises for determination for the first time. Winten (No 21) Pty Ltd (Winten) the Applicant commenced Class 1 proceedings following the deemed refusal of its development application (DA) in relation to land on Woodford Street, Cameron Park (the Property). It wishes to withdraw the appeal. Two notices of motion (NOMs) have been listed to be heard together before a judge to consider whether Winten can do so.
2. Newcastle City Council (NCC) has filed a NOM dated 7 December 2023 (NCC NOM) which seeks an order for its joinder as a party in the proceeding relying on s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
3. Lake Macquarie City Council (LMCC) has filed a NOM dated 17 January 2024 (LMCC NOM) seeking:

1. Pursuant to s 8.5(7) of the Environmental Planning and Assessment Act 1979, the proceedings be withdrawn.

2. Order 1 is not to be granted, or if granted is to be stayed, until withdrawal or determination of Newcastle City Council’s application for joinder (whichever occurs first).

...

7. Newcastle City Council is to pay the Respondent’s costs of this motion.

4. LMCC does not wish to be heard on the NCC NOM. Winten opposes the NCC NOM. Winten conceded for the purpose of argument that NCC satisfies s 8.15(2)(a) of the EPA Act in that NCC seeks to raise contentions that would not otherwise be addressed. LMCC no longer presses any contentions as development consent has been granted to Winten following a review under s 8.3 of the EPA Act.
5. Winten also submits the LMCC NOM is unnecessary as it can effect a withdrawal of the Class 1 appeal pursuant to s 8.5(7) without the Court making an order. LMCC seeks a court order in prayer 1 of its NOM (but also submits such an order is unnecessary). Winten has not filed a notice of withdrawal of its appeal because it gave an undertaking to the Court on 14 December 2023 that it would not do so until the NCC NOM has been determined inter alia.
6. The issues in both NOMs are interlinked. If Winten and LMCC are correct the Court does not have jurisdiction to consider the NCC NOM and/or it is inutile. I will therefore consider the statutory construction issues in relation to the application of s 8.5(7) in Div 8.2 Reviews first as it may be unnecessary to further consider the NCC NOM depending on my finding.

Statutory construction of s 8.5(7)

7. It is necessary to consider s 8.5(7) of the EPA Act in its statutory context to address the statutory construction issues arising from the parties’ submissions.

Environmental Planning and Assessment Act 1979 (NSW)

8. Relevant sections of the EPA Act provide as follows:

Part 8 Reviews and appeals

Division 8.1 Introductory

8.1 Definitions: Part 8

In this Part—

appeal means an appeal to the Court under Divisions 8.3, 8.4, 8.5 and 8.6.
review means a review by a consent authority under Division 8.2.

Division 8.2 Reviews

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8.3 Application for and conduct of review

(1) An applicant for development consent may request a consent authority to review a determination or decision made by the consent authority. The consent authority is to review the determination or decision if duly requested to do so under this Division.

(2) A determination or decision cannot be reviewed under this Division—

(a) after the period within which any appeal may be made to the Court has expired if no appeal was made, or
(b) after the Court has disposed of an appeal against the determination or decision.

(3) In requesting a review, the applicant may amend the proposed development the subject of the original application for development consent or for modification of development consent. The consent authority may review the matter having regard to the amended development, but only if it is satisfied that it is substantially the same development.

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(5) The review of a determination or decision made by a local planning panel is also to be conducted by the panel.

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8.4 Outcome of review

After conducting its review of a determination or decision, the consent authority may confirm or change the determination or decision.

8.5 Miscellaneous provisions relating to reviews

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(4) If a determination is changed on review, the changed determination replaces the earlier determination on the date the decision made on the review is registered on the NSW planning portal.

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(7) If on a review of a determination the consent authority grants development consent or varies the conditions of a development consent, the consent authority is entitled (with the consent of the applicant and without prejudice to costs) to have an appeal against the determination made by the applicant to the Court under this Part withdrawn at any time prior to the determination of that appeal.

Division 8.3 Appeals—development consents

8.6 Decisions subject to appeal to Court under this Division

(1) A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division.

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8.7 Appeal by applicant—applications for development consent

(1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

(2) For the purposes of this section, the determination of an application by a consent authority includes—

(a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or
(b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.

(3) An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court.

8.8 Appeal by an objector—designated development applications

(1) This section applies to the determination of an application for development consent for designated development (including any State significant development that would be designated development but for section 4.10(2)), being a determination to grant development consent, either unconditionally or subject to conditions.

(2) A person who duly made a submission by way of objection during the public exhibition of the application for development consent (an objector) and who is dissatisfied with the determination of the consent authority to grant consent may appeal to the Court against the determination.

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8.11 Circumstances in which consent taken to have been refused for purposes of appeal rights

(1) A consent authority that has not determined an application for development consent (or for the modification of a development consent) within the period prescribed by the regulations for the determination of the application is, for the purpose only of this Division, taken to have determined the application by refusing development consent (or refusing to modify development consent) when that period ends.

(2) Subsection (1) does not prevent a consent authority from determining an application after the end of that period.

(3) Any such determination of an application does not affect the continuation or determination of an appeal made under this Division against the deemed refusal of consent (or modification of consent) under subsection (1).

(4) If any such determination of an application results in the grant of development consent (or the modification of development consent), the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have the appeal withdrawn at any time prior to the determination of the appeal.

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8.13 Effect of appeals on operation of consents

(1) If the granting of a development consent for development (other than State significant development) is the subject of an appeal made under this Division, the development consent ceases to have effect.

(2) If an appeal under this Division is discontinued, the consent is revived on the discontinuation of the appeal.

(3) A development consent that is granted as a result of a decision on an appeal under this Division is taken to be a development consent duly granted under Part 4. Any such development consent takes effect, subject to any order of the Court, on and from the date the decision is registered on the NSW planning portal.

(4) If the effect of a decision on appeal is that development consent is refused, any development consent granted ceases to have effect.

(5) Despite anything to the contrary in this section, a development consent is taken to have effect on and from the date fixed by—

(a) a court (whether or not the Land and Environment Court) that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the development consent, or
(b) the Land and Environment Court, if the validity of a development consent granted by that Court is confirmed by, or the development consent is granted by that Court as a result of, such a final determination made by another court that has not fixed that date.

8.14 Powers of Court on appeals

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(2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.

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Background

9. The following circumstances identified in the affidavit evidence of Ms Renner solicitor dated 31 January 2024 (Renner Affidavit) relied on by Winten were not in dispute. Winten has a concept approval which allows for the creation of up to 3,300 residential lots in 5 stages in an area known as Minmi. Winten’s DA in this Class 1 appeal relates to that part of stage 5 of the development under the concept approval that is located within the Lake Macquarie local government area.
10. The Hunter and Central Coast Regional Planning Panel (the Panel) refused development consent on 13 December 2023.
11. On 2 February 2023 Winten submitted an application for review under Div 8.2 of the EPA Act in relation to the refusal of the DA.
12. This Class 1 appeal was commenced on 8 June 2023 (in light of the six-month period in s 8.3(2)) in order to keep the review alive.
13. At the first directions hearing on 10 July 2023, the proceeding was adjourned pending the outcome of a briefing of the Decision Review Panel that was scheduled for 25 July 2023.
14. At the 25 July 2023 briefing of the Decision Review Panel a timetable for the assessment of the review application was set with a view to achieving a late November 2023 determination date. This timetable included the provision of requests for information by the councils, and responses to those requests by Winten.
15. On 5 October Winten was granted leave to rely on amended plans and documents and additional reports. Orders were made for the filing of statements of facts and contentions and for holding s 34 conferences in mid-April 2024.
16. The NCC NOM seeking joinder was filed on 7 December 2023 returnable on 14 December 2023.
17. On 14 December 2023 Winten gave an undertaking not to discontinue or consent to the withdrawal of the proceeding until such time as NCC’s joinder application was determined or withdrawn by NCC.
18. On 20 December 2023 the DA was approved by the Panel, effected when the new development consent was placed on the NSW Planning Portal.
19. The LMCC NOM was filed on 17 January 2024.

Winten’s submissions

20. The legal entitlement of the consent authority under s 8.5(7) of the EPA Act to have the present appeal withdrawn with Winten’s consent makes the joinder application by NCC inutile or the Court lacks jurisdiction to determine it.
21. Winten now has the benefit of a development consent granted on 20 December 2023 by the Panel. The appeal against the Panel’s original determination refusing development consent no longer has utility.
22. Section 8.5(7) is clear and unambiguous in its terms and should be applied on that basis. First the consent authority is entitled to have the appeal withdrawn, subject to the applicant’s consent and without prejudice to costs. Entitlement means a legal right or statutory entitlement without further order or grant of leave by the Court being necessary, see Sterling Engineering Co Ltd v Patchett [1955] AC 534 at 546 (Lord Reid), Lake Macquarie City Council v Luka (1999) 106 LGERA 94; [1999] NSWCA 447 at [36] (Handley JA, Sheller and Stein JJA agreeing).
23. Second, ‘withdrawn’ connotes the need for positive action by an applicant. An applicant effects the withdrawal, such as filing a notice of withdrawal which requires no action or approval from the Court. A withdrawal notice is unlike discontinuance under r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which may require leave of the Court in the event that all parties’ consent is not obtained. Section 8.5(7) contemplates a unilateral voluntary act by an applicant or as compelled by the consent authority. Alternatively, the less preferred construction is that action by the Court is required in terms of making an order such as that sought by LMCC (prayer 1 of LMCC NOM).
24. Third, s 8.5(7) is clear that it only requires the consent of an applicant, not any third party who has successfully sought joinder under s 8.15(2). In 2018 s 8.15 was included in Div 8.3 Appeals – development consents under Pt 8 Reviews and appeals, the same Division as s 8.11(4) and the same Part as s 8.5(7) in Div 8.2 Reviews. No section in Divs 2 and 3 were otherwise amended. This tells against a construction of those provisions which would expand the identity of the persons whose consent to withdraw was required to any other party joined in the proceeding. Such an approach would require the impermissible reading of additional words into s 8.5(7), see Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 (Taylor) at [38] (French CJ, Crennan and Bell JJ).
25. Nor does a purposive construction require the consent authority to obtain the consent of a third party who has been joined to the proceeding. The statutory entitlement to have an appeal withdrawn applies in only two circumstances, as a result of a review application lodged by an applicant (s 8.5(7)) or a deemed refusal appeal also by an applicant (s 8.11(4)). Those provisions recognise that once consent is granted through statutory mechanisms other than by dint of the determination of a court appeal, the appeal is of no further utility. Therefore the consent authority is entitled to have the appeal withdrawn, whether a third party joined to the proceeding consents or not. Where an intervening act by the consent authority in granting or changing a development consent resolves the issues between the applicant and the consent authority, it is consistent with the scheme of the Act (which does not allow objector merits appeals other than for designated development) that no other parties need to be involved in the discontinuance or withdrawal of the proceeding. It is therefore consistent with the self-evident purpose of these provisions for the appeal to be able to be withdrawn upon the taking of action by the applicant alone, or as a result of a demand by the consent authority.
26. Winten has the benefit of a development consent as a result of the review process and does not require the merits to be assessed by the Court. Pursuant to s 8.7(1) of the EPA Act, the only basis on which an appeal to the Court may be made is where an applicant for development consent is dissatisfied with the determination of the application by the consent authority. Winten is now satisfied (see Renner Affidavit par 37) with the determination on review by the Panel and the basis for the appeal is therefore removed. The Court does not have jurisdiction to determine the DA in these circumstances because the appeal is founded on the applicant’s dissatisfaction with a determination of a DA by a consent authority pursuant to s 8.7(1). Only in Class 4 proceedings can the Court consider whether to set aside a development consent.
27. NCC’s construction of s 8.5(7) would elevate a third party joined under s 8.15(2) to have greater rights than an objector to designated development as provided for in s 8.8. If NCC’s construction is accepted any party who has been joined to the proceeding would effectively have the same right as an objector to commence a Class 1 merits appeal. This is directly contrary to the statutory scheme that draws a clear distinction between an objector’s rights in relation to designated development and a third party’s rights in relation to non-designated development.
28. As Ms Renner deposes, the only reason the appeal was filed in the first place was to enable the review application to be determined, in light of the time limitation imposed by s 8.3(2) of the EPA Act. The only way to extend the six‑month time limit is to commence a court appeal, in which case the review can continue. Consent having now been granted on review, the appeal has served its purpose and has no further utility.
29. All these arguments address the first submission of NCC that s 8.5(7) simply does not operate if a party is joined under s 8.15(2).
30. The joinder of NCC to the proceeding would therefore be an exercise in futility. Even if it could justify its joinder to the proceeding on the merits, it would be pointless for the Court to do so, in circumstances where the appeal will be withdrawn as soon as the joinder application is determined.
31. In reply to NCC, s 8.13(1) does not apply as that arises from the grant of development consent. This appeal arises from the refusal of development consent. The review process relates to that appeal. That there is a grant of consent as a result of a review process does not change the nature of the appeal. Further s 8.13 uses the term ‘ceases to have effect’. Something can only cease if it has already commenced: Re Culleton (No 2) (2017) 263 CLR 176; [2017] HCA 4 at [29] (Kiefel, Bell, Gageler and Keane JJ). For s 8.13(1) to have any operation the consent must precede the appeal and not, as NCC submits, vice versa. Section 8.13(1) has no operation in this matter.
32. In further reply to NCC concerning an appeal against conditions of development consent, the conversion of an appeal against refusal of consent into an appeal against conditions by an applicant following a review granting development consent would be actioned by an applicant not agreeing to an appeal being withdrawn and filing a NOM seeking to amend the scope of an existing Class 1 appeal. In that circumstance, s 8.13(1) would apply as a development consent has been granted so that the development consent does not have effect where an appeal is on foot. That is not the facts of this case and s 8.13(1) has no application.

LMCC’S submissions

33. LMCC adopted the submissions of Winten with these additional points. Firstly, the drafting of s 8.5(7) is not clear. While no court order may be necessary to effect withdrawal, it may also be the case that the Court can make an order that a proceeding be withdrawn hence prayer 1 in the LMCC NOM.
34. Secondly, if NCC is correct non designated development objectors joined as a party have more rights than designated development objectors. Non designated objectors cannot initiate proceedings, they can only join in proceedings once on foot which are commenced by an applicant. An objector joined as a party cannot initiate and cannot prevent withdrawal of an appeal.
35. Thirdly, NCC fails to recognise the statutory strength of LMCC’s entitlement to have proceedings withdrawn under s 8.5(7).

NCC’s opposition to LMCC NOM

36. Winten does not have an operative development consent and the NCC NOM is not inutile. Section 8.13(1) applies as there has now been a grant of development consent on 20 December 2023 as a result of the review process under s 8.5(4). The new development consent was effected when placed on the NSW Planning Portal on 20 December 2024. This dissolved the earlier decision of the Panel to refuse consent and replaces that decision with the grant of development consent. Winten does not have an effective development consent due to the operation of s 8.13(1). This is now a Class 1 appeal against the grant of development consent to which s 8.13(1) applies rather than an appeal against the refusal of a DA. It does not matter whether the consent was granted before or after the commencement of the appeal, it remains the consent the subject of the appeal. The development consent therefore ceases to have effect until a decision by the Court (s 8.14(2)).
37. If an applicant is dissatisfied with the conditions of development consent and wishes to continue an appeal despite the grant of development consent following a review then s 8.13(1) applies. The review decision becomes the appeal decision. The Court is seized with power by virtue of s 8.14(2).
38. Winten and LMCC place heavy emphasis on the entitlement of a consent authority to have an appeal withdrawn under s 8.5(7). Section 8.5(7) has been unaltered albeit it has had different numbering since the EPA Act commenced in 1980. This provision was not drafted in a context of third parties having been joined to proceedings. Section 39A the first iteration of s 8.15(2) was inserted in the Land and Environment Court Act 1979 (NSW) by the Land and Environment Court Amendment Act 2002 (NSW). The second reading speeches did not indicate there was any intention to limit the participation afforded by joinder of third parties by reference to the entitlement of withdrawal. The remaking and renumbering of what is now s 8.5(7) by the EPA Act did not effect any substantive change in the subsection.
39. Firstly, properly construed s 8.5(7) does not apply in an appeal to which third parties had been joined under s 8.15(2). Winten and LMCC’s position does not consider the historical context and is contrary to the express object in s 1.3(j) of the EPA Act, being to provide increased opportunity for community participation in environmental planning and assessment. The Court should prefer a construction that better promotes the object or purpose of the Act, per s 33 of the Interpretation Act 1987 (NSW), which is achieved by not extending entitlement in s 8.5(7) to the context of an appeal to which third parties have been joined. This approach to construction does not require the reading in of additional words.
40. Alternatively, if s 8.5(7) applies the consent of a party joined under s 8.15(2) is required before proceedings can be withdrawn. Winten and LMCC’s argument fails to recognise the nature of an appeal and the functions of the Court on appeal. Appeal proceedings are not private litigation involving the interests only of an applicant and the consent authority. A respondent consent authority usually represents the public interest. The joinder provisions recognise that there are circumstances where the consent authority may no longer sufficiently represent the public interest so that joinder of other parties is warranted. The role of third parties joined in proceedings will be undermined and it would be contrary to the public interest and the objects of the EPA Act to construe s 8.5(7) to allow proceedings to be terminated, despite the issues that such parties have been permitted to raise not being raised. A purposive construction tells strongly against Winten and LMCC’s arguments about lack of utility. Joinder as a party means for all purposes, including for the application and operation of s 8.5(7). Winten is unable to take the benefit of its appeal right but in the same instance expect the Court to remove the opportunity provided to NCC to apply to be joined to the proceeding.
41. In reply NCC submitted that if joined as a party Winten would not effectively be forced to continue litigation as it has the option of filing a submitting appearance. NCC reiterated that Class 1 merits appeals are public litigation. Winten made a tactical decision to commence the proceeding. In taking the benefit of the court appeal process, Winten exposed itself to the risk that another party would be joined. Further while an objector to designated development may appeal as of right, a joinder party does not have that right and needs to overcome the hurdle of s 8.15(2) in order to be joined. Once this hurdle is overcome the joined party has all the rights of any party and may bar withdrawal of the proceeding either because s 8.5(7) does not apply to matters involving a joined party, or because withdrawal would require NCC’s consent.

Application of s 8.5(7)

42. Well-established principles of statutory construction include that an instrument must be read as a whole so as to give effect to all sections wherever feasible: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]- [70]. Where individual words require construction, their ordinary meaning must be considered in context: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305 cited in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 at [42], Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [25]- [41]. The consideration of context is discussed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Review (NT) (2009) 239 CLR 27; [2009] HCA 41 (Alcan) at 46-47 (Hayne, Heydon, Crennan and Kiefel JJ) extracted below (footnotes omitted):

[47] This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

43. Words will not be added into the reading of a provision unless the words address simple, grammatical drafting errors which would defeat the object of the provision if uncorrected: Taylor at [38]. The application of these principles mean NCC cannot succeed in its statutory construction arguments.
44. NCC’s first construction submission appeared to be that because of the introduction of s 8.15(2) into Div 8.3 of the EPA Act simpliciter that s 8.5(7) cannot apply if a party is joined under s 8.15(2). That submission is difficult to understand in that no principle of statutory construction appears to support that submission. Relying solely on legislative context for the policy underpinning the role of parties joined in proceedings under s 8.15(2) such as second reading speeches and an object of the EPA Act supporting community participation cannot alone inform statutory construction in the absence of any indication in the text that this is the effect of s 8.15(2) on s 8.5(7). Similarly NCC’s submission that merits appeals are public litigation does not alone assist in the statutory construction required here. Such an approach is contrary to Alcan in [42] above. Additional reasons for why this approach is incorrect are provided below.
45. Secondly, NCC submitted that if s 8.5(7) does apply, a party joined under s 8.15(2) must also give consent to a withdrawal of a merits appeal and can withhold that consent.
46. These arguments are not accepted for several reasons. Firstly, the wording in s 8.5(7) is unambiguous in referring to a consent authority and an applicant. Under s 8.5(7) a consent authority is entitled to have an appeal withdrawn with the consent of an applicant. Consent authority is defined for the purposes of the EPA Act in s 4.5(b) as relevantly ‘in the case of development of a kind that is declared by an environmental planning instrument as regionally significant development—the Sydney district or regional planning panel for the area in which the development is to be carried out’. Applicant is not defined in the EPA Act. The term appears in several sections of the EPA Act and would generally mean in Pt 8 an applicant for development consent in, for example, s 8.7(1). A third party joined as a party pursuant to s 8.15(2) is joined as a respondent. It is therefore difficult to see how such a respondent has a role under s 8.5(7) in providing or withholding consent to withdrawal of an applicant’s appeal where the entitlement rests with a consent authority.
47. Secondly, that s 8.15 (joinder of party) appears in the same Part as s 8.5 (Pt 8) does not provide any statutory construction basis for not applying the plain meaning of these terms in the absence of any statutory indication that something else should be done.
48. Thirdly, NCC submitted that no words were necessary to be read into s 8.5(7) to give effect to its construction and did not propose any. As Winten submitted NCC’s approach does require words to be read into the subsection if the drafter intended that a party joined under s 8.15(2) has a role under s 8.5(7). No ‘gap’ exists to be filled in this manner. Any words would do far more than correct a slip or minor drafting error contrary to Taylor. As Winten submitted explicit amendment to expand the application of the subsection to new parties joined under s 8.15(2) is needed if the subsection is to apply to them.
49. Fourthly, to the extent the legislative history of the provisions can illuminate, as Winten submitted, the inclusion of s 8.15(2) in Div 8.3 Appeals – development consents in the EPA Act was not accompanied by any change in s 8.11(4) or s 8.5(7) in Div 2 Reviews. This history supports Winten’s construction.
50. Fifthly, a general statement that a party once joined under s 8.15(2) is joined for all purposes, including the application of s 8.5(7), does not assist in the statutory construction of words with clear meaning. An extension of this submission by NCC is that if it can continue the appeal commenced by Winten that Winten could file a submitting appearance in its own appeal. Such an outcome is not in accordance with the statutory scheme for appeals which are able to be commenced by applicants for development consent. That a party seeking to join in a development appeal must overcome the hurdle of s 8.15(2) does not change the nature of the appeal by an applicant. Winten and LMCC contrasted the appeal to which NCC wishes to join as a party with the rights of objectors to designated development enabled by s 8.8(2) to appeal against a determination to grant development consent. The two statutory appeal processes are quite different. A party relying on s 8.15(2) must be joining an existing appeal commenced by an applicant under s 8.7(1). That scheme is not the same statutory scheme which enables objectors to designated development to appeal under s 8.8(2).
51. Turning to the application of s 8.13(1), the section has no application in the circumstances of this matter. That subsection applies where an appeal is made against a grant of development consent. The appeal commenced by Winten was commenced as and remains an appeal against the refusal of a DA, regardless of whether a review under s 8.3 has resulted in a grant of development consent as provided by s 8.5(4). Section 8.13(1) does not apply whereby Winten’s consent ceases to have effect. The example provided by NCC of an applicant for development consent wishing to appeal against the conditions of development consent, which would enliven s 8.13(1), is not the circumstances of this case. Winten does not wish to appeal against the development consent conditions imposed on it.
52. References by NCC to the Applicant making a tactical decision to commence an appeal to avoid the limitation in s 8.3(2) of the EPA Act and thereby enlivening the operation of s 8.15(2) are not helpful in informing the statutory construction required.

Impact on NCC NOM

53. I will now briefly consider the NCC NOM. Under s 8.15(2) the Court may join a person to a Class 1 appeal if the Court considers that an issue would not otherwise be considered or sufficiently addressed, or it is in the interests of justice or the public interest to do so. NCC supported its NOM with an affidavit of Ms Kolatchew executive manager legal and governance for NCC dated 5 December 2023 who submitted that the matters which would not be properly addressed by Winten and LMCC were the impact of the Property on current and future operation of the Summer Hill Waste Management Centre (SWMC), implications of traffic routes utilised for the waste vehicles associated with the SWMC, adverse amenity issues for future residents of the Property and the operational functions of the SWMC and satisfaction of the Further Environmental Assessment Requirement 1.16 of the Concept Approval. NCC submitted that s 8.15(2) is satisfied, as the other parties accepted, and further that NCC should be joined as a party as it serves the public interest and the interests of justice to do so. Continuation of the appeal has utility as NCC has contentions to raise which will otherwise not be heard as LMCC no longer proposes contentions at all.
54. Accepting that s 8.15(2) can be applied to NCC, my finding on the construction of s 8.5(7) means that joinder of NCC as a party is inutile as there will be no proceeding to join if prayer 1 of the LMCC NOM is made or the proceeding is withdrawn by Winten without the need for a court order. I will not be making an order that NCC be joined as a party.
55. Winten also submitted that the Court lacked jurisdiction to determine the NCC NOM as the Court’s jurisdiction in a Class 1 appeal is dependent on the dissatisfaction of an applicant with the determination of a consent authority under s 8.7(1). The Renner Affidavit confirms that Winten is now satisfied with the determination of the Panel on review to grant development consent and does not wish to continue its appeal. NCC’s NOM has been on foot since 7 December 2023 and had it been determined on or shortly after the first return date of 14 December 2023 the Court would have had jurisdiction to join NCC. Whether it is correct to state that the Court does not have jurisdiction to consider the NCC NOM is not necessarily obvious in light of the statutory scheme. As it is not strictly necessary to resolve whether the Court presently lacks jurisdiction to consider the NCC NOM I do not do so.

Operation of s 8.5(7)

56. The final matter to consider is the operation of s 8.5(7) in relation to how withdrawal of the Class 1 appeal should take effect. The wording of s 8.5(7) is interesting given its use of the word ‘withdrawn’. The operation of s 8.5(7) has not apparently arisen before. As an applicant makes an application to commence a Class 1 appeal it would be expected to be the party that withdraws the appeal. The equivalent provision exists in s 8.11(4) where there is a deemed refusal giving rise to an appeal right and a consent authority determines to approve a DA after the appeal period has ended. The parties did not refer to any cases where either subsection has been considered.
57. Subsection 8.5(7) states that a consent authority the respondent in an appeal has a right to an appeal being withdrawn subject to an applicant’s agreement inter alia. Whether a court order to that effect is necessary, or an applicant can file a notice of withdrawal of proceedings without further action being required by the Court, as Winten and LMCC submit, remains a question to determine. Either approach achieves the outcome contemplated by the subsection in that both approaches result in the proceeding being withdrawn. As Winten submitted the ability of the consent authority to have a withdrawal of proceedings effected can be contrasted with an application to the Court to discontinue proceedings enabled by r 12.1 of the UCPR. That rule provides a mechanism whereby a plaintiff can file a notice of discontinuance with the consent of the parties or with leave of a court. Where agreement cannot be reached amongst parties leave of a court may well be needed to file such a notice. The mechanism provided in s 8.5(7) does not contain any reference to the Court having a role.
58. The use of the word entitlement, submitted to mean a legal right or statutory entitlement without further order or grant of leave by the Court being necessary (see above in [22]), is a benefit held by a consent authority. In Sterling Engineering Co Ltd v Patchett Viscount Simonds at 545 and Lord Reid at 546 identified that ‘entitled’ in a particular statutory context concerning patents is a matter of legal right. In Lake Macquarie City Council v Luka at [36] the Court of Appeal (Handley JA, Sheller and Stein JJA agreeing) considered the meaning of ‘entitled to use’ in the context of when a public road came into existence, holding this connotes use by right not by permission. Accepting the cautions concerning the use of dictionary definitions expressed by Mason P in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28], Oxford English Dictionary (online ed, March 2024) defines ‘entitlement’ as ‘a legal right or just claim to do, receive, or possess something’.
59. The above authorities and the dictionary definition of entitlement confirm the legal significance of the term entitlement operating for the benefit of a consent authority in s 8.5(7). Contrasting the provisions of s 8.5(7) with r 12.1 in the UCPR highlights the absence of reference to a court playing a role in the context of that section. All these matters suggest that no court order is needed to effect the withdrawal of an appeal under s 8.5(7) provided an applicant consents. The withdrawal of a proceeding is without prejudice to costs and in the absence of agreement about these a separate application to the Court may need to be made before the notice of withdrawal can be effected. However I do not consider that means the Court must effect the withdrawal by the making of an order. This conclusion means that there is no need to make the order identified in prayer 1 of the LMCC NOM. My finding is sufficient to found a basis for Winten to file a notice of withdrawal of the Class 1 appeal.
60. I note for completeness that in support of the Court making an order allowing withdrawal of the appeal if that was deemed the appropriate course, Winten and LMCC referred to Australian International Academy of Education Inc v Hills Shire Council [2011] NSWLEC 208 a Class 1 appeal against a deemed refusal of development consent. Biscoe J had to determine if leave to discontinue should be granted when shortly before the hearing a planning panel granted development consent and the applicant filed a NOM for leave to discontinue the appeal. The respondent council contended that leave should be granted subject to the applicant accepting an additional condition of development consent. Biscoe J granted the applicant leave to discontinue unconditionally. His Honour held that ‘the alternative of refusing leave, thus pressuring the applicant to litigate for days the merits of the development application which the consent authority has determined in its favour, would neither be fair to the applicant nor in the public interest’ (at [14]). While not directly applicable given my earlier finding that no court order is needed the same broad consideration does apply to Winten’s circumstances in that it should not be forced to litigate further a development consent which it has already obtained through the mechanism of review provided in the EPA Act.

Costs

61. In Class 1 proceedings the Court is not to make an order for costs unless the Court considers it fair and reasonable to do so, per r 3.7(2) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules). Circumstances in which the Court might consider a costs order to be fair and reasonable are set out under r 3.7(3).
62. LMCC and Winten seek their costs from 20 December 2023 the date of the grant of development consent by the Panel following the review application. LMCC read the affidavit of Ms Walker solicitor dated 16 January 2024 annexing an email dated 10 January 2024 from LMCC to Winten and NCC, stating that LMCC, if obliged to take steps to resolve the matter, intended to seek its costs of both the NCC and LMCC NOMs. An email dated 10 January 2024 from Winten to NCC and LMCC stated that if NCC did not withdraw the joinder application by 12 January 2024, Winten would seek its costs of the NOMs from NCC.
63. LMCC submitted that its motion was reasonable in the interests of clarifying the application of s 8.5(7). Winten and LMCC rely on r 3.7(3) of the LEC Rules on the basis that the NOMs concern legal issues.
64. NCC submits that costs should not follow the event or that it is not fair and reasonable that its costs be paid. As NCC submitted the circumstances are unusual, and the interaction of the present statutory provisions appears not to have been judicially considered before. Their operation is important to the legislative scheme in the EPA Act. Such considerations inform the evaluative function called up by r 3.7 of the LEC Rules which identifies matters that the Court in its discretion may consider.
65. But for the undertaking proffered by Winten on 14 December 2023, NCC would have pressed to have its joinder motion determined on that day and in all likelihood would have been joined as a party.
66. Weighing up all these circumstances the appropriate costs order is that each party pay its own costs.
67. For complete clarity, I am dismissing the NCC NOM and I am making an order that each party pay its own costs in both NOMs. No further order is made in the LMCC NOM.

Orders

68. The Court orders that:

(1) Newcastle City Council notice of motion dated 7 December 2023 is dismissed.

(2) Each party pay their own costs of the notices of motion dated 7 December 2023 and 17 January 2024.

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