ADI Ltd v Hawkesbury City Council

APPLICANT Mr P R Rigg (Solicitor) SOLICITORS Deacons

RESPONDENT Ms L R Finn (Solicitor) LEGAL REPRESENTATIVES: SOLICITORS Abbott Tout

INTERVENER Mr B J Preston SC with Dr S E Pritchard (Barrister) SOLICITORS N/A

IN THE LAND AND 10329 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 30 August 2001

ADI LTD Applicant v HAWKESBURY CITY COUNCIL Respondent SALLY BONGERS Intervener JUDGMENT

1. By notice of motion the intervener in these proceedings, Ms S Bongers, has applied for orders that:

(a) the substantive proceedings be set down before me for determination; and (b) the orders made by Commissioner Bly on 19 March 2001 be set aside. 2. The substantive proceedings are a class 1 appeal against the decision of Hawkesbury City Council ("the council") to refuse to grant development consent in respect of a development application made by ADI Ltd ("ADI") relating to an open area site for the testing of electromagnetic emissions at 714 Upper Colo Road, Upper Colo.

3. In order to understand the context in which the notice of motion arises, it is necessary to outline the history of the proceedings, which is as follows:

(1) On 13 April 2000, ADI instituted a class 1 appeal in this Court against the decision of the council to refuse to grant development consent in respect of its development application; (2) Ms Bongers had made a submission to the council objecting to the grant of development consent;

(3) On 7 July 2000, Ms Bongers applied by way of notice of motion for leave pursuant to s 38(2) of the Land and Environment Court Act 1979 ("the Court Act") to be represented, give evidence and make submissions as if a party to the proceedings. Leave in those terms was granted on that date by Bignold J; (4) The council and ADI resolved the matters in dispute between them and applied to the Court for a consent order which would determine the development application by the grant of development consent subject to conditions;

(5) At the hearing of the application for consent orders ("the consent order hearing") on 16 - 17 August 2001, Ms Bongers ("the intervener") raised three issues for determination. They were, firstly, whether the proposed development was prohibited or permissible with consent under the relevant local environmental plan, secondly, whether the proposed development was consistent with the objectives of the relevant zone, and thirdly, whether the development application should be refused on specified merit grounds;

(6) In my judgment delivered on 18 October 2000 (ADI Ltd v Hawkesbury City Council (2000) 110 LGERA 406) ("the consent order judgment"), I held that the proposed development was permissible with consent, but that it was inconsistent with some of the objectives of the relevant zone and had unacceptable visual and noise impacts. On this basis, I declined to make the consent orders sought and stood over the proceedings to a call-over before the Registrar so that directions for the future conduct of the proceedings could be made;

(7) The intervener then applied by notice of motion for an order that the appeal be dismissed. After a hearing on 8 November 2000, I dismissed that notice of motion, principally upon the ground that ADI had not had the opportunity, at the consent order hearing, to put its case on the merit issues and on the issue of consistency with the zone objectives;

(8) At a call-over on 24 November 2000, the proceedings were set down for hearing on the merits before Commissioner Bly. That hearing proceeded over three days, and included a site inspection, the furnishing of further evidence by each party and by the intervener, and the submission by ADI of an amended landscape plan;

(9) In his judgment, delivered on 19 March 2001 ("the Commissioner's judgment"), Commissioner Bly found that the proposed development was consistent with the objectives of the relevant zone, and that there were no merit issues that necessitated the refusal of consent. He granted development consent, subject to conditions;

(10) On 17 April 2001, the intervener filed an appeal under s 56A of the Court Act, in which she sought an order setting aside the Commissioner's decision upon the basis that he had failed to consider an amendment to the relevant local environmental plan, and that he had not followed the findings of fact contained in the consent order judgment;

(11) In response, ADI filed a notice of motion seeking an order that the intervener's s 56A appeal be dismissed upon the ground that it was incompetent, she not being a party to the proceedings, and thus not entitled to appeal;

(12) At the hearing of ADI's notice of motion, the intervener filed a notice of motion, returnable instanter, seeking the orders that now arise for determination and which I have earlier outlined. 4. In the circumstances I have outlined, three notices of motion arise for determination. One is the intervener's notice of motion returnable instanter upon the hearing of the other notices of motion. Another is the intervener's notice of motion seeking a s 56A appeal. Yet another is ADI's notice of motion, seeking an order that the intervener's s 56A notice of motion be dismissed. The contest arising from the three notices of motion is between the intervener and ADI, the council having refrained from making any submissions in relation to the matters in issue. The intervener's submissions

The primary submission of Mr Preston SC, on behalf of the intervener, was that the Commissioner was without jurisdiction to hear and determine the class 1 appeal, and, in particular, to make any orders or findings of fact contrary to those made by me in the consent order judgment. He contended that, in effect, the decision of the Commissioner is a nullity, and accordingly there is no decision from which to appeal under s 56A.

Mr Preston submitted that, in these proceedings, the Court was constituted by a judge in accordance with s 6(1) of the Court Act which provides as follows: 6(1) All proceedings in the Court, and all business arising out of any such proceedings shall, subject to this Act, be heard and disposed of before a Judge, who shall constitute the Court.

Although s 36 of the Court Act provides for the delegation of jurisdiction in class 1 proceedings to a commissioner, in Mr Preston's submission, that delegation cannot be made when the proceedings are part-heard before a judge, and the commissioner cannot in those circumstances constitute the Court in lieu of that judge. Mr Preston submitted that once I had embarked upon the consent order hearing, I had in fact embarked upon a hearing of the proceedings, and the Court as constituted by me should conclude the hearing, there being no power to delegate the jurisdiction to a commissioner in those circumstances. Hence, Commissioner Bly had no jurisdiction to hear and determine the proceedings, and his decision is a nullity. The remedy, in Mr Preston's submission, is for the Court to exercise its inherent power to correct orders vitiated by error, and that involves setting aside the Commissioner's decision and re-listing the proceedings before me for hearing and final disposition.

Mr Preston acknowledged, as he must, that the consent order hearing was an application for orders by consent, and not a full hearing on the merits. The Court has adopted a practice for applications for consent orders, which is set out in par 9(b) of the Practice Direction 1996, but Mr Preston submitted that the Practice Direction reserves to the Court the ultimate responsibility for the disposal of cases. It is for the Court, as constituted, to determine how the proceedings should be finally disposed of, and that duty fell to be exercised by me and not by a commissioner.

Mr Preston also submitted that my decision was not an interlocutory judgment, and that, in particular, my finding of inconsistency with some of the zone objectives was final and binding upon the parties. Issue estoppel operates in that circumstance, so that the issue of consistency with the zone objectives could not properly have been re-litigated between the same parties, except on appeal.

In the alternative, Mr Preston submitted that the intervener did have a right to appeal under s 56A, and the appropriate course is for the Court to hear and determine that appeal.

The intervener had been given leave to be represented, give evidence and make submissions "as if a party to the proceedings". In Mr Preston's submission, although the right of appeal under s 56A is conferred only upon "a party" to the proceedings, the expression "party" is capable of being interpreted as including a person who is granted leave to be represented "as if a party", and such an interpretation would be consistent with the object of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") to provide for public participation in the planning process.

In response to the primary submission of the intervener, Mr Rigg, appearing for ADI, submitted that an appeal under s 56A is the appropriate vehicle for determining the question of whether or not the Commissioner had jurisdiction to hear and determine the proceedings, but, in this case, that vehicle is not available to the intervener, because she is not a party to the proceedings.

In any event, so Mr Rigg submitted, the decision of the Commissioner finally and conclusively disposed of the proceedings, and it has been perfected by a final order signed by the Registrar. There is no statutory or inherent power for the Court to vary that order other than by an appeal. Relying upon Bailey v Marinoff (1971) 125 CLR 529 and Gamser v Nominal Defendant (1976) 1 NSWLR 520, Mr Rigg submitted that the order disposing of the proceedings is beyond recall, and there is no inherent power to reopen the proceedings. Furthermore, the power of the Court to set aside or vary an order as contained in pt 15 r 9 of the Land and Environment Court Rules 1996 ("the Court Rules") is limited to specific circumstances, none of which apply in this case.

Mr Rigg also submitted that the delay of the intervener to take any step to interfere with the jurisdiction of the Commissioner was fatal to the notice of motion. He pointed to the fact that the intervener actively participated in the hearing before the Commissioner over the three days during which the hearing took place, and she participated in a manner which was intended to persuade the Commissioner to dismiss the appeal and refuse the grant of development consent. He pointed also to the fact that the present notice of motion was brought by the intervener more than two months after the Commissioner had handed down his decision. In this connection, Mr Rigg drew an analogy to the provisions of s 68 of the Court Act, which provide that the Court shall not set aside any proceedings on the basis of a failure to comply with the requirements of the Court Act or the Court Rules unless the application is made within a reasonable time.

Lastly, Mr Rigg submitted that my dismissal of the application for consent orders did not render me part-heard in the proceedings. That dismissal did not finally dispose of the rights of the parties and it was interlocutory only. There was also no issue estoppel.

As to the intervener's alternative submission, Mr Rigg submitted that the right to appeal under s 56A from the decision of a commissioner is confined to "[a] party to proceedings". The intervener is not a party to the proceedings.

The orders which the intervener seeks are founded upon her principal claim that the decision of the Commissioner was made without jurisdiction and is therefore a nullity. For the purpose of determining this principal claim, I am prepared to proceed on the basis that this Court has a power, inherent or implied, to correct a fundamental irregularity such as an order made without jurisdiction. The crucial question which arises in such a claim is whether is has been established that the Commissioner's order was made without jurisdiction, and it is only if it has been so established that questions of the Court's power to remedy the defect arise. It is for this reason that I put aside for the moment the question of the Court's power, and proceed to determine at the outset if there was a lack of jurisdiction.

Mr Preston's argument in this regard turns upon his contention that, in the consent order hearing, I embarked upon the hearing of the class 1 appeal, and accordingly that I was part-heard in the proceedings, which would preclude me from delegating the hearing of the proceedings to a commissioner within the powers conferred upon me as Chief Judge by s 36 of the Court Act. In my opinion, this contention misconceives the nature of the consent order hearing before me.

The parties to the proceedings, that is, the council and ADI, made an application for orders to be made by consent. Such an application falls to be determined in accordance with this Court's practice, which is relevantly set out in par 9(b) of Practice Direction 1996 as follows: 9(b) When there is agreement prior to the commencement of hearing or after mediation, in planning and building appeals, the Court will usually expect a consent authority to give effect to the agreement by itself granting consent or approval.

However, any applications for consent orders in all such matters will be listed before the Duty Judge for approval. The parties will be required to present such evidence as is necessary to allow the Duty Judge to determine whether it is appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account.

The Practice Direction makes it clear that the hearing before the Court was concerned with a particular type of application, namely, an application for a consent order, and the Court's duty in regard to such an application is to "… determine whether it is appropriate to grant the consent…having regard to the whole of the relevant circumstances …". One expressly relevant circumstance is "… any objection by any person …". 21. The consent order judgment makes it clear that the intervener's objection was considered in light of the terms of the Practice Direction. The evidence which was adduced was directed to the "relevant circumstances" and, in particular, the three issues raised by the intervener's objection. I determined two of those issues in the intervener's favour and accordingly, I declined to make the consent orders, but I did not dispose of the proceedings by either granting or refusing development consent. Rather, the proceedings were stood over for further disposition, and, since the proceedings were a class 1 merit appeal, that meant it was necessary for a full hearing on the merits. Having regard to these matters, I conclude that I was not part-heard in the proceedings.

A contrary finding would mean that all applications for consent orders heard and refused by the Duty Judge would render those proceedings part-heard by the Duty Judge. This is directly contrary to the plain effect of par 9(b) of the Practice Direction. It is worth noting that consent orders in planning and building appeals are quite different in effect to consent orders in proceedings between private litigants. That is because the Court in such appeals stands in the shoes of the council (s 38(2) of the Court Act) and where consent orders are sought it disposes of the proceedings by granting a development consent rather than by simply giving effect to an agreement reached between the parties. The obvious intent of par 9(b) in these circumstances is to make it plain that the Court, on an application for consent orders, will consider all relevant circumstances.

Accordingly, the proceedings remained as pending proceedings, and I was entitled, in the exercise of my power as Chief Judge under s 36(1)(a) of the Court Act, to direct that the proceedings be heard and disposed of by a commissioner. For this reason, Commissioner Bly was properly seised of jurisdiction to dispose of the proceedings, and his decision to determine the development application by the grant of development consent was made within jurisdiction.

It is not necessary, therefore, to determine whether this Court has power to correct an order made without jurisdiction. The settled principle is that an order, once perfected by formal entry, is beyond recall (Bailey v Marinoff (1971) 125 CLR 529 at 530). There are exceptions to that principle, such as cases of fraud, formal error or denial of procedural fairness (Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28) and, in Luka v Lake Macquarie City Council (NSWLEC, 23 June 1997, unreported) Bignold J held that if an order was made without jurisdiction, that would constitute a defect sufficient to entitle the person affected by the order to have it set aside ex debito justitiae. Even if there is a power to set aside a decision made without jurisdiction, there is also a question as to whether this Court, as a statutory court of limited jurisdiction, is invested with such a power under an inherent or an implied jurisdiction (DJL v Central Authority (2000) 170 ALR 659). But none of these questions are presently relevant having regard to my finding that there was no lack of jurisdiction in the order which the Commissioner made. If I was wrong in that finding, and if it was the case that the Court has no power, inherent or implied, to remedy the defect, then there would also be a question as to whether the only proper forum in which to challenge the lack of jurisdiction is a properly constituted appeal under s 56A of the Court Act. It is not necessary to resolve these questions, and I expressly refrain from doing so.

The conclusion I have reached is not, however, the end of the matter. In the consent order judgment, I determined that the proposed development was inconsistent with some of the objectives of the relevant zone. A finding of that nature would have the effect, in terms of the relevant local environmental plan, that the council (and the Court on appeal) would not be empowered to grant development consent in respect of the proposed development. The Commissioner, however, came to a contrary decision regarding the zone objectives, and, on the evidence before him, formed the opinion that the proposed development was consistent with the zone objectives (see pars 23 - 48 of the Commissioner's judgment).

In those circumstances, Mr Preston argued that the principle of issue estoppel operated to prevent the parties from re-litigating the question of inconsistency with the zone objectives. Issue estoppel is a principle of law that a judicial determination involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties: Blair v Curran (1939) 62 CLR 464 at 531. It arises where there has been a determination in a judicial manner by a court or tribunal which has authority to decide the matter, and where there is an identity of issue and an identity of parties. Mr Preston contended that all those elements which would found issue estoppel apply in this case.

It appears from par 9 of the Commissioner's judgment, that the question of issue estoppel was raised at the hearing before him, but that he accepted the submission of counsel for the council, Mr Howard (which was supported by Mr Rigg, appearing for ADI) that the consent order judgment was interlocutory and there was no issue estoppel.

There is a difficulty in raising issue estoppel at this time. It could only now be raised in a properly constituted appeal from the Commissioner's decision under s 56A of the Court Act, based upon the ground that the Commissioner had erred in law in permitting the parties to re-litigate the issue of consistency with the zone objectives in the face of my earlier determination of that issue. However, for the reasons which follow, I have concluded that there is no such s 56A appeal presently available, because the intervener, who has sought to appeal under s 56A, is not empowered to do so, as she is not a party to the proceedings. Hence, in accordance with s 56 of the Court Act, the Commissioner's decision remains final and conclusive.

The intervener has, by notice of motion, attempted to institute an appeal against the Commissioner's decision under s 56A of the Court Act. The question which arises is whether such an appeal is competent, given the limited leave granted to the intervener to participate in the proceedings.

In Sydney Legacy Appeals Fund v Tanna (1980) 48 LGRA 98, a question had arisen as to whether a person who had objected to a proposed development was entitled to appeal from the decision of Local Government Appeals Tribunal to the Supreme Court. Reynolds JA said at p 104: It is trite to say that there is no common law right of appeal, particularly in respect of statutory tribunals and the right to appeal must be found in the terms of a statute. It is a matter for the legislature to specify who shall be given any right of appeal and to what extent.

In the case of an appeal from a decision of a commissioner, the relevant statutory provision is s 56A of the Court Act, which relevantly provides as follows: 56A(1) A party to proceedings in Class 1 … of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

The question, then, is whether the intervener is "[a] party to proceedings in Class 1". It will be recalled from the facts I have outlined in par 3 that she was given leave "to be represented, give evidence and make submissions as if a party to the proceedings". Furthermore, the court file records that the grant of leave was made "noting that the evidence she will give will be her own and not expert evidence …".

There is no issue that the grant of leave was made pursuant to s 38(2) of the Court Act, which empowers the Court in a class 1 appeal to "… inform itself on any matter in such manner as it thinks appropriate". It is also common ground that no application was made by the intervener for formal joinder as a party pursuant to pt 8 r 8 of the Supreme Court Rules 1970 (which applies in this Court by virtue of pt 6 r 1 of the Court Rules). Nor is there any question of the intervener having a third party right of appeal under the EP&A Act, because the proposed development is not designated development under that Act.

The power conferred on the Court under s 38(2) of the Court Act has been utilised to permit the views of objectors to be put to the Court independently of the council but without their formal joinder as parties to the relevant class 1 appeal. That is the basis upon which objectors were given leave in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313, which has been followed numerous times in this Court. Leave of that kind, however, has not been regarded as conferring upon an objector the status of a party to the proceedings. Thus, for example, in Ziatabari v Ku-Ring-Gai Council [1999] NSWLEC 139, in relation to an objector who sought leave to be represented upon a basis similar to that conferred on the intervener in this case, Bignold J at par 16 expressed the view that a grant of leave pursuant to s 38 would not render the objector in that case a party to the litigation.

I would hold, in conformity with the authorities I have referred to, that the grant of leave to the intervener under s 38 of the Court Act has not conferred upon her the status of a party to the proceedings which would entitle her to bring an appeal under s 56A.

Mr Preston has contended the term "party" in s 56A is capable of different interpretations, and it would not unduly strain the meaning of that term to hold that it included a person granted leave to be represented "as if a party", taking into account, in particular, that an appeal under s 56A is an internal appeal, in the same proceedings with the same plaint number. I reject this contention. It seems to me that the plain meaning of the expression "as if a party" is that the person in question is not a party but is to be invested with certain qualities which reside in a person who is in truth "a party".

Mr Preston also submitted that regarding the intervener as a party for the purpose of s 56A would meet the objects specified in s 5 of the EP&A Act, and, in particular, the object of providing "increased opportunity for public involvement and participation in environmental planning and assessment" - s 5(c). I recognise, as did Bignold J in Jenkins v Leichhardt Council (2000) 108 LGERA 426 at par 23, "the public interest that is served and promoted by the opportunity for citizen and public participation in all aspects of the planning process". But in my opinion that interest is fully served by permitting a limited right of representation in a class 1 appeal pursuant to s 38(2), especially where, as in this case, the intervener has no statutory right to participate other than to make an objection which the council would be bound to take into account under s 79C of the EP&A Act in determining the development application.

For all these reasons, I have concluded that the intervener's notice of motion seeking to appeal under s 56A should be dismissed.

The decision I have reached means, of course, that the intervener has failed in her endeavour to have the Commissioner's decision set aside and that she is precluded from an opportunity to persuade the Court in a further hearing that development consent should be refused. But, in fairness, she has had more than ample opportunity to put her point of view. She was represented and participated in the consent order hearing, and she participated without representation in the merits hearing over three days before the Commissioner. She gave evidence to the Court and she tendered documents. Justice in proceedings such as these has more than one face - the applicant and the council are also entitled to be dealt with justly and fairly. I am satisfied that justice and fairness has been provided to both the intervener and ADI by the outcome of these proceedings. The intervener has had a full opportunity of putting her objection to the proposed developmentally, and ADI has had its appeal finally and conclusively determined.

No submissions were made concerning costs, and it is therefore appropriate that the question of costs be reserved.

(1) The intervener's notice of motion returnable instanter on 25 May 2001 is dismissed. (2) The intervener's notice of motion dated 17 April 2001 seeking to appeal under s 56A of the Land and Environment Court Act 1979 is dismissed.

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