Anambah Homes Pty Limited v Maitland City Council

16 The Applicant acknowledged that the reasoning applied by the High Court in Plaintiff S157/2002 stands in contrast to that adopted by the Court of Appeal in Sericott v Snowy River Council (1999) 108 LGERA 66 ("Sericott"). In Sericott a majority of the Court of Appeal considered that the protection from challenge under s 104A of the then EP&A Act, now s 101 of the current EP&A Act, was only lifted if the jurisdictional error alleged was manifest. The Applicant argued in the alternative that if Sericott is still the law in New South Wales there is a manifest jurisdictional error in the Stage 18 Consent so that s 101 does not bar this action. In this regard that Applicant argued that in order to ascertain that condition 36 was beyond power reference need only be made to s 94(11) of the EP&A Act and to the relevant contributions plan to confirm that it made no provision for the dedication of Lot 1825 as public land. Further, the Applicant argued that the Council had essentially conceded that condition 36 is beyond power.

The Council's Submissions 17 The Council argued that s 101 bars the Applicant from challenging the validity of condition 36 of the Stage 18 Consent as: (i) it is well settled law that a challenge to the conditions of consent is a challenge to the consent itself and such actions are barred if, as here, a s 101 notice has been published: Woolworths v Bathurst ; (ii) Plaintiff S157/2002 can be distinguished as in that case the High Court was considering the Migration Act 1958 (Cth) and not s 101 of the EP&A Act. Accordingly, the test promulgated in Sericott , namely that the jurisdictional error must be manifest on the face of the consent conditions before an exception to the Hickman principle can be established, remains the applicable law in New South Wales and I am bound to apply this test; and (iii) Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 (" Mitchforce ") makes it clear that the validity of Sericott is not affected by Plaintiff S157/2002 . 18 The Council argued that no manifest error is evident in relation to condition 36 of the Stage 18 Consent, and accordingly, that s 101 of the EP&A Act operates to bar the Applicant's claim. 19 On 19 November 2004 after the hearing in this matter, Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422 ("Pallas Newco") was handed down in the Court of Appeal and the parties made further short written submissions on this decision.

Finding in Relation to Question 2 Argument 1 20 Woolworths v Bathurst is well established authority in this Court for the proposition that a challenge to the conditions of consent is a challenge to a development consent within the terms of s 101 and I do not consider that this decision should be departed from. Accordingly, the Applicant must fail in relation to Argument 1.

Argument 2 21 In Sericott the Court of Appeal held that the Hickman principles applied to s 104A of the EP&A Act so that s 104A did not operate to prevent a challenge on the ground of manifest jurisdictional error being brought outside the time limit specified in the section. 22 In Mitchforce Spigelman CJ indicated that, despite Plaintiff S157/2002, Sericott remains good law and: A privative provision on its proper construction will not protect a 'manifest' defect, in the sense that a decision is not a bona fide attempt to exercise the power; that it does not relate to the subject matter of the legislation and that it is not reasonably capable of reference to the power given to the decision-maker (per Spigelman CJ at [68])

23 In Pallas Newco the Court of Appeal held that the characterisation of development for the purposes of a local environmental plan was a jurisdictional fact and that, accordingly, Londish v Knox Grammar School (1997) 97 LGERA 1 was wrongly decided. Spigelman CJ considered the scope of s 101 in his analysis of whether the relevant provision was a jurisdictional fact. As Pallas Newco did not deal directly with jurisdictional error and s 101, the comments made by Spigelman CJ in relation to s 101, as set out below, are obiter and do not form part of the ratio of the decision. 24 In Pallas Newco Spigelman CJ, with whom Mason P, Sheller JA and Cripps AJA agreed, held at [69] to [85] that the reasoning adopted by the High Court in Plaintiff S157/2002, and the numerous cases which preceded this decision, did not apply to s 101 of the EP&A Act. In this regard Spigelman CJ noted at [74] to [79] that s 101 differs from the provision considered in Plaintiff S157/2002 in that: First, there is a precondition to the operation of s101 that public notice of the granting of a consent is to be given. This precondition does reinforce the operation of the privative clause.

Secondly, there is no absolute bar. On the contrary, s101 permits any form of challenge within a specified time period. Although the time period may be regarded as short, that does not detract from the fact that, unlike Plaintiff S157 and the earlier decisions, there is no complete bar to legal challenge on the grounds of jurisdictional error. … … The third factor which differentiates s101 from the section considered in Plaintiff S157 is that s101 refers to questioning "the validity of the consent". It does not say that "the consent … cannot be questioned". In Plaintiff S157, and the long line of cases which it affirmed, the reference to "decision", or the other words equivalent to the word "consent" in the present case, was not qualified by a word such as "validity".

The word "validity" could refer only to the correctness of the decision made by a consent authority. It could be read down to apply only to errors within jurisdiction. (See, e.g. Ex parte Hulin; Re Gillespie at 33.) If s101 had constituted a complete bar, so that the principle that Parliament does not intend to deny access to the courts was given its full force, then I would have read down "validity" accordingly.

However, the word "validity" in s101, which permits challenge for a discrete period, is, in my opinion, intended to protect decisions from jurisdictional error.

25 Spigelman CJ held at [83] that: I maintain the opinion I expressed in Vanmeld at [143]-[150] that the Hickman principle does apply, even after the expiration of the three month period. This appears to have become the preponderant view. (See Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs & Planning (1996) 90 LGERA 341; Wykanak v Rockdale City Council (1998) 100 LGERA 27; and the majority in this Court in Sericott at [37]-[41] per Beazley JA, with whom Handley JA agreed at [1]; see also Hornsby Shire Council v Vitone Developments at [52]-[58].) 26 It would appear that the majority view expressed by the Court of Appeal in Pallas Newco, albeit obiter, is that the time bar posed by s 101 of the EP&A Act is subject only to the Hickman principles and, in particular here, only to manifest jurisdictional error. If the jurisdictional error in condition 36 is manifest, it can be challenged so that the answer to question 2 would be that this appeal is competent. 27 I am of the view, for the reasons set out above in the Applicant's submissions at par 16, that jurisdictional error is manifest in relation to condition 36 so that the test of manifest jurisdictional error as propounded in Sericott and Mitchforce is met. Accordingly, in my view, the s 101 notice does not operate to bar the Applicant from challenging the validity of condition 36 of the Stage 18 Consent. It follows that condition 36 is void. The question then arises as to whether condition 36 is severable (question 5) 28 At the hearing of this matter the Respondent sought to raise estoppel issues. This was opposed by the Council because of lack of notice that the argument was to be run. The Council considered it would need to put on more evidence if this was to be argued. Before I deal with the issue of severability of condition 36 I need advice from the parties as to whether the estoppel argument is relevant to that issue.

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