Land and Environment Court (NSW)|1997-04-01|Before: Judge Lloyd J, Parties Applicant J, Lloyd J

The applicant is the owner of land comprising 3, 5 and 7 Norfolk Road, Epping (the 'subject land'). On or about 15 May 1996 the applicant's surveyor, Craig & Rhodes Pty Ltd, applied to the respondent for development consent under the Environmental Planning & Assessment Act 1979 for the re-subdivision of the land into five lots and for subdivision approval under the Local Government Act 1919. A combined consent to the development application and the subdivision application was issued by the respondent on 17 October 1996 subject to a condition ('Condition 8') concerning the removal and replanting of trees after the boundary is determined by survey and the submission of a landscape plan. The consent was signed by Mr R W Beers, a Senior Town Planner in the Planning Division of the respondent, who was purportedly acting on the basis of a delegation granted to him under the Local Government Act 1993.

On 24 October 1996 the respondent wrote to the applicant's surveyors informing them that the approval was "null and void". The letter states that the consent was issued under delegation contrary (but inadvertently) to the respondent's "adopted procedure" and that the application will now be referred to a meeting of the respondent for determination. The letter concludes: "Any inconvenience is regretted."

The applicant's solicitors wrote to the respondent on 31 October 1996 asserting that the respondent had no power to rescind its approval of 17 October 1996 and that the approval was consequently valid and subsisting. Notwithstanding this letter, the respondent referred the applicant's development application and subdivision application to a meeting of the respondent for determination on 6 November 1996 at which meeting the respondent resolved that the development application and subdivision application be refused.

On or about 21 November 1996 the applicant submitted a survey plan to the respondent relating to the location of trees on its land. On 5 December 1996 the applicant further submitted a landscape plan intended to meet the requirements of Condition 8 of the approval issued on 17 October 1996. Given its purported withdrawal of that approval, the respondent did not accept this landscape plan as satisfactory for the purposes of the condition, since it regarded the consent as having been refused.

As a result the applicant initiated the present proceedings claiming the relief to which I have referred.

As I understand the arguments, the following issues emerged:

Whether the development consent and subdivision approval issued by the respondent on 17 October 1996 is invalid due to the fact that it was issued by a person who was acting beyond the terms of the delegation granted to him;

Whether the respondent's purported withdrawal of the approval is valid as a result of the above;

Whether the Court should make an order with respect to the sufficiency of the applicant's landscape plan as submitted to the respondent on 5 December 1996.

Issue 1: The Validity of the Development Consent and Subdivision Approval

It is necessary to refer to some additional facts. The respondent had, on 4 September 1996, resolved pursuant to ss 377 and 381 of the Local Government Act 1993, to delegate to the General Manager the power to exercise all the functions, powers, duties and authorities, conferred upon the respondent pursuant to the Local Government Act, the Environmental Planning & Assessment Act 1979, all other Acts under which the respondent has functions, powers, duties and authorities and all regulations, by-laws, rules and the like made by or under any of the foregoing Acts. However, by the same resolution the delegation was subject to any resolution made from time to time by the respondent and it was not to extend, inter alia, to items in respect of which the mayor or a councillor specifically request the General Manager in writing to place before a meeting of the respondent council for determination by it at such meeting.

On 13 September 1996 the General Manager, by an instrument of sub-delegation pursuant to s 378 of the Local Government Act, delegated to Mr R W Beers, being the Manager, Assessments Branch of the respondent, the functions, powers, duties and authorities in respect of the Assessment Branch's operations under the abovementioned Acts and Regulations. The instrument of sub-delegation was subject to any resolution, policy, code, procedure or budget made from time to time by the respondent.

Since 1993 the respondent had adopted a policy and procedure in relation to the approval of development applications pursuant to delegated authority by delegates of the General Manager of the Council. This policy was known by the councillors and staff of the respondent as the "red sticker" policy. The red sticker policy and procedure adopted by the respondent enabled any councillor to "call up" any development or building application which might otherwise be dealt with by a delegate, to be considered by a meeting of the full Council. The red sticker policy involved a councillor requesting that a red sticker be placed on the file relating to the particular application with which he or she was concerned. The respondent's administrative and assessment staff were aware that once a red sticker had been placed on the file the application was one to be considered by a meeting of the full Council and was not to be dealt with by delegation unless the particular concerns of the Councillor or Councillors could be resolved.

On or about 28 September 1996 a Councillor had requested a member of the respondent's staff to place a red sticker on the subject development application. The Councillor had expressed concerns relating, inter alia, to the overall development of the subject site, tree removal, and the principles of biodiversity. Apparently, neither a red sticker nor the Councillor's concerns were brought to the notice of the officer who reported on the application and who recommended it for approval. Neither were they brought to the notice of Mr Beers who endorsed the recommendation for approval and who formally signed and issued the notice of determination pursuant to his delegated authority from the General Manager. It seems that the red sticker was not placed on the relevant file as requested by the Councillor, but merely left on of the reporting officer's chair.

Mr R K Graham, who appeared for the respondent, submitted that there was no effective development consent or subdivision approval issued on 17 October 1996 by the respondent. This was due to a lack of power on the part of Mr Beers to issue the Notice of Determination. Mr Graham's submission was founded on the fact that the delegation of power to Mr Beers to determine the development application and subdivision application was limited by the terms of the delegation. He referred to s 49(3) of the Interpretation Act 1979, which states that a delegated function may be exercised only in accordance with any condition to which the delegation is subject.

Mr A D Ayling, who appeared for the applicant, submitted that the existence of the red sticker policy did not, in this case, amount to a request to the general manager to have the application placed before a meeting of the respondent for determination. The request of the Councillor to place the red sticker on the relevant file was made, in this case, to a member of the respondent's staff and not to the General Manager and it amounted to no more than a precautionary note requiring the particular concerns of the Councillor to be taken into consideration in the assessment of the application. Secondly, Mr Ayling submitted that an approval which it was otherwise lawful for the respondent to give, once formally communicated, cannot be subsequently withdrawn. He referred in this context to Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740; (1973) 28 LGRA 218. Thirdly, Mr Ayling submitted that the respondent's failure to observe its own policies or internal procedures could not vitiate the approval or consent which subsequently issued. In this context he referred to Brickworks Limited v Warringah Shire Council [1963] HCA 18; (1993) 108 CLR 568 and to Pearson v Leichhardt Municipal Council (No 40288/96, 18 March 1997, unreported). Finally, and in the alternative, Mr Ayling submitted that even if the approval issued by Mr Beers was found to be a nullity, the respondent was estopped from asserting that it had not granted consent and he refererred to Vanden Pty Limited v Blue Mountains City Council (1992) 77 LGRA 16, at 19.

I do not agree with Mr Ayling's first submission. The red sticker policy was one which had been in place since 1993 and was apparently well known both to the councillors and to the respondent's staff. Its operative effect was equally well known and accordingly, in my view, it amounted to the exception to the delegated power to which I have referred. However, I have come to the view that the applicant's second and third submissions are correct. The notice of determination signed by Mr Beers on 17 October 1996 was regular on its face. The respondent, by its officer, Mr Beers, had said that it had consented. There is nothing on the face of the document to suggest that Mr Beers did not have the delegated authority to issue it. Unless the consent is one which the respondent itself did not have the power to grant, then it must be regarded as a consent upon which the applicant could rely (Brickworks Limited v Warringah Shire Council, at 577-579). Such a consent, in the absence of express statutory power cannot be subsequently altered or withdrawn (In re 56 Denton Road, Twickenham, (1953)1 Ch 51, at 56-57; Ku-ring-gai Municipal Council v Little (1970) 18 LGRA 380, 91 WN (NSW) 434; Northcott Pike & Associates Pty Limited v District Council of Berri (1984) 55 LGRA 119, at 123-125). The failure by the respondent to observe its own internal procedures, or an internal error within the administration of the respondent, does not enable it to disavow the approval, unless that failure is of a fundamentally serious nature (Ex parte Forssberg; In re Warringah Shire Council (1927) 8 LGR (NSW) 74 at 77-78; Everall v Ku-ring-gai Municipal Council (1991) 72 LGERA 369; Pearson v Leichhardt Municipal Council).

An important aspect of the matter is that an instrument of consent operates in rem. It is not personal to an applicant. It inures for the benefit of subsequent owners. It is, in some respects, equivalent to a document of title (Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321, at 324; Parramatta City Council v Shell Co of Australia Limited (1972) 2 NSWLR 632 at 637, 27 LGRA 102, per Hope JA with whom Jacobs and Manning JJA agreed). It is a consent to the world at large in relation to the land which is its subject (Eaton & Sons Pty Limited v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270, at 293, per Stephen J). This is further reinforced by the fact that in many cases a consent will immediately enhance the value of the land in question, even though the work itself may not have been commenced (Northcott Pike & Associates Pty Limited v District Council of Berri, at 124).

None of the abovementioned principles would apply if, in granting its consent, the respondent acted in breach of some statute. For example, if it had failed to take into consideration a relevant head of consideration under s 90(1) of the Environmental Planning & Assessment Act then the respondent would clearly have acted in breach of a statutory duty. However, that is not the case here.

Given these findings it is not necessary for me to consider the question of estoppel.

Issue 2: Whether the Respondent's purported withdrawal of the Development Consent and Subdivision Approval was Valid

A valid consent communicated to the applicant cannot, in the absence of statutory authority, be revoked or recalled by the consent authority. The decision so made and communicated is irrevocable (Shanahan v Strathfield Municipal Council; Ku-ring-gai Municipal Council v Little, at 385). In the present case I have found that the notice of determination which was issued was not vitiated by the want of authority on the part of Mr Beers who signed it and it was a determination which was within the power of the respondent. It follows that the purported withdrawal of the consent and approval issued on 17 October 1996 was invalid and ineffective.

The respondent had failed to consider the sufficiency of the applicant's landscape plan solely because of its belief that the combined development consent and subdivision approval was a nullity. Mr Graham indicated that if the court deemed the approval to be valid and subsisting, the respondent would duly proceed to consider the landscape plan. Accordingly, it is not necessary for me to make any order relating to the sufficiency of the plan or whether it meets the requirements of Condition 8 of the consent. Nevertheless, I reserve liberty to apply in the event of any difficulty arising therefrom.

The applicant seeks indemnity costs. However, there is nothing in the facts of this case which are out of the ordinary or which suggest that the usual practice as to costs should not be followed.

(1) Declare that the development consent, No 201/96, and subdivision application, No 7047, issued by the respondent to the applicant's surveyors, Craig and Rhodes Pty Limited, on 17 October 1996, for the subdivision of Nos 3, 5 and 7 Norfolk Road, Epping, is valid and subsisting according to its terms;

(2) Declare that the decision of the respondent on 6 November 1996 purporting to refuse development application No 201/96 and subdivision application No 7047 is invalid;

(3) The respondent is to pay the applicant's costs;

I certify that this and the 9 preceding pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Lloyd.

Local Government Act 1919

Interpretation Act 1979

J R HUNT REAL ESTATE PTY LTD v. HORNSBY SHIRE COUNCIL No. 40275 of 1996 [1997] NSWLEC 34 (1 April 1997)

Applicant v HORNSBY SHIRE COUNCIL

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J R HUNT REAL ESTATE PTY LTD v. HORNSBY SHIRE COUNCIL No. 40275 of 1996 [1997] NSWLEC 34 (1 April 1997)