Association for Berowra Creek Inc v The Minister for Planning & Anor

Designated development? 24 The applicant submits that the marina development application sought consent for designated development, but the requirements of the EP&A Act relating to designated development were not complied with. Hence, it is submitted that the marina development application was invalid and so, too, is the marina consent invalid. 25 Section 77A of the EP&A Act states: "Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations". If a development application is in respect of designated development it must be accompanied by an environmental impact statement (s 78A(8)(a) of the EP&A Act), it must be publicly exhibited and any person may inspect the development application and accompanying information and make submissions to the consent authority (ss 79(1), 79(2) and 79(6) of the EP&A Act). Importantly, a person who has made a submission by way of objection to a development application for designated development has a right of appeal to the Court against the grant of consent (s 98(1) of the EP&A Act). 26 Pursuant to s 77A of the EP&A Act, cl 4(1) of the EP&A Regulation states: "Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule". 27 Part 1 of Schedule 3 to the EP&A Regulation lists a large number of matters as designated development. The list includes: 23 Marinas or other related land and water shoreline facilities (1) Marinas or other related land or water shoreline facilities that moor, park or store vessels (excluding rowing boats, dinghies or other small craft) at fixed or floating berths, at freestanding moorings, alongside jetties or pontoons, within dry storage stacks or on cradles on hardstand areas: (a) that have an intended capacity of 15 or more vessels having a length of 20 metres or more, or (b) that have an intended capacity of 30 or more vessels of any length and: (i) are located in non-tidal waters, or within 100 metres of a wetland or aquatic reserve, or (ii) require the construction of a groyne or annual maintenance dredging, or (iii) the ratio of car park spaces to vessels is less than 0.5:1, or (c) that have an intended capacity of 80 or more vessels of any size. 28 Part 2 of Sch 3 is headed "Are alterations or additions designated development?" Part 2 has only two clauses (cll 35 and 36). Clause 35 is as follows:: Is there a significant increase in the environmental impacts of the total development? 35. Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development. 29 Clause 36 sets out a number of factors that the consent authority is required to consider in forming its opinion as to whether or not development is designated development. 30 The parties appear to accept that, as a consequence of the marina development, the number of berths will be at least 79 (including the charter ferry berth). The first issue between them is whether the 15 hire boats accommodated in the hire boat area should be counted. The applicant submits that cl 35 requires that they be counted; the respondents submit that they should not. I have noted above in par [16] the comment in the assessment report prepared by Mr Kitto. 31 In my opinion, the applicant's submission is correct. I have come to this conclusion for the following reasons. The introductory words of cl 23(1) (set out in par [27] above) define "vessels" as excluding rowing boats, dinghies and other small craft. This would have the effect of excluding the hire boats. The word "vessels" as thus defined governs the meaning of the word in paras (a), (b) and (c) of the clause, which follow. However, par (c) operates as an exception by reference to vessels "of any size". If par (c) were not intended to operate as an exception, then it would have been sufficient for par (c) to simply state: "…an intended capacity of 80 or more vessels" - it would have stopped there. In another way, if the words "of any size" were not there, then the limit of 80 vessels would be excusive of small craft. The addition of the words "of any size" operates as an exception to the words "excluding rowing boats, dinghies and or other small craft". The words "of any size" can have no other meaning. It is suggested by the respondents that the additional words in par (c), "of any size", are intended to qualify or operate as an exception to the words in par (a), "having a length of 20 metres or more". In my opinion, however, if that was the intention then the qualifying words in par (c) would have been "of any length", rather than "of any size". The different wording between par (a) and par (c) suggests a different meaning, being that to which I have come. It is, therefore, necessary to count the 15 boats in the hire boat area. That brings the total number of vessels to 94. 32 That is not the end of the matter. There is also the question of boats moored at the fuel wharf as shown on the site plan, described as "the fuel pontoon" in condition 12(c). I am of the opinion that the number of boats that can be accommodated at the fuel wharf (or fuel pontoon), which is said in the evidence to number four, should be counted. I have come to this view for the following reasons. Clause 23(1) of the Schedule refers to "facilities that moor, park or store vessels". These are ordinary English words. The word "park" in particular, is defined in the Macquarie Dictionary (3rd ed) as meaning (inter alia) "5. to put or leave (a car, etc) for a time in a particular place… 9. to park a car, bicycle etc ". This is precisely what happens when vessels use the fuel wharf. They park there. The word "park" is not one which is ordinarily associated with boats. The insertion of the word "park" in cl 23(1) suggests something other than "moor" or "store", the former having a particular connection with boats. The respondents point to the fact that boats accommodated (to use a neutral term) at the fuel wharf will only be there on a temporary basis - condition 12(c) limits its use to "short stay vessels" - defined as "vessels that are going to use facilities at the marina … for short periods of time (up to two hours)". Paragraph (c) of cl 23(1) refers, however, to facilities that have an intended "capacity" of 80 or more vessels. The primary meaning of the word "capacity" is "the power of receiving or containing" (Macquarie Dictionary). The fuel wharf thus has a capacity for four vessels. The counting of vessels at the fuel wharf is also consistent with the apparent purpose of cl 23. Although condition 12(c) limits the use of the fuel wharf to short stay vessels, that is, for up to two hours, there can be a succession of short stay vessels, meaning that there is a capacity for the fuel wharf to be occupied by up to four vessels for most of the day. It is thus necessary to count the capacity of the fuel wharf to accommodate four vessels. This brings the total number of vessels within the meaning of cl 23(1)(c) of the EP&A Regulation to 98. Even if I am wrong to include the 15 hire boats, the inclusions of the four vessels that can be accommodated at the fuel wharf would bring the total up to 83. 33 I note that the site plan also includes an area for boats marked "brokerage area". I have not had regard to this area for the purpose of determining whether the proposed development within is designated development within the meaning of cl 23(1). I may be wrong in disregarding this area, but it is not necessary for me to consider it since the development in any event qualifies as designated development. Were clauses 35 and 36 of Schedule 3 considered? 34 I have noted in par [26] above that cl 4(1) of the EP&A Regulation provides that development in Pt 1 of Sch 3 (which includes cl 23) is declared to be designated development unless it is declared not to be designated development by a provision of Pt 2 or Pt 3 of that Schedule. I have also set out in par [28] above the terms of cl 35 within Pt 2 of the Schedule. (Part 3 of the Schedule is not presently relevant.) 35 It is clear from the evidence that the Minister did not give any consideration to these provisions. The assessment report on the development application prepared by Mr Kitto states that the proposal would not be designated development (because it does not come within the criteria prescribed by cl 23, which is set out in full in the report). There was thus no occasion for either Mr Kitto or the Minister to consider cll 35 and 36. Moreover, as noted in par [15] above, the Ministerial submission prepared by Mr Haddad contains an express reference to, and consideration of, cl 35 in relation to two other marinas. The specific references to the two other marinas and the absence of any reference to the Berowra Waters marina confirms in that context the fact that no consideration thereunder was given to the application of cl 35 to the marina development application. Condition 13 of the marina consent 36 I have set out the terms of condition 13 in par [22] above. The applicant submits that the effect of the condition is to significantly alter the development for which consent was sought and to grant a consent that is neither final nor certain. 37 The development application sought the use of the existing car park within the development for valet parking. By this means it was proposed to increase the existing number of car spaces from 32 to 48, which was to be achieved by "stack parking" implementing a valet parking system operated by marina staff. The development consent, however, limits the marina car park to a maximum of 44 vehicles (condition 12(g)) and imposes condition 13. There is a suggestion in the evidence that the additional parking spaces to which condition 13 relates is parking required by the conditions of the original consent granted by the council on 26 February 1981. This appears to be confirmed by the note at the end of the condition. 38 In Mison v Randwick Municipal Council (1991) 23 NSWLR 734, Priestley JA (Meagher JA concurring) held that if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the development application is made, then the purported consent is not a consent to the application. Priestley JA further held that if the effect of an imposed condition is to leave open the possibility that the development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then there is not a consent to the application. 39 In the same case, Clarke JA (at 739) adopted the point as expressed by Wells J in Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332; 49 LGRA 65 at 68: For this purpose, it is essential to bear in mind that the granting of a consent is an act in law that is final in the disposition of the application: the consent must be either refused, or granted unconditionally, or granted subject to conditions. A condition which imparts to a consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act. A condition so annexed ought to be directed, and directed only, to circumscribing with reasonable particularity, the acts of land use to which the authority or tribunal has given its consent, which would otherwise be unlimited in its generality and effect. 40 Clarke JA (Meagher JA again concurring) went on to hold as follows (Mison, at 740): Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final. 41 In my opinion, condition 13 clearly infringes the principles explained in Mison. The provision of car parking was a major issue - perhaps the major issue. The Ministerial submission prepared by Mr Haddad, to which I have previously referred, describes it as a key issue. According to Mr Haddad: "[t]his is clearly reflected in the submissions, and is obviously the most contentious issue associated with the proposal". It seems that the provision of car parking for the development was fundamental to the question of whether a consent should be granted at all. Condition 13 leaves for later decision an important aspect of the development; and a decision on that aspect could alter the development in a fundamental respect, namely, whether the car parking to which the condition refers should be provided adjacent to the marina or at a remote location with a shuttle bus service, provided the Minister so approves. Moreover, the latter proviso imports to the consent a quality which ceases to be final. And the possibility of the provision of car parking at a remote location seems to me to be significantly different from the provision of parking adjacent to the development. 42 Mr T S Hale SC (with him Mr S W Balafoutis), appearing for the second respondent, relies upon s 80A(2) and (3) of the EP&A Act to authorise the condition. These sub-ss state: (2) Ancillary aspects of development . A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority. (3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect. 43 These provisions do not seem to authorise a condition such as condition 13 in the present case. Sub-section (2) refers to a specified aspect of the development that is ancillary to the core purpose, to be carried out to the satisfaction (determined in accordance with the regulations) of the consent authority or a person specified by the consent authority. Firstly, the provision of car parking in the present case is fundamental to the whole development and may be described as part of the core purpose. Secondly, the consent of the Minister, referred to in the condition, is in turn dependent upon whether the applicant obtains consent for another development from another body (or bodies). Thirdly, the "satisfaction" referred to in sub-s (2) must be determined in accordance with the regulations, but my attention has not been drawn to any relevant regulations which would apply. 44 It seems to me that the whole question of the provision of car parking for the development must be completely and finally determined before a valid development consent can be granted. Is condition 13 severable? 45 The test of severability has been variously expressed. In Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130, Holland J held that a condition of development consent requiring a monetary contribution to be paid to the council towards the provision of public car parking was invalid. His Honour then considered whether the condition in question was severable and the consent should be declared to be valid with the void condition excised. His Honour concluded (at 144): In my opinion, the correct view to take in the present case is that the condition objected to was a fundamental element of the approval which the council gave, and that in dealing with the application the council proceeded on a false basis, either as to its powers to impose the condition, or as to its expectation that the applicant would voluntarily pay the contribution required. I think it is clear that the council has never considered or approved the application simply on the basis that no car-parking space was to be provided and no contribution in lieu thereof was to be made by the applicant. On this view the condition in question cannot, in my opinion, be struck out as severable and its invalidity renders the whole approval invalid. To borrow the language of Lord Morris in Kingsway Investments (Kent) Ltd v. Kent County Council [1971] A.C. 72, at p. 102.] the condition was part "of the structure of the permission so that if the condition is hewn away the permission falls with it". See also Kriticos v. Parramatta City Council [(1971) 21 L.G.R.A. 404, at pp. 408-409.] 46 The reference by Holland J to Lord Morris in Kingsway Investments (Kent) Ltd v Kent County Council is to the following passage from that judgment: There might cases be cases where permission is granted and where some conditions, perhaps unimportant or perhaps incidental, are merely superimposed. In such cases if the conditions are held to be void the permission might be held to endure just as a tree might survive with one or two of its branches pruned or lopped off. It will be otherwise if some condition is seen to be a part, so to speak, of the structure of the permission so that if the condition is hewn away the permission falls away with it. In his judgment in Hall & Co. Ltd . v. Shoreham-by-Sea Urban District Council (1964) 1 W.L.R. 240, 251-252 Willmer L.J. pointed to the contrast between a case in which one or two trivial conditions might be held to be ultra vires (where it would be difficult to justify saying that the whole permission failed) and a case in which conditions are "fundamental to the whole of the planning permission" in which case the planning permission would fail. In the same case Pearson L.J. (as he then was), differentiated, at p.261, between conditions which are "essential, or at least important", and those which are "trivial or at least unimportant". 47 Kingsway Investments was applied by the court of Appeal in Parramatta City Council v Kriticos [1971] 1 NSWLR 140. After referring to the judgment of the House of Lords in Kingsway Investments, including that of Lord Morris, Asprey JA (Holmes JA concurring) said (at 145): I am of the opinion that when the tests to which I have just referred are applied to the conditions attached to the consent here it will be seen that they relate to matters fundamental to the development or, as has been put, to the root of the planning permission itself and restricted the permission applied for. Accordingly, in my opinion, the condition, if it were invalid, would render invalid the consent itself. 48 In Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13, Stein J applied each of the abovementioned cases by asking the questions: what would the council have done if it had known that it could not impose such a condition? Would it have refused the application? His Honour went on to find that where the condition formed an integral part of the approval, it cannot be said that its excision leaves the consent of the same character as before. 49 In MLC Properties v Camden Council (1997) 96 LGERA 52, I followed the judgment of Talbot J in Wechsler v Auburn Council (NSWLEC, 5 March 1997, unreported) in holding that s 32 of the Interpretation Act 1987 applies to a notice of determination of a development application. I also adopted (at 59) what was said by Cole J in Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86. In that case, Cole J after quoting from the judgment of Dixon J in Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 (the Banking case) at 369-371, said (at 101): Provisions such as s 32 are to be approached consistently with the principles of interpretation annunciated by Dixon J in Bank of New South Wales v The Commonwealth. The court is required to have regard to the intention of the legislature, but if it appears that severance of an ultra vires portion of a regulation (or form prescribed by such a regulation) results in the residue operating differently to the manner in which the whole would have operated, then, notwithstanding provisions such as s 32, severance cannot be effected. This is because the residue would operate differently to the apparent intention of the legislature. 50 In the present case I have found that the provision for car parking was an important aspect of the development - it was certainly a major issue. I have noted that is was described by Mr Haddad in his submission for the Minister as a key issue. In my opinion the condition formed "an integral part" of the consent. It was "a fundamental element" of the consent. Without it the whole consent would fail. It was a condition which was "essential or at least important". It was not 'trivial or at least unimportant". In applying the principles explained in above-mentioned cases I am compelled to the view that the condition is not severable and its invalidity means that the whole consent is also invalid. Section 102 of the EP&A Act 51 The respondents submit that s 102 of the EP&A Act, which applies only to development consents granted by the Minister, operates to prevent the Court from making any finding that the consent is invalid. Section 102 is as follows: 102 Non-compliance with certain provisions regarding State significant development (1) This section applies to a development consent granted, or purporting to be granted, by the Minister, before or after the commencement of this section. (2) The only requirements of this Act that are mandatory in connection with the validity of a development consent to which subsection (1) applies are as follows: (a) A requirement that a development application to carry out designated development and its accompanying information be publicly exhibited for the minimum period of time. (b) A requirement that a development application to carry out development, being development, other than designated development, to which some or all of the provisions of sections 84, 85, 86, 87 (1) and 90, as in force immediately before the commencement of this section, applied by virtue of an environmental planning instrument, as referred to in section 30 (4), as then in force, be publicly exhibited for the minimum period of time. (c) A requirement that a development application to carry out advertised development and its accompanying information be publicly exhibited for the minimum period of time prescribed by the regulations. 52 The respondents submit that since the only requirements which are mandatory are those set out in sub-s (2) of s 102 of the EP&A Act, everything else is directory: it is only a non-compliance with the requirements set out in sub-s (2) which could result in the invalidity of the consent. 53 In my opinion, however, s 102 does not operate to protect the Minister's determination in the present case. I have found that the development application is not a valid development application - the development which is sought is designated development and it was not accompanied by the necessary environmental impact statement. There is no development application to which the Minister could grant his consent. Moreover, concepts such as "mandatory" and "directory" are typically used in relation to the procedural requirements of a statute and it is to the procedural requirements of the Act that s 102 is directed. Section 102 cannot apply where the relevant omission amounts to a jurisdictional error. The failure to classify the proposed development as designated development amounts to a jurisdictional error. I am compelled to this conclusion by the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALR 598. In that case, Gaudron and Gummow JJ (McHugh J concurring, Kirby J dissenting and Callinan J not deciding), said (at 606 [51]): There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. 54 The latter statement was repeated by Gaudron and Gummow J (at 607 [53]): "As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all". Hayne J expressed a similar view to that of Gaudron and Gummow JJ (at 625 [153]). 55 Alternatively, it seems to me that s 102 of the EP&A Act may be an attempt to oust, or limit, the supervisory jurisdiction of the Court - a privative clause. It has been consistently held that the privative clauses cannot destroy or oust the jurisdiction of the Court to pronounce on the validity of a decision which is alleged to exceed jurisdiction (R v Hickman; Ex parte Fox & Anor (1945) 70 CLR 598 at 615, and the numerous cases which follow and apply it). As I have noted, the failure to classify the proposed development as designated development is a jurisdictional error. Condition 13 was also imposed without jurisdiction. Section 102 does not in these circumstances prevent the Court from making a declaration of invalidity. Section 25B of the Land and Environment Court Act 1979 56 The respondents submit that the Court should exercise its power under s 25B of the Land and Environment Court Act 1979 ("the Court Act") by suspending the operation of the development consent and allowing the Minister to consider whether to form the opinion described in cl 35 of Sch 3 to the EP&A Regulation. 57 Section 25B of the Court Act is as follows: 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act. 58 The applicant submits that s 25B is not available where the cause of invalidity is jurisdictional error (relying on Glowpace Pty Ltd v South Sydney city Council (2000) 111 LGERA 84 and Minister for Immigration and Multicultural Affairs v Bhardwaj). The respondents dispute this. I do not have to resolve these competing submissions. I am not inclined to exercise the Court's discretion under the section because it would not cure the invalidity flowing by reason of the invalidity of condition 13 of the marina consent (or condition 5 of the car park consent). There does not appear to be any "terms compliance with which would validate the consent" which could be specified in an order under s 25B(1)(b) of the Court Act that would cure the invalidity of condition 13 of the marina consent (or condition 5 of the car park consent) and none have been suggested. Condition 5 of the car park consent 59 I have set out this condition in par [23] above. This condition suffers from the same failings as condition 13 of the marina consent. In particular, a consent which is subject to a condition that it is not to operate until that consent is to be confirmed by a further approval of the consent authority cannot be regarded as final (Mison v Randwick Municipal Council, Designlink International v Baulkham Hills Shire Council (1999) 105 LGERA 299. The condition is invalid. Neither does the condition satisfy any of the tests of severability, discussed in paras [45] to [50] above. The condition goes to the root of the consent. As a consequence the whole consent is also invalid. 60 For the reasons discussed in relation to condition 13 of the marina consent, s 102 of the EP&A Act does not operate to protect the validity of the consent. Moreover, s 102(1) states that the section applies to a development consent granted, or purporting tobe granted or purported to be granted, by the Minister. The effect of condition 5 is that the Minister has neither granted nor purported to grant a consent, so that s 102 could not apply in any event. 61 Neither am I inclined to exercise the Court's discretion under s 25B of the Court Act. The car park consent is clearly connected with the marina consent and since I have declined to exercise the Court's discretion under that section in relation to that consent then I should do likewise with the car park consent. Again, as with the marina consent, it is difficult to determine any "terms compliance with which will validate the consent" which could be specified in an order made under that section; and none have been suggested. Conclusions 62 I have found that the marina development application is an application for designated development (as defined in cl 23 of Sch 3 to EP&A Regulation); the Minister has not formed an opinion under cl 35 of the said Schedule that the marina development would not significantly increase the environmental impacts of the total development; condition 13 of the marina consent is invalid, neither is it severable; condition 5 of the car park consent is invalid, neither is it severable; s 102 of the EP&A Act does not operate to protect the validity of the consents; and it is not appropriate to exercise the Court's discretion under s 25B of the Court Act. 63 Subject to the exercise of the Court's general discretion, it would normally follow that the applicant is entitled to the declaratory relief that is sought. This is particularly so where the proposed development is designated development, which fact gives a right of public participation and objector rights of appeal (ss 79 and 98 of the EP&A Act). It would require unusually powerful considerations to deprive the public and any potential objectors of such statutory rights. The parties have asked, however, that I refrain from determining the question of how the Court's discretion should be exercised and that they be given an opportunity to consider my findings and then call such evidence and make such submissions as they may wish on that question. The parties have leave to approach the Registrar to obtain a date for further hearing on the question of the exercise of the Court's discretion. On such further hearing the parties may, if they wish, bring in short minutes of the final relief they seek. It may also be convenient on such further hearing to hear submissions on costs, which I formally reserve.

I hereby certify that the preceding 63 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.