Australian Leisure and Hospitality Group Pty Ltd v Manly Council

Land and Environment Court (NSW)|2009-07-01|Before: Preston CJ

The application to modify condition 50 of Development Consent 387/03 of the development consent [sic] granted by the Land and Environment Court on 24 June 2005 for alterations and additions to the New Brighton Hotel at 71 The Corso, Manly is approved. The proposed development is approved subject to the conditions in Annexure A.

The application under s 125 of the Roads Act 1993 is subject to conditions in Annexure B.

51 However, the orders the commissioner made on 10 July 2009 were: "1. The appeal is upheld.

The application to modify the approval granted by the Land and Environment Court on 24 June 2005 for alterations and additions to the New Brighton Hotel at 71 The Corso, Manly is approved subject to the conditions in Annexure A.

The exhibits are returned." 52 No separate order was made, as had been foreshadowed in paragraph 41 of the judgment, that the application under s 125 of the Roads Act be approved subject to the conditions in Annexure B. Rather, approval under the Roads Act was purportedly granted by means of condition 50(ii) of the development consent (the conditions were in Annexure A to the orders). Condition 50 (ii) stated: "(ii) Approval is granted under Section 125 of the Roads Act 1993 (NSW) to use the footway adjacent to the subject premises for restaurant purposes for a period of two (2) years, subject to the conditions and the approval annexed hereto and marked 'Annexure B'." 53 Annexure B purports to be an approval under s 125 of the Roads Act subject to over 100 conditions. 54 There are at least two problems with this approach. First, approval under s 125 of the Roads Act is purported to be granted by way of imposition of a condition of development consent under the EPA Act. Evidently, there can be no power to grant an approval under one statute, the Roads Act, by way of imposition of a condition on an approval granted under another statute, the EPA Act. The commissioner never addressed this issue of power in the judgment. Secondly, the conditions in Annexure B, although purportedly conditions of approval under s 125 of the Roads Act, are incorporated by reference in condition 50(ii) to be conditions of the development consent. Again, nowhere in the judgment does the commissioner address the source of power to impose, or the appropriateness of imposing, each of the conditions in Annexure B as conditions of development consent. This would involve analysing the source of power to impose such conditions on an approval of a modification application under s 96(1), (1A) or (2) of the EPA Act. 55 The orders made by the commissioner on 10 July 2009 included not only the two subparagraphs of condition 50 discussed in the judgment, namely (ii) and (iv), but also an additional subparagraph (v) requiring "compliance with the conditions in Attachment 1." Attachment 1 added 14 new conditions regulating the use of the outdoor eating area. The commissioner's judgment did not discuss these conditions, including analysing the source of power to impose such conditions on an approval of the modification application. Attachment 1 does refer to a number of conditions that state that they have been "deleted". These deleted conditions were referred to by the commissioner in paragraphs 21-24 of the judgment. However, there is no discussion of the conditions that were not deleted and were imposed.

The orders are subsequently corrected 56 Subsequent to the commissioner making the orders on 10 July 2009, ALH applied to the Court by notice of motion dated 25 September 2009, purportedly under Part 36 r 36.17 of the Uniform Civil Procedure Rules 2005 seeking to amend condition 1 of the development consent granted by the Court on 24 June 2005 to change the plan references and dates. The commissioner who determined the modification application did not change condition 1 of the development consent at all. Accordingly, there was no clerical mistake or error made by that commissioner's orders. 57 Nevertheless, on 2 October 2009, the acting assistant registrar referred the notice of motion to another commissioner who had been one of the two commissioners who had constituted the Court in 2005 that granted development consent. By consent, that commissioner made orders in chambers correcting condition 1 as sought in ALH's notice of motion.

The Council appeals against the commissioner's decision and orders 58 The Council by summons filed on 22 July 2009 appealed under s 56A(1) of the Court Act against the decision and orders of the commissioner on two questions of law: "1. The Commissioner erred in law in finding that, in determining an application under s 125 of the Roads Act 1993, it was not open to him to consider any matters beyond those items specified in the objects set out in s 3 of the Roads Act 1993.

The Commissioner erred in considering only the matters specified in the objects of the Roads Act when he ought also to have considered matters under s 79C of the Environmental Planning and Assessment Act 1979 that were relevant to this s 96 application before the Court."

The parties' submissions on the s 56A(1) appeal 59 The Council's first ground of appeal relates to the statements of the commissioner in paragraphs 17 and 18 of the judgment. The Council submits that the commissioner misdirected himself as to and misunderstood the statutory powers under the Roads Act in three respects. 60 First, the commissioner stated "[t]here is no provision of the Roads Act 1993 that would suggest that the powers extend beyond the matters in s 3". The Council submits that the commissioner was in error in concluding that the only matters that may be considered in determining an application under s 125 of the Roads Act are the matters in the objects clause of s 3 of the Roads Act. The Council submits that s 125 of the Roads Act itself provides relevant matters to be considered. 61 Furthermore, the Council submits the public interest is a relevant consideration for at least two reasons. First, it is implicit in s 125 and the scheme of the Roads Act that the decision maker in considering an application for approval of a footway for restaurant purposes should take into account the public interest. Secondly, the Court in making its decision in respect of the appeal in which the Court exercises the function of the Council under s 125 of the Roads Act, is required to have regard to the public interest: see s 39(4) of the Court Act. The Council submits that aspects of the public interest of relevance to the modification application before the Court were the Masterplan for The Corso and The Corso DCP. 62 The Council submits that the commissioner erred in holding that he was not bound to have regard to these documents (this being the commissioner's answer to his first issue in the appeal). The commissioner's subsequent consideration of them in answering his second issue on the appeal was not real consideration as he did so only should he be wrong in his answer to his first issue and for the different purpose of determining whether the position had changed since development consent had been granted by the Court in 2005. This was but mere advertence and rejection on the basis that he did not need to consider them. 63 Secondly, the commissioner stated that "the only practical explanation for the requirement for approval under s 125, in this case, is to give effect to condition 50" of the development consent granted by the Court in 2005. The Council submits that s 125 of the Roads Act is a distinct statutory power in a separate statute not dependent on any condition of development consent granted under the EPA Act. The Council submits that if the only purpose of the Roads Act approval was to give effect to condition 50 of the development consent, there would be no need for an approval at all. 64 Thirdly, the commissioner stated that "the approach [of requiring approval under s 125 of the Roads Act] is similar to the way a Construction Certificate gives effect to conditions of development consent". The Council submits that the grant of approval under s 125 of the Roads Act is not analogous at all to the grant of a construction certificate under the EPA Act. A construction certificate can only be issued whether there is development consent in force and such a certificate is granted under the same statutory regime as the development consent. This is not the case with a Roads Act approval. The scheme of the Roads Act does not necessarily intersect with the EPA Act. In some cases, although not in this case, there may be no need for development consent for a footpath restaurant. In those circumstances only a Roads Act approval may be required. Thus, the Council submits, it cannot be said that a Roads Act approval simply gives effect to the development consent. 65 The Council's second ground of appeal focuses on the commissioner's failure to recognise that the primary source of the Court's power on the appeal was s 96 of the EPA Act. Although the Court was being asked to exercise the power under s 125 of the Roads Act, the Court was doing so for the purposes of hearing and disposing of an appeal under s 96 of the EPA Act. As a consequence, the commissioner was bound to consider such of the matters referred to in s 79C(1) of the EPA Act as were of relevance to the development the subject of the modification application under s 96 of the EPA Act: see s 96(3) of the EPA Act. The commissioner, however, failed to consider s 96, and in particular s 96(3) of the EPA Act, and any matters under s 79C(1) of relevance to the development the subject of the modification application. 66 The Council submits the matters of relevance to ALH's modification application included The Corso DCP, the Masterplan for The Corso and the public interest. The Council submits the commissioner was also bound by s 39(4) of the Court Act to have regard to these matters in making his decision on the modification application the subject of the appeal. The Council submits the commissioner did not have regard to these matters in determining the modification application. Any consideration was limited to being for the purpose of determining the application under s 125 of the Roads Act and even then in the restricted manner addressed above in relation to the first ground of appeal. 67 ALH contests that the commissioner erred in the respects submitted by the Council. As to the first ground, ALH submits that: (a) The commissioner's approach in having regard to the objects in s 3 of the Roads Act was consistent with longstanding principles of statutory construction and discloses no error of law.

(b) The commissioner's approach to the exercise of the discretion conferred by s 125 of the Roads Act reflects an orthodox and uncontroversial application of the principles of statutory construction.

(c) The commissioner's analogy to a construction certificate does not disclose any material legal error. He was simply trying to explain the purpose of the application under s 125 of the Roads Act by way of an example. The example given does not reveal any error in the commissioner's reasoning.

(d) The commissioner accepted correctly that the purpose of the amendment to condition 50 was to give effect to the consent already granted in 2005 for use of the public roads. The commissioner rightly rejected the Council's submission that the discretion conferred by s 125 itself provided a further opportunity to re-agitate the merits of the original appeal under s 97(1) of the EPA Act. 68 In relation to the second ground, ALH submits that: (a) In paragraphs 33-38 of the judgment, the commissioner considered the documents referred to by the Council, including the Masterplan for The Corso and The Corso DCP. Such consideration could not be understood as anything other than an assessment under s 79C of the EPA Act.

(b) The commissioner gave proper, genuine and realistic consideration to the Council's primary contention in the appeal before the commissioner that the planning regime had changed since the date of the Council's consent in 2005.

The commissioner erred on questions of law 69 The commissioner's judgment is pellucid in revealing that the commissioner erred on questions of law in respect of both grounds of appeal. 70 In relation to the first ground of appeal concerning the power under s 125 of the Roads Act, the judgment records that the commissioner failed to ask himself the right question, asked himself the wrong questions and misdirected himself as to and misunderstood the power under s 125 of the Roads Act. 71 The commissioner failed to ask himself the right question as to what were the relevant considerations that he, as the decision maker exercising the power under s 125 of the Roads Act, was bound to take into account. The considerations a decision maker is bound to take into account are to be determined by construction of the statute conferring the discretionary power. 72 First, the decision maker is bound to consider the matters expressly stated in the power itself. The power under s 125 of the Roads Act is to grant an approval to a person of a certain status, namely "a person who conducts a restaurant adjacent to a footway of a public road (being a public road that is vested in fee simple in the council)." This description of the status requires the decision maker to address, and make findings of fact in relation to, each element of the description. The establishment which the applicant for approval conducts must meet the description of being a "restaurant" (see definition in the Dictionary of the Roads Act). The applicant must be a person who "conducts" a restaurant at the time of grant of the approval. The location of the restaurant that the applicant conducts must be "adjacent to a footway of a public road". This requires identification of the "public road", the "footway" component of the public road and a relationship of proximity between the restaurant and the footway of the public road which meets the description of being "adjacent". The public road must be a public road that is vested in fee simple in the Council, and not in some other person or roads authority. 73 The power in s 125 of the Roads Act is to grant an approval "to use part of the footway for the purposes of the restaurant". This phrase too requires consideration and fact finding in relation to each element. The words "the restaurant" are a reference to the restaurant the applicant "conducts". The approval is for that restaurant. The words "a part of the footway" are a reference to that part of the footway of the public road which is adjacent to the restaurant the applicant conducts. The approval is to use part of the "footway" of a public road and not other parts of the public road. The approval is to use part of the footway "for the purposes of" the restaurant. This requires a relationship between the restaurant the applicant conducts and the use of the part of the footway. Approval cannot be granted to use part of the footway for a different purpose, such as for the sole purpose of the bars of a hotel adjacent to the footway. 74 In addition to the expressly stated considerations, the decision maker is bound to take into account considerations which are implied from the subject matter, scope and purpose of the statute conferring the discretionary power: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. The objects of the statute assist in construing the subject matter, scope and purpose of the statute but do not exhaust the inquiry. In this case, the objects are in s 3 of the Roads Act. The terms of the power itself may also be relevant to be considered, in this case, s 125 of the Roads Act. The public interest may, by implication from the subject matter, scope and purpose of the statute, be a relevant matter to be considered: Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [39], [43]. In this case, the public interest is central to the task of a council fulfilling functions under the Roads Act, including approving under s 125 the use of a footway in a public road for restaurant purposes. The public interest is multi-faceted and includes the public interest in members of the public being able to pass along and use public roads, in persons who own land adjoining the public road having access to the public road and in regulating the carrying out of various activities on public roads. 75 The commissioner did not undertake this analysis of ascertaining the relevant considerations that he was bound, expressly or impliedly, to take into account in exercising the power under s 125 of the Roads Act to approve the use of the footway proposed by ALH or make findings of fact as to the relevant considerations. 76 Indeed, even though the commissioner stated in paragraphs 17 and 18 of the judgment that the matters in the objects clause in s 3 of the Roads Act were matters to be considered, he did not actually do so in the judgment. Nowhere does he address any of the matters in s 3 to ascertain which are relevant to the circumstances of the case (potentially the matters in paragraphs (a), (b) and (h) in s 3 of the Roads Act were relevant) and make findings of fact in relation to the relevant matters. 77 Instead, the commissioner asked himself the wrong questions. The commissioner's statement of the two issues in the appeal in paragraph 3 of the judgment and his statement of the "principal question" in paragraph 15 of the judgment provided the foundation for the commissioner embarking upon the wrong inquiry. 78 If a planning issue or aspect is a relevant consideration to be taken into account in the exercise of the discretionary power in s 125 of the Roads Act, the commissioner in exercising that power was bound to take it into account. The fact that a planning issue or aspect might also have been taken into account in an earlier exercise of the power under the EPA Act to grant development consent is irrelevant. Each statutory power must be exercised taking account of the relevant considerations each statute requires the decision maker to take into account. The fact that there may be an overlap in one or more of the relevant considerations does not relieve a decision maker who takes the overlapping relevant considerations into account in an earlier exercise of power under one statute from the obligation to take those relevant considerations into account in a later exercise of power under another statute. Rather, each statute requires "reconsideration" of the overlapping relevant considerations, in the sense of taking the relevant considerations into account in each exercise of each statutory power. 79 Moreover, each application for a statutory approval must be determined having regard to the relevant facts and circumstances and applying the law as it then exists, including when it is determined on appeal (if any) to the Court: Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 at 622; Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630 at 634-635. The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178 at [20]; and Hill v Blacktown City Council [2007] NSWLEC 401; (2007) 154 LGERA 418 at [20]. Hence, the commissioner was bound, in determining ALH's application under s 96(8) of the EPA Act to modify the consent granted by the Court in 2005 and its application for approval under s 125 of the Roads Act, to have regard to the facts and law relevant to those applications as they existed at the hearing. If the relevant facts and law had changed from 2005 when the Court heard the s 97(1) appeal and determined to grant development consent, the Court was bound to consider the changed facts and law. In so far as the commissioner may have concluded otherwise by his statement in paragraph 18 that "I do not accept that there is any basis to conclude that s 125 is to provide a further opportunity to reconsider issues that were previously considered and determined as part of the merit assessment of the development application", he erred in law. 80 The commissioner's misdirection as to and misunderstanding of the power under s 125 of the Roads Act are manifested in another way. The commissioner's statement of the first issue in paragraph 3 and "principal question" in paragraph 15 and his answering of that issue and question in the judgment reveal that the commissioner viewed the grant of approval under s 125 of the Roads Act to be a subordinate, consequential and mechanical implementation of the development consent granted by the Court. This is manifested in: (a) his rejection of the legitimacy of any "reconsideration" of "the planning aspects of the development consent previously granted by the Court in 2005" (paragraphs 3 and 15 of the judgment) and his non acceptance that "there is any basis to conclude that s 125 is to provide a further opportunity to reconsider issues that were previously considered and determined as part of the merit assessment of the development application" (paragraph 18 of the judgment);

(b) his statement that "the only practical explanation for the requirement for approval under s 125, in this case, is to give effect to condition 50" (paragraph 18 of the judgment); and

(c) his statement that an approval under s 125 of the Roads Act "is similar to the way a Construction Certificate gives effect to conditions of a Development Consent" (paragraph 18). 81 These statements involve misdirection and reveal misunderstanding. The statements rejecting the legitimacy of reconsidering matters that were considered when granting development consent involves error for the reasons given above. Furthermore, the requirement for approval under s 125 of the Roads Act is independent of any requirement for development consent under the EPA Act. The fact that in many cases a person who wishes to use a footway on a public road for the purposes of a restaurant may be required to obtain both a development consent under the EPA Act and an approval under the Roads Act, does not cause one to be subordinated to the other. 82 It is an error to say that the approval under s 125 of the Roads Act is only required in this case because of condition 50 of the development consent. That condition granted consent to use part of a footway on a public road for outdoor eating and dining. The condition did not in terms require the applicant to apply for and obtain approval under s 125 of the Roads Act. The requirement to obtain such approval flows from the Roads Act itself. A person may not use a footway on a public road for the purposes of a restaurant without approval granted under s 125 of the Roads Act. The statutory requirement exists independently of any development consent. 83 It is also an error to equate an approval under s 125 of the Roads Act to a construction certificate under the EPA Act on the basis that both give effect to conditions of development consent. Whether it be correct to say that a construction certificate gives effect to conditions of a development consent or not, an approval under s 125 of the Roads Act does no such thing. It is a stand alone power under one statute not dependent on, and having no relationship to, conditions of a development consent granted under a different statute. The commissioner's use of the simile reveals misunderstanding of the power under s 125 of the Roads Act. 84 Accordingly, the commissioner erred on questions of law in relation to the exercise of the power under s 125 of the Roads Act. 85 In relation to the second ground concerning the power under s 96 of the EPA Act, the commissioner's judgment is plain that the commissioner failed to ask himself the right questions and failed to consider the relevant power and relevant considerations under s 96 of the EPA Act. The commissioner failed to: (a) refer to s 96 of the EPA Act at all in the judgment;

(b) identify the source of power to modify the consent in the manner sought in ALH's application, whether s 96(1) as being a modification involving minor error, misdescription or miscalculation, s 96(1)(A) as being a modification involving minimal environmental impact or s 96(2) as being another modification, and then address and form the requisite states of satisfaction as to the particular conditions qualifying the exercise of the applicable source of power (see King v Bathurst Regional Council at [64], [76], [77]);

(c) address whether ALH's application to amend condition 50 by adding a statement that approval is granted under s 125 of the Roads Act but without making any change to the development for which consent was originally granted, proposed a modification that can be made under any of the sources of power in s 96(1), (1A) or (2) of the EPA Act;

(d) refer to s 96(3) of the EPA Act and identify and take into consideration such of the matters referred to in s 79C(1) of the EPA Act as are of relevance to the development the subject of ALH's modification application; and

(e) identify the source of power to impose the conditions proposed by the Council and ALH, and ultimately the conditions the commissioner determined to impose, being condition 50(ii) and the incorporated conditions in Annexure B and condition 50(iv) and the conditions in Attachment 1, address whether such conditions were within power and differentiate between the conditions to be imposed on the approval under s 125 of the Roads Act and on the approval of the modification application under s 96 of the EPA Act. 86 Although the commissioner states his conclusion in paragraph 19 that he accepted ALH's version of condition 50 as the modification of the development consent, the reasons given for that conclusion in the preceding paragraphs of the judgment only addressed the exercise of power under s 125 of the Roads Act and in particular the commissioner's first issue or principal question on the appeal of whether it is appropriate, as part of the consideration process of the application under s 125 of the Roads Act, to reconsider the planning aspects of the development consent previously granted by the Court in 2005. The judgment does not address the matters relating to s 96 of the EPA Act I have referred to above. 87 The commissioner's consideration of The Corso DCP and the Masterplan for The Corso in paragraphs 33-39 of the judgment was not for the purpose of assessing ALH's modification application under s 96 of the EPA Act. Rather, it was for the purpose of answering the second of the issues in the appeal that the commissioner had identified in paragraph 3 of the judgment. This second issue only arose, in the commissioner's formulation of the issues in the appeal, if the first issue was answered in the affirmative ("if so"). That is to say, if it is appropriate to reconsider planning issues as part of the consideration of the application under s 125 of the Roads Act, has there been sufficient change to the planning regime to reconsider any planning issues? The commissioner in fact answered the first issue in the negative: see paragraphs 15 and 18 of the judgment. Nevertheless, the commissioner went on to address the second issue "[i]f I am incorrect in concluding that s 125 does not allow reconsideration of the planning issues": paragraph 39 of the judgment. Paragraphs 33-39 are in the section of the judgment headed "A change to the planning regime?". This clearly refers to the commissioner's second issue. 88 The commissioner's conclusion from his analysis of the second issue was that "the planning regime for The Corso has not changed [in] any meaningful way since the previous hearing and as such cannot be the basis for the reconsideration of the merits addressed by the Court in 2005": paragraph 39 of the judgment. 89 Accordingly, I reject ALH's submission that paragraphs 33-38 of the judgment could not be "anything other than an assessment under s 79C of the EPA Act". The consideration was clearly not an assessment of the matters under s 79C of relevance to the modification application under s 96 of the EPA Act but rather was for the purpose of addressing the commissioner's second issue concerning s 125 of the Roads Act. 90 Accordingly, the commissioner also erred on questions of law in relation to the exercise of power under s 96 of the EPA Act.

Relief to be ordered 91 The commissioner's decision and orders, being affected by error on questions of law, should be set aside. The question arises, however, whether the matter should be remitted to the commissioner for determination in accordance with the decision of the Court or instead some other order should be made. The question arises because of the jurisdictional problem that I have referred to earlier that the Court's power under s 39(2) of the Court Act to exercise the function of the Council under s 125 of the Roads Act has not been engaged in these proceedings. These proceedings involve an original application under s 96(8) of the EPA Act directly to the Court and not an appeal under s 96(6) of the EPA Act or any other appeal provision against a decision of the Council. If there is no decision of the Council the subject of the appeal, the Court cannot have "all the functions or discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal." The consequence is that the Court, properly appreciating the nature of these proceedings, could not, in hearing and disposing of these proceedings, exercise the Council's function to grant approval under s 125 of the Roads Act. 92 If the Court cannot exercise that function, there is no utility in the proceedings. The modification application was solely made to the Court for the purpose of enabling the Court to grant approval under s 125 of the Roads Act. If the Court cannot grant approval under s 125 of the Roads Act, there is no point to the modification application. 93 The modification sought by ALH, namely stating in condition 50 of the development consent that approval is granted under s 125 of the Roads Act, cannot have a constitutive effect; that is to say, it does not have the legal effect of granting approval under s 125 of the Roads Act. Evidently, approval under s 125 of the Roads Act can only be granted by the exercise of the power under s 125 of the Roads Act not by the exercise of the separate power in s 96 of the EPA Act to modify a consent granted under that Act. The modification sought by ALH also could not be declaratory, that is to say, declaring that approval under s 125 of the Roads Act has been granted. Properly appreciating the nature of these proceedings, the Court could not grant approval under s 125 of the Roads Act as it would not have that power in these proceedings. The Council has not granted such approval. Hence, it would be false for condition 50 to declare that approval has been granted under s 125 of the Roads Act when it has not. 94 In these circumstances, there is no utility in the matter being remitted to the commissioner for redetermination because, having regard to the nature of the proceedings, and the fact that s 39(2) of the Court Act would not vest in the Court the power in s 125 of the Roads Act vested in the Council, the commissioner could only refuse the modification application and dismiss the proceedings. 95 The Court on a s 56A(1) appeal can make such orders in relation to the appeal as seems fit: see s 56A(2)(b) of the Court Act. This includes dismissing the substantive proceedings if that is the only proper order that could or should be made: Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230; (2007) 156 LGERA 150 at [103]-[108]; Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 at [76], [167] and [195]; and Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198 at [18] and [19]. 96 An appellate court "should exercise a power conferred on it in wide terms so as to ensure that the cost of legal disputation is minimised and thereby apply the guiding principle in s 56 of Civil Procedure Act 2005 to the exercise of powers conferred by an Act other than that Act or by Rules of Court, so as to facilitate the just, quick and cheap resolution of the issues in dispute in civil proceedings": Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council at [103]. 97 A potential obstacle in the path of this otherwise proper course of action is the Court's earlier decision on the separate question. As I have noted, as a general rule, a decision on a separate question binds the parties, subject to appeal, in the further conduct of the proceedings. Although an appeal to the Court of Appeal has been lodged by the Council against the decision on the separate question, the appeal has yet to be determined. Unless and until the decision is set aside, the parties are bound by it. 98 This raises the question of whether the decision on the separate question, properly construed, actually holds that the Court, in hearing and disposing of proceedings involving an original application made directly to the Court under s 96(8) of the EPA Act, has the function of the Council to grant approval under s 125 of the Roads Act. If so, the parties would be bound by the decision, subject to appeal, in the further conduct of the proceedings including on any remitter to the commissioner. The commissioner would proceed to hear and determine the proceedings on the basis decided that the Court has the function of the Council to grant an approval under s 125 of the Roads Act. If not, however, then the decision on the separate question would become irrelevant and neither the parties nor the commissioner would be bound to proceed on the basis that the Court, in hearing and disposing of the proceedings, had the function of the Council to grant approval under s 125 of the Roads Act. 99 In my opinion, the decision on the separate question cannot be construed as holding that the Court, in hearing and disposing of these proceedings which involve an application under s 96(8) of the EPA Act, has the function of the Council under s 125 of the Roads Act. There are two reasons. 100 First, the separate question and hence the answer are in hypothetical and ambiguous terms and do not clearly and unequivocally include within their ambit the circumstance of these proceedings where there is no decision that is the subject of the appeal but rather there is an original application to the Court. 101 Secondly, the separate question and answer were founded on the assumption that the proceedings involved an appeal under s 96(6) of the EPA Act. That is expressly stated in paragraph 3 of the judgment on the separate question and is implicit in the analysis, including of the cases, throughout the judgment. As I have said, this assumption was both factually and legally erroneous. Nevertheless, on the assumption that the proceedings were an appeal under s 96(6) of the EPA Act, then in that circumstance there would have been a decision of the Council the subject of the appeal, being a decision of the Council in respect of the modification application. The separate question and answer, therefore, need to be understood in light of the assumed basis and confined to the circumstance of an appeal under s 96(6) of the EPA Act. 102 In these circumstances, although the decision on the separate question remains and binds the parties, unless and until set aside on appeal, it is hypothetical and does not determine that the Court, under s 39(2) of the Court Act, in hearing and disposing of these proceedings which involve an original application to the Court under s 96(8) of the EPA Act and not an appeal under s 96(6) of the EPA Act against a decision of the Council, has the functions of the Council under s 125 of the Roads Act. On this basis therefore, there is no need to remit the matter to the commissioner to be determined in accordance with the decision on the separate question because it is not dispositive of these proceedings. 103 As I am of the firm view that the Court, in hearing and disposing of these proceedings involving an application to the Court under s 96(8) of the EPA Act, does not have and cannot exercise the function of the Council under s 125 of the Roads Act, there is no utility in remitting the matter to the commissioner for further determination. There is no amendment to the proceedings that ALH can make that will engage s 39(2) of the Court Act so as to give the Court power under s 125 of the Roads Act; the problem is the very nature of the proceedings ALH has brought. Only by commencing different proceedings that properly involve an appeal against a decision of the Council could ALH seek for the Court to invoke the power under s 39(2) of the Court Act. 104 The proper orders, therefore, are to uphold the s 56A(1) appeal, set aside the commissioner's orders and dismiss the substantive proceedings. The costs of the s 56A(1) appeal should follow the event.

The Court makes the following orders and directions:

The appeal under s 56A(1) of the Land and Environment Court Act 1979 is upheld and the commissioner's orders are set aside.

The proceedings under s 96(8) of the Environmental Planning and Assessment Act 1979 are dismissed.

The applicant is to pay the respondent's costs of the s 56A(1) appeal.

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.

Environmental Planning and Assessment Regulation 2000(NSW)

CITATION : Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226

1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Australian Leisure and Hospitality Pty Ltd v Manly Council [2005] NSWLEC 316 Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 2) [2008] NSWLEC 312; (2008) 167 LGERA 1 Australian Leisure and Hospitality Pty Ltd v Manly Council (No 3) [2009] NSWLEC 1180 Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 Hill v Blacktown City Council [2007] NSWLEC 401; (2007) 154 LGERA 418 King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362 CASES CITED: Makram Constructions Pty Ltd v North Sydney Council [2002] NSWLEC 4; (2002) 119 LGERA 42 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230; (2007) 156 LGERA 150 The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178

Nature of proceedings and conclusion Manly Council appeals under s 56A(1) of the Land and Environment Court Act 1979 ("the Court Act") against the decision and the orders of a commissioner of the Land and Environment Court made on 10 June 2009 and 10 July 2009 respectively, to modify a development consent under s 96 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") and to grant approval under s 125 of the Roads Act 1993 (NSW) ("the Roads Act"). The appeal is on questions of law. 2 I have determined that the appeal should be upheld and the commissioner's orders set aside. I have also determined that the substantive proceedings should be dismissed. An understanding of the nature and history of the proceedings explains why this last mentioned order is proper. The Court grants development consent 3 On 24 June 2005, the Land and Environment Court upheld an appeal under s 97(1) of the EPA Act against a deemed refusal of a development application made by Australian Leisure and Hospitality Group Pty Ltd ("ALH") for major alterations and additions to the New Brighton Hotel at 71 The Corso, Manly: Australian Leisure and Hospitality Pty Ltd v Manly Council [2005] NSWLEC 316. 4 The Court determined to grant development consent for the alterations and additions. Of relevance to the current proceedings, the alterations and additions included, on the ground level, demolition of the existing walls and windows to The Corso and Sydney Road and the provision of glazed bi-fold doors between the remaining columns. An outdoor eating area under the existing awning in The Corso and Sydney Road was proposed. On the first level, the proposal was for a new kitchen, new glazed doors to a portion of the existing The Corso and Sydney Road facades and an extension of the trafficable portion of the Sydney Road balcony. At the roof terrace level, an internal restaurant was proposed. The outdoor eating area and the work on the balconies were to be located on land comprising the public roads of The Corso and Sydney Road. The Council is the roads authority for these public roads. 5 In the s 97(1) appeal, the Council took no issue with ALH's application extending to the public road. The Council's consent as owner of the public roads to the making of ALH's application was implied. 6 By operation of s 39(5) of the Court Act, the decision of the Court on the s 97(1) appeal to grant development consent became the final decision of the Council whose decision (the deemed refusal) was the subject of the appeal. The consent was effective and operated from the date of the Court's decision: s 83(4) of the EPA Act. Council refuses approval under s 125 of the Roads Act 7 ALH subsequently made a number of applications under s 125(1) of the Roads Act to use the footway for the purposes of a restaurant, in accordance with the outdoor eating area approved by the development consent granted by the Court. The Council refused each of the s 125 applications. There is no right of appeal, by way of merits review, against a council's decision to refuse approval under s 125 of the Roads Act.

The separate question is decided on an erroneous basis 24 Judgment on the separate question was delivered the day after the hearing, on 21 November 2008, answering the rephrased question in the affirmative: Australian Leisure and Hospitality Group Ltd v Manly Council (No 2) [2008] NSWLEC 312; (2008) 167 LGERA 1 at [4], [36]. 25 Unfortunately, the decision on the separate question was based on the erroneous assumption that the proceedings involved an appeal under s 96(6) of the EPA Act: see [3] of the judgment. This assumption was not only factually erroneous, as the proceedings were in fact an application under s 96(8) of the EPA Act made directly to the Court, but also legally erroneous because s 96(6) of the EPA Act does not enable an appeal to be made against the determination of an application to modify a development consent granted by the Court (see s 96(7) of the EPA Act). In this case, the application was to modify the development consent granted by the Court in 2005. 26 The decision on the separate question, therefore, proceeded on the erroneous assumptions that there was a decision the subject of the appeal, that the Council was the person or body whose decision was the subject of the appeal and that the function of granting approval under s 125 of the Roads Act was a function of the person or body whose decision was the subject of the appeal. Based on these assumptions, the critical issue was whether that function was "in respect of the matter the subject of the appeal". The judge held that it was: at [24]. 27 As I have noted, however, the true position was that there was no application to the Council for modification of the development consent granted by the Court, no decision of the Council in respect of such an application and no appeal against any such decision of the Council. Rather, the proceedings involved an original application made directly to the Court under s 96(8) of the EPA Act. The question that needed to be answered, but never was, was whether s 39(2) of the Court Act applied in the circumstance where the "appeal" it is hearing and disposing of is an original application to the Court under s 96(8) of the EPA Act. 28 The reasons for decision on the separate question did not refer to, and the parties in their submissions at the hearing of the separate question did not refer the Court to, the decision of Bignold J in Makram Constructions Pty Ltd v North Sydney Council [2002] NSWLEC 4; (2002) 119 LGERA 42. This was also unfortunate because the decision was on point. 29 The Makram case also involved the determination of questions of law preliminary to the hearing on the merits of an application under s 96 of the EPA Act to modify a development consent granted by the Court. The questions of law raised the issue of whether the Court, in hearing and disposing of an application under s 96 of the EPA Act to modify a development consent granted by the Court, could exercise, under s 39(2) of the Court Act, certain functions of the Council under the Road Transport (Safety and Traffic Management) Act 1999. At the time of the Makram decision, s 96AA had not been enacted so as to allow an application to modify a consent granted by the Court to be made to a council. Such an application could only be made directly to the Court. The right of appeal under s 96(6) was then, as it still is now, not available to appeal against a decision of a council in relation to an application to modify a consent granted by the Court. Hence, the modification application in the Makram case was made directly to the Court to modify a consent granted by the Court. 30 Bignold J noted the relevant statutory provisions regulating applications to modify consents granted by the Court and the Court's powers in hearing and disposing of such applications. Bignold J concluded: "[33] … Thus, the Court, in determining the applicant's modification application is exercising original and not appellate jurisdiction.

The modification application is determined by a commissioner 34 After the Court answered the separate question on 21 November 2008, the balance of the proceedings was fixed for hearing. The hearing took place before a commissioner on 17 April 2009, with submissions filed on 6 May 2009. Judgment was delivered on 10 June 2009: Australian Leisure and Hospitality Pty Ltd v Manly Council (No 3) [2009] NSWLEC 1180. This is the decision the subject of the s 56A(1) appeal.

(2007) 154 LGERA 418

(2006) 150 LGERA 362

(2009) 166 LGERA 379

(2008) 161 LGERA 423

(2007) 156 LGERA 150

(2004) 137 LGERA 178

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (26)

Cited By (16)