Barca v Wollondilly Shire Council

Land and Environment Court (NSW)|2013-09-27|Before: Pepper J, Mr P

The Applicant Appeals Against a Determination of the Council Refusing to Grant Development Consent 1This application, brought by the third respondent, Sell and Parker Pty Ltd ("Sell and Parker"), for the determination of two preliminary separate questions in Class 1 proceedings, ultimately raises a question as to the Court's jurisdiction to entertain an appeal against an arguably invalid determination refusing to grant development consent to the applicant, Rosaria Maria and Mimma Barca. 2The central background facts to this application are not in dispute and, after some cajoling by the Court, were reduced by the parties to an agreed statement of facts. 3On 19 May 2010 the applicant submitted an application to the Director-General of Planning for Director-General's Requirements for Environmental Assessment ("DGRs") for the construction of a resource recovery and waste management facility. The application was for designated development. 4The land the subject of the application was located at 390-400 Picton Road, Maldon. The land is 8.94ha and is triangular in shape, bounded by Picton Road, the Main Southern Rail Line and a property owned by the second respondent, Allied Mills Pty Limited ("Allied"). Access to the site is by a right of carriageway over Allied's property. 5The purpose of the completed facility is to enable recovery of resources from metal based products previously used by the community and industry. The proposal involves the following activities: (a)the receipt of 80,000 tonnes per annum of metal recyclables; (b)the recovery and handling of metal materials from metal based products at a capacity of 80,000 tonnes per annum; (c)the sale of sorted metals to various steel mills and foundries throughout New South Wales; and (d)the export of sorted metals both interstate and overseas. 6On 21 May 2010 DGRs were issued in response to the application. Accordingly, on 31 May 2012, the applicant submitted a development application ("the DA") along with an environmental impact statement ("the original EIS") to the first respondent, Wollondilly Shire Council ("the council"), for determination. 7On 27 June 2012, the council forwarded the DA and original EIS to a number of external agencies, including the NSW Roads and Maritime Services ("RMS") and the Environmental Protection Authority ("EPA"). 8On 5 July 2012, the DA and original EIS were notified to nearby and adjoining land owners and advertised in the District Reporter, the Wollondilly Advertiser and the Macarthur Chronicle ("the first exhibition"). The first exhibition commenced on 5 July and concluded on 6 August 2012, a period of 32 days. 9On 6 July 2012, a submission was received by the council from Urbis Pty Ltd ("Urbis") on behalf of Allied, raising the following deficiencies with the DA, namely, that there was: (a)insufficient information in relation to noise impacts; (b)insufficient information in relation to air quality impacts; (c)inadequate assessment of traffic impacts; (d)unjustified hours of operation; (e)an unsatisfactory landscape plan; (f)insufficient information concerning power impacts; (g)insufficient information concerning stormwater and wastewater management; and (h)a lack of owner's consent for the works proposed to be carried out on Allied's property. 10On 17 July 2012 the EPA advised the council that the original EIS did not contain sufficient information to enable the EPA to undertake an adequate assessment of the DA. In particular, the EPA required the applicant to submit copies of: (a)a noise impact assessment; and (b)an air quality assessment. 11On 20 July 2012 RMS advised the council that before it could approve the DA, it required a redesign of the proposed access arrangements to the development. 12On 23 and 30 July 2012 the council notified the applicant of the EPA's request for additional information and that the RMS required a redesign of the access arrangements. 13Therefore, on 2 August 2012, the applicant submitted an amended EIS to the council that contained the additional information requested by the EPA ("the amended EIS"). 14According to his affidavit sworn 27 August 2013, Mr Grant Rokobauer, an officer of the council who had the daily control and carriage of the DA, formed the view that "the changes which were made between the Amended EIS from the Original EIS were minor only" and that he "was of the view that there was no requirement under the [EPAA] for re exhibition due to the operation of section 79(6) of the Act." 15As a consequence, Mr Rokobauer decided to inform only those persons who had made submissions relating to issues raised by the EPA that the amended EIS had been received by the council. Thus on 27 August 2012 notice that the council had received additional information relating to the DA was provided to Mr Colin Tyson and Urbis (on behalf of Allied). The information was not provided to any other person nor was it publicly exhibited ("the second exhibition"). 16A schedule of differences between the original EIS and the amended EIS was, however, put before the Court. Significantly, the amended EIS contained a new section 5.1 that inserted information on noise and air quality that, according to the schedule, had been previously "missing" from the original EIS. 17The second exhibition of the amended EIS began on 27 August and concluded on 11 September 2012, a period of 15 days. 18On 11 September 2012 the EPA issued General Terms of Approval. 19Two days later, on 13 September 2012, Sell and Parker submitted an objection to the council. The objection raised concerns in respect of: (a)the adequacy of the notification process; (b)the adequacy of the assessment under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth); and (c)the adequacy of the risk assessment. 20On 5 October 2012 Mr Rokobauer caused additional information concerning the required treatment of the access to the proposed works by the RMS to be sent to Urbis (on behalf of Allied), Inghams Enterprises Pty Ltd, Delpat Pty Ltd, and Mr Mark Taylor. These entities were the landowners adjoining or affected by the new roundabout proposed in response to the issues articulated by the RMS. Neither notice of nor the information itself was provided to any other person or was publicly exhibited ("the third exhibition"). 21As stated in his affidavit, once again Mr Robokauer "did not consider the changes to be other than minor". He therefore "formed the view that the RMS conditions did not result in a change in the application and so did not result in a requirement under the Act to further exhibit the proposal." 22It is convenient to note at this juncture that at the hearing of these proceedings, the council conceded that there was no instrument of delegation of consent authority functions under s 79(6) of the Environmental Planning and Assessment Act 1979 ("the EPAA") to Mr Rokobauer in existence (T23.30-23.48). 23The third exhibition commenced on 5 October and concluded on 22 October 2012, a total of 17 days. 24Neither the second nor the third exhibition included a notice published in any newspaper. 25On 2 November 2012 Allied submitted a further submission to the council concerning perceived inadequacies with the amended EIS and the lack of any owner's consent for the works proposed on its land. 26On 14 November 2012 Sell and Parker submitted a further objection to the council. This submission raised concerns regarding: (a)the permissibility of the development; (b)the adequacy of the environmental assessment; and (c)staging issues. 27Subsequently, on 29 November 2012, Sell and Parker submitted a noise impact assessment review to the council. The review concluded that there were serious deficiencies in the amended EIS, especially insofar as it failed to give proper consideration to the cumulative noise impacts, the air blast noise levels and the potential for sleep disturbance. 28On 17 December 2012, the council determined to refuse the DA for the following reason: The application was not accompanied by the consent of the owners of Lot 1 DP 1128013 and works and access are required on that land. The owners of that land have indicated that they will not provide such consent and without the consent, the applicant is not permitted to make the application under clause 49 of the Environmental Planning and Assessment Regulation 2000. 29Therefore, on 22 December 2012 the applicant commenced proceedings in the Court appealing against the refusal of the DA by the council. The applicant also foreshadowed an application for the provision of an easement pursuant to s 40 of the Land and Environment Court Act 1979 ("the LEC Act") 30Allied and Sell and Parker were joined to the proceedings in conformity with s 97A(4) of the EPAA, on 5 February 2013. 31On 26 February 2013, Sell and Parker filed its statement of facts and contentions relevantly contending for present purposes that the DA and accompanying EIS, and the exhibition of those documents, failed to comply with the mandatory requirements of the EPAA and the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations") with respect to notification and exhibition. The matter was listed for hearing for five days commencing 4 June 2013. 32On 1 May 2013 the applicant filed a notice of motion seeking a vacation of the hearing dates and an order that the council exhibit the amended EIS and "any additional documents the Applicants seek to annex to it" in accordance with the EPAA. 33The motion was accompanied by an affidavit sworn by Mr Dennis Loether, the solicitor for the applicant, on 1 May 2013. Paragraph 5 of his affidavit stated that: To the best of my knowledge and belief the First Respondent has not exhibited the Amended Environmental Impact Statement in accordance with section 79(1)(a) of the Environmental Planning & Assessment Act 1979. 34On 6 May 2013, the applicant served a number of documents it proposed should be exhibited with the amended EIS, including a "Preliminary Hazards Analysis" and a "Risk Management Plan". 35On 7 May 2013, the hearing dates were vacated and the applicant's motion was adjourned to 28 May 2013, in order for the applicant to confirm all of the material they proposed to exhibit with the amended EIS. 36On 17 May 2013, the Applicant served the additional information, identified in a schedule of differences, which included additional annexures to the amended EIS in respect of a "Preliminary Hazard Analysis", a "Risk Management Plan", a "Concept Site Plan", a supplementary air quality assessment and a noise assessment ("the further amended EIS"). 37The additional information attached to the further amended EIS has not been provided to any person other than the parties to the proceedings, and has not been placed on public exhibition or otherwise advertised. 38On 21 May 2013, the applicant filed its amended statement of facts and contentions in reply. In this document the applicant asserted that the development application had been publicly exhibited in accordance with s 79(1)(a) of the EPAA. 39On 28 May 2013 the Court directed the applicant to serve a schedule of all documents it sought to rely upon, including a schedule of the changes to the various versions of the EIS, by 11 June 2013. 40On 7 June 2013, the applicant served another iteration of the EIS that attached further additional information. The further additional information was identified in a schedule of differences, which referred to replacement annexures in respect of the "Concept Site Plan", the "Landscape Plans" and the supplementary noise assessment ("the second further amended EIS"). 41The further additional information attached to the second further amended EIS has not been provided to any person other than the parties to these proceedings, and likewise, has not been placed on public exhibition or otherwise advertised. 42On 19 June 2013, Sell and Parker filed a notice of motion seeking preliminary determination of the two separate questions the subject of this judgment.

The Separate Questions 43On 20 June 2013, the Court listed the following preliminary questions for separate determination: (a)has the DA been exhibited as required by s 79 of the EPAA? (b)does the Court have jurisdiction to determine the DA as amended otherwise than by way of refusal? 44In summary, Sell and Parker contend that each question should be answered "no", and as a consequence, the appeal must be dismissed. The applicant concedes that the first question should be answered in the negative, but argues that the second question should be answered in the affirmative. And the council and Allied both argue that each question should be answered "yes".

Question One: Has the DA Been Exhibited in Accordance With the EPAA? 45Section 79(1) of the EPAA deals with the requirement to publicly exhibit and provide notification of development applications in order to carry out designated development. It states: (1) Public exhibition and notification As soon as practicable after a development application is made for consent to carry out designated development, the consent authority must: (a) place the application and any accompanying information on public exhibition for a period of not less than 30 days (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (d), and (b) give written notice of the application in accordance with the regulations: (i) to such persons as appear to it to own or occupy the land adjoining the land to which the development application relates, and (ii) if practicable, to such other persons as appear to it to own or occupy land the use or enjoyment of which, in its opinion, may be detrimentally affected if the designated development is carried out, and (iii) to such other persons as are required to be notified by the regulations, and (c) cause notice of the application to be exhibited in accordance with the regulations on the land to which the application relates, and (d) cause notice of the application to be published in accordance with the regulations in a newspaper circulating in the locality. 46Section 79(6) provides for the circumstances in which public exhibition of a development application may be dispensed with: If: (a) a development application for designated development is amended, or substituted, or withdrawn and later replaced before it has been determined by the consent authority, and (b) the consent authority has complied with subsections (1), (2) and (3) in relation to the original application, and (c) the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application, the consent authority may decide to dispense with further compliance with subsection (1) in relation to the amended, substituted or later application. In that event, compliance with subsection (1) in relation to the original application is taken to be compliance in relation to the amended, substituted or later application. 47No issue is taken with the exhibition of the original EIS. That is to say, all parties accept that the first exhibition was in accordance with s 79(1) of the EPAA. 48Rather, Sell and Parker contend that neither the second nor the third exhibition of the EIS conformed with s 79(1) of the EPAA. For the reasons that follow, this submission must be accepted. 49It was uncontentious that the effect of s 79(1) and (6) of the EPAA is that if an original development application (which includes the material accompanying that application) has been exhibited in conformity with s 79(1) and is later amended, the consent authority may dispense with the further exhibition of the amended application if the consent authority is of the opinion that the amended application differs "only in minor respects from the original application" (s 79(6)). Otherwise, the amended development application must be re-exhibited in accordance with s 79(1). 50In the present case, the only evidence of any decision to dispense with exhibition of any part of the development application, in this case the amended EIS, was that given by Mr Rokobauer. Although he was not cross-examined on the contents of his affidavit, his evidence was problematic in two fundamental respects. First, and as the council all but conceded, the views expressed by Mr Rokobauer in his affidavit represented no more than his personal opinion and not those of the council. Put another way, in the absence of any delegation of the council's functions to him, or any further information that would permit the Court to properly infer that the council was bound by his conclusion that the changes made to the original EIS in the amended EIS were "only minor", very little, if any, weight was given to his evidence in this regard. 51Second, even if the views expressed by Mr Rokobauer were those of the council, it was not reasonably open to the council to conclude that the amended EIS differed from the original EIS in "only minor" respects. As Sell and Parker submitted, there were material deficiencies in the original EIS that were sought to be addressed by the applicant in the amended EIS. In particular, the amended EIS included the "missing" noise impact and air quality assessments. The noise emissions of the proposed development and its impact on air quality were central concerns raised by the residential community. It was the paucity of this information in the original EIS that prevented the EPA from properly assessing the DA. The provision of this additional material was plainly significant and meant that the difference between the original EIS and the amended EIS could not be characterised as "only minor". In addition, in response to the concerns raised by RMS with respect to the proposed access arrangements, the applicant altered the access arrangements, and information concerning the changes and their consequential impact on traffic was submitted with the amended EIS. These changes included the construction of a new roundabout. Again, these changes were not in any way "only minor" in character. 52It is no doubt for these reasons that the applicant (but neither the council nor Allied) ultimately, correctly, in my view, conceded that the first question should be answered in the negative. 53There having been no cogent evidence that the requisite opinion was formed by the council permitting dispensation with the notification and exhibition requirements prescribed in s 79(1) of the EPAA, the inevitable result is the finding that neither the second nor the third exhibition complied with s 79(1) because: (a)neither version of the amended EIS was exhibited for 30 days; (b)written notice was not provided to all persons required to be notified by s 79(1)(b), rather it was provided to: (i)in respect of the second exhibition, only those persons who had objected to the first exhibition; and (ii)in respect of the third exhibition, only those landowners of land adjoining the new proposed roundabout; and (c)notice was not published in any newspaper as required by s 79(1)(d) of the EPAA. 54Accordingly, the second and the third exhibitions were conducted in a manner contrary to s 79(1) of the EPAA.

The Determination of the Council is Invalid 55What then is the legal effect of the non-compliance with s 79(1) of the EPAA? 56Section 80(9) of the EPAA provides that: Restrictions on determination of development applications for designated development A consent authority must not determine a development application for designated development: (a) until after the submission period (within the meaning of section 79 (1) (a)) has expired... 57The provision therefore prohibited the council from determining the DA insofar as the amended EIS was not exhibited for the submission period. 58The law reports are replete with statements as to the legal consequence of a failure to adhere to the public notification requirements in the EPAA. The Chief Judge of this Court reviewed the decisions in Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143 (at [83]-[89] and the authorities referred to thereat). 59Adopting Sell and Parker's summary of his Honour's articulation of the authorities and supplementing them with recent case law, the principles may be distilled as followed: (a)first, having regard to the principle established in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at 388-389), statutory requirements for notification and advertising of development applications must generally be strictly observed and are usually a condition precent to the exercise of statutory power (most recently, see Director-General NSW Department of Industry and Investment v Mato Investments Pty Ltd [2014] NSWCCA 132 at [65] per Bathurst CJ, with whom Fullerton and Bellew JJ agreed); (b)second, a failure to comply with such statutory requirements will usually not result in mere technical breaches of the EPAA. That is to say, a purported exercise of statutory power has no validity where a condition for the exercise of that power has not been fulfilled; (c)third, compliance with mandatory statutory reporting and exhibition obligations are in the public interest. This is because reasonable opportunities for public participation in decision-making in the development process are crucial to the integrity of the planning system. Thus such provisions may be viewed as a species of statutory directive to service the public interest that is enshrined in the objectives of the EPAA (specifically in s 5(c) of that Act); (d)fourth, the purpose achieved by giving effect to the legislative objective of facilitating public participation is not only to afford a form of procedural fairness by providing an opportunity to those potentially affected by the proposal to object or comment, but to improve the process of decision-making by the consent authority; and (e)fifth, it will rarely be the case that a Court can find that the failure to comply with statutory notification and exhibition requirements will have made no difference to the outcome of a determination made by a consent authority. The courts have repeatedly opined that a court cannot know beyond the hypothetical the injustice caused by a failure to adhere to such provisions because the possible objectors and the possible objections are not known. 60In their application, these principles resonate loudly in the present case. As a consequence, the condition precedent to the valid exercise of the council's statutory power to, by determination, refuse the DA has not been satisfied, and there having been no power to make the determination, I find the determination of the DA to be invalid. 61What, however, is the consequence of a finding of invalidity on the Class 1 appeal? This is, in effect, the gravamen of the second separate question for preliminary determination.

Question Two: Does the Court Have Jurisdiction to Determine the DA as Amended Otherwise Than By Way of Refusal? 62Sell and Parker submits that by reason of the invalidity of the council's determination, the Class 1 appeal must be dismissed, there being no decision or deemed decision of the council in respect of the DA to enliven the jurisdiction of the Court. 63The legislative framework within which this question is to be decided is set out below. 64The Court has jurisdiction to hear and dispose of appeals under s 97 of the EPAA (s 17(d) of the LEC Act). Section 97(1) of the EPAA provides as follows: Appeal by applicant-development applications (1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after: (a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or (b) the date on which that application is taken to have been determined under section 82 (1). 65Section 39 of the LEC Act sets out the powers of the Court on appeal in Class 1 proceedings. It relevantly states as follows: (1) In this section, "appeal" means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and 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. 66Sell and Parker argued that because a Class 1 appeal can only relevantly arise pursuant to a "determination" of a consent authority, in the present case, there having been no valid determination by the council of the DA by reason of the failure to comply with the notification and exhibition requirements contained in s 79(1) of the EPAA, there can be no continuing matter to engage the Class 1 jurisdiction of the Court. 67In support, Sell and Parker relied principally on the decision in Helman v Byron Shire Council (1995) 87 LGERA 349 and Remath Investments (No 6) Pty Ltd v Botany Bay City Council [No 3] [1999] NSWLEC 50. It is therefore incumbent to analyse these decisions in some detail. 68Helman concerned an application for designated development, namely, the enlargement of a quarry. Section 77 of the EPAA was headed "Making of development application" and sub-section 3(d) provided that where the application was in respect of designated development it had to be ("shall") accompanied by an EIS in the prescribed form. In that case, the application was exhibited with an EIS but not a fauna impact statement. The council publicly advertised the application pursuant to the exhibition obligations contained in s 84 of the EPAA. The fauna impact statement was subsequently provided to the council. Without readvertising the application, the council determined the application by granting development consent. An objector appealed in Class 1 of the Court's jurisdiction, relevantly contending that the development application was invalid because of the failure to comply with s 77 and the exhibition requirements under the Act. The appeal was dismissed at first instance on the basis that invalidity was avoided because the fauna impact statement was available when the council made its decision. 69The Court of Appeal (Handley JA, with whom Kirby ACJ and Priestly JA agreed), held that the late lodgement of the fauna impact statement did not comply with the statutory requirement that such a document be available for inspection and consideration for the public. It rejected the argument that the subsequent Class 1 appeal to this Court cured the invalidity because "the powers of the Land Court on a merits appeal are generally no greater than those of the consent authority" (at 359). Thus just as the council was bound to refuse consent because of non-compliance with essential preconditions, "the Land Court on a merits appeal will be in no better position" (at 359). 70In Remath (No 6), Talbot J was concerned with an application for leave to re-open to adduce further evidence in the context of a remitter from the Court of Appeal (Botany Bay City Council v Remath Investments (No 6) Pty Ltd [1998] NSWCA 43) to redetermine a development application for remediation works. The Court of Appeal had upheld an appeal against a decision of this Court to grant a remediation consent in circumstances where the EIS attached to the development application was deficient in respect of the vibration consequences of the proposed works, and therefore, did not provide the objectors or potential objectors with a real opportunity to make submission on those impacts. 71In the course of Talbot J's judgment he referred to the decision in Maybury on behalf of Kurri/Weston District Concerned Citizens Action Group v Minister of Planning and Alumino Australia Pty Ltd (1995) 87 LGERA 154, where in judicial review proceedings Stein J held that a development consent granted by the Minister for an aluminium dross plant was invalid due to non-compliance with notification provisions contained in s 84(1) of the EPAA. His Honour went on to reject the submission that the breach could be remedied by affording the Minister the opportunity of attending to his statutory notification obligations by notifying the occupiers of neighbouring properties (at 163). However, Stein J made the following salient observation (at 164): This does not mean that the whole process need begin again. There is no reason why the development application and environmental impact statement cannot be relied upon by the applicant, and the Minister go about the process of complying with s 84 and the other relevant provisions of Pt 4 of the Act.... They remain afoot and it is not suggested that they are defective. 72In Remath (No 6) Talbot J distinguished Maybury and applied Helman instead on the basis that in the former case there was no challenge to the validity of the development application, only the consent. Accordingly, Talbot J held that because the development application was invalid, there was no appealable decision before him until a further determination, based on any new material lodged by the applicant (such as a supplementary EIS) and exhibited by the council, had been made by the council, or there was a deemed refusal (at [20]). This was not to say that there had been no development application, rather, there had been no valid consideration by the council of that application. Until the council was in a position to consider the application properly in accordance with the statutory regime, there could be no exercise of its discretion and hence no appeal from that exercise. It was therefore Talbot J's view that there was no jurisdiction to determine the development application (at [23]). 73Curiously, in so concluding his Honour then went on to remark that (at [24]-[25]: 24. The basis for an appeal is the determination or deemed refusal of a development application by the council irrespective of whether the EIS is valid (Calvin v Carr (1979) 1 NSWLR 1). Once the appeal is lodged, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the council had in respect of the development application (s 39(2) of the Land and Environment Court Act). 25. Arguably the Court might abide the submission of an amended or supplementary EIS and further exhibition. However, the Court does not itself have the necessary facilities to carry out the administrative function of receiving and exhibiting an EIS, the giving of notices under s 84 or receiving submissions in respect of the development application. Nor am I persuaded that it has the power to direct the council to carry out those administrative functions in class 1 proceedings. 74But because there had already been eight days of hearing, in order to facilitate the efficient disposal of issues in the future the Court adjourned the hearing to permit the applicant to, if it elected, lodge further documents and for the council to, if it chose to do so, re-exhibit them. This would not, he opined, usurp a function of the Court under s 39(2) of the LEC Act, which did not, according to Talbot J, contemplate "the administrative functions of processing, exhibition and notice...as necessary for the purpose of hearing and disposing of the appeal" (at [26]). 75Subsequent to the hearing of the present application, Craig J published his reasons in Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146; (2013) 197 LGERA 238. Ironlaw concerned a summary dismissal application of an appeal under s 97(1)(b) of the EPAA on the ground that the development application was not accompanied by the necessary EIS. The appeal was brought on the basis of the council's deemed refusal of the application under s 82(1) of the EPAA. At the time the appeal was lodged, the council claimed that the development application was invalid because the development proposed was designated development requiring an EIS. Ironlaw Pty Ltd ("Ironlaw") ultimately accepted this contention and, after the appeal was commenced, commissioned the preparation of an EIS, which in due course was exhibited. The council sought summary dismissal of the appeal on the basis that it was incompetent because there was no properly constituted development application by reason of the absent EIS. It further submitted that because there had been no properly constituted development application "lodged" with the council, the deemed refusal provisions of the EPAA had not been engaged. 76His Honour rejected the council's arguments on the basis that unlike cases such as Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; (2000) 111 LGERA 446, the requirement that a development application be "lodged", rather than "made" in a prescribed form and manner, did not necessarily require strict compliance with the statutory requirements as to the content of the application, and hence, the absence of an EIS at the time of lodgement did not mean that the provisions of s 82(1) of the EPAA or the Court's jurisdiction under s 39(2) of the LEC Act (at [51]-[73]) were not engaged. There were therefore no restrictions on the Court directing the council to take such administrative steps as were necessary to address the public notification of the development application and the EIS. 77In arriving at this conclusion, by analogy, Craig J drew upon the line of authority (cited at [46]) that has held that the requirement for the consent of the owner of the land to be included in the development application is a requirement that may be satisfied at any time prior to determination of the development application (at [71]-[73]). Implicit in these decisions was, according to his Honour, the following proposition (at [47]): 47 Implicit in that line of authority is the proposition that the absence of the document evidencing the land owner's consent, as a document required to be contained in or with the development application, did not deny the existence of the application as a "development application" within the meaning of the EPA Act nor deny the jurisdiction of the Court to entertain an appeal under s 97 when the land owner's consent had not been provided at the time at which the appeal to this Court was commenced. While some of the authorities cited involved challenges to the power of a council, as the consent authority, to process and determine an application when the land owner's consent had not accompanied the development application as lodged, other decisions did involve the determination by the Court that the proceedings before it by way of appeal under s 97 could proceed, notwithstanding the absence of land owner's consent when the appeal was instituted (see, for example, the decision of Hemmings J in Amacon Pty Ltd v Concord Municipal Council (2 December 1987, unreported), cited by Stein JA at [6] in Remath Investments. 78The "critical time" for both the provision of landowner's consent and the provision of an EIS was the time of the determination of the application (at [73]) and in neither instance did the failure to satisfy either requirement render the development application "ineffective" or "invalid", instead it was simply "incomplete" (at [51], [52] and [71]). 79It followed that the defective development application lodged with the council nevertheless lawfully engaged the provisions of s 97(1)(b) of the EPAA because the application was ultimately deemed to have been refused by the operation of s 82(1) of that Act.

The Court Does Not Have Jurisdiction to Entertain the Appeal Under s 97(1)(a) of the EPAA 80From the discussion of the foregoing authorities, it is clear that while the determination by the council to refuse to grant its consent to the DA is invalid by reason of the failure to properly notify or exhibit the EIS, the same cannot be said of the DA itself. That is to say, the DA was, at the time the council made its determination on 17 December 2012, defective but not ineffective or invalid. 81This was also the position as at the time the appeal was commenced on 22 December 2012 in this Court. Again, that is to say, by reason of the failure to comply with the statutory requirements with respect to notification and exhibition, the "determination" of the council referred to in s 97(1)(a) of the EPAA was invalid, whereas the DA itself was simply imperfect or incomplete. 82The determination made by the council on 17 December 2012 being invalid, it was no determination at all and it must follow that the jurisdiction of the Court to entertain an appeal under s 97(1)(a) of the EPAA was not enlivened at the time the appeal was commenced. This is because the applicant has never received notice of "the determination of that application" pursuant to that provision. 83Moreover, and consistent with the reasoning in Ironlaw (at [95]-[97]), if there was no jurisdiction to hear the appeal under s 97(1)(a) of the EPAA by reason of the absence of a valid determination by the council, any subsequent attempt to cure the invalid determination by the proper exhibition and notification of the EIS cannot retrospectively confer upon the Court jurisdiction where it had none. Once the Court decides that it lacked jurisdiction at the time at which proceedings were commenced the only order the Court could make is to dismiss the appeal.

The Court Has Jurisdiction to Entertain the Appeal Under s 97(1)(b) of the EPAA 84But this is not the end of the matter. The applicant further argued that, and drawing support from Ironlaw in particular, the jurisdiction of the Court was nonetheless enlivened pursuant to s 97(1)(b) of the EPAA insofar as there had, by reason of the invalidity of the determination by the council on 17 December 2012 and the subsequent effluxion of time under s 82(1) of the EPAA, been a deemed refusal by the council of the DA. 85Section 82(1) of the EPAA states as follows: 82 Circumstances in which consent taken to have been refused (1) A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires. 86Clause 113 of the EPA Regulations relevantly provides: 113 Applications taken to be refused (1) For the purposes of section 82 (1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within the "deemed refusal period" , being: (a) 40 days, except in the case of development referred to in paragraph (b) or (c), or (b) 60 days, in the case of: (i) designated development, or (ii) integrated development (other than integrated development that, pursuant to State Environmental Planning Policy No 62-Sustainable Aquaculture , is Class 1 aquaculture development), or (iii) development for which the concurrence of a concurrence authority is required, or (c) 90 days, in the case of State significant development. (2) The deemed refusal period is measured from: (a) the date the development application is lodged with the consent authority ... 87I agree with the applicant that the fact that the council determined to refuse the DA and communicated its decision to it does not preclude it from now relying on the deemed refusal provisions under the EPAA to ground jurisdiction for the Class 1 appeal. This is because, at the risk of repetition, an invalid determination is no determination at all. In short, there has been no binding decision by the council that precludes an alternative possible jurisdictional basis for the proceedings under s 97(1) of the EPAA. 88I also agree with the applicant that applying the reasoning in Ironlaw, the inexorable conclusion is that the Court has jurisdiction to hear the Class 1 appeal by reason of the deemed refusal of the council of the DA. That the amended EIS was required to be properly exhibited and notified does not detract from the fact that an imperfect but nevertheless valid development application was "lodged" within the meaning of cl 113(2) of the EPA Regulations. As Craig J observed in Ironlaw, the purpose of the combined operation of s 82(1) of the EPAA, cl 113(2) of the EPA Regulations and s 97(1)(b) of the EPAA, is to afford the applicant the opportunity of having the Court determine a development application where the consent authority fails to identify the absence of information or required material to accompany a development application within the identified time period (at [69]), or in the present case, fails to properly notify or exhibit those materials. 89Once this is accepted, then, as his Honour stated (at [70]): 70 The provisions of the EPA Act and Regulation to which I have latterly referred, clearly contemplate a circumstance where the process of assessment of a development application by a consent authority has not been concluded or even commenced at the time at which a right of appeal under s 97(1)(b) of the EPA Act is properly exercised. Once the appeal has been commenced pursuant to the subsection, the Court has the power to exercise the functions of the Council in hearing and disposing of the appeal (Land and Environment Court Act 1979, s 39(2)), while the Council retains the power to determine the application "without prejudicing the determination of the appeal by the Court" (EPA Act, s 82(2) and (3)). There is no restriction implicit in the statutory provisions upon the Court directing the Council to take such administrative steps as may be necessary to address, for example, the public notification of a development application, whether that publication be required by a provision such as s 79 of the EPA Act or under the provisions of an adopted development control plan requiring notification of new development applications. The likelihood that such administrative steps are required after an appeal has been commenced, being steps ordinarily undertaken by a consent authority as part of its function when considering a development application, must clearly have been within the contemplation of the legislature when enacting the "deemed refusal" provisions of the EPA Act. 90Sell and Parker did not submit that the reasoning in Ironlaw was "clearly wrong", rather it submitted that it did not apply to the present appeal because the appeal ceased to exist once it was recognised that the determination was invalid by reason of an absence of power to determine the DA by dint of s 80(9) of the EPAA. Thus because the council had no power to determine the DA, there was no right of appeal that had properly been exercised and the Court had no jurisdiction other than to declare the determination of the council to refuse the DA invalid. 91As stated above, this analysis is unarguably correct with respect to the purported determination made by the council refusing the DA. However, it ignores the fact that there is a valid DA that has been lodged with the council and that, by reason of the operation of cl 113 of the EPA Regulations and s 82(1) of the EPAA, there is an alternative mechanism by which the DA can be refused, in the circumstance where the actual refusal has failed for want of validity. 92Sell and Parker submitted that, as a matter of construction, the applicant could not rely upon a deemed refusal by the council to confer jurisdiction on the Court because the reference to a "development application" in s 82(1) of the EPAA was a reference to a valid application, or one that was capable of being determined. In the present case, because of the operation of s 80(9) of the Act, the DA was not capable of being determined because of the prohibition placed on the council from determining the DA until after the submission period in s 79(1)(a) had expired, such period being still extant due to the failure of the council to properly exhibit the amended EIS. 93In my opinion, this construction of s 82(1) ought not to be accepted for several reasons. First, the DA is capable of being determined, albeit once the amended EIS has been exhibited and notified in accordance with s 79(1) of the EPAA. That is to say, it is not rendered indeterminable, or invalid, by the council's failure to notify and exhibit the amended EIS, rather, this step has simply not yet occurred. Just as the development application in Ironlaw did not, in the absence of any requirement that it be "made" in a "prescribed form and manner", cease to be a development application merely because an EIS did not accompany it, neither does the failure to exhibit and notify the amended EIS accompanying the DA in the present case invalidate or transmogrify the DA into some other form of application outside the purview of s 82(1). 94Second, it is because of the prohibition contained in s 80(9) of the EPAA that the council cannot, and therefore, has not, determined the DA within the relevant period prescribed in cl 113 of the EPA Regulations. As Ironlaw made clear, the deemed refusal period is measured, relevantly, from the date the development application is lodged with the consent authority, and all that is required for this purpose is a development application that conforms with the definition of that term in s 4 of the EPAA, which this DA does. Were it otherwise, the council could, in the absence of an actual refusal, simply not exhibit the documents accompanying a development application and the application would be left in limbo for an indefinite period. This is plainly contrary to the legislative purpose embodied in s 82 of the EPAA. 95Sell and Parker relied upon the decision in Building Recyclers Investments Pty Limited v Marrickville Council [2003] NSWLEC 331; (2003) 131 LGERA 413 in support of its general position. In that case, the applicant appealed against an actual refusal by the council in respect of a development application for designated development. The Court held that where the development application was not accompanied by an EIS at the time the council exercised its decision-making function by refusing the application, there was no valid decision against which the applicant could appeal. 96But as Craig J noted in Ironlaw (at [78] and [79]), it does not appear that the Court in Building Recyclers Investments was called upon to consider any argument based on the effect of cl 113(2) of the EPA Regulations and whether the development application was ineffective for the purpose of engaging s 82(1) and hence s 97(1)(b) of the EPAA. Furthermore, although referred to, neither the reasoning in Helman and Remath, nor the conclusion that the development application, as opposed to the determination of the council, was invalid, were the subject of detailed analysis, and the description deployed in respect of the latter conclusion is now inconsistent with subsequent authorities. In any event, Sell and Parker expressly disavow any suggestion that the DA itself was invalid. It follows that Building Recyclers Investments is distinguishable with respect to the arguments concerning jurisdiction founded under ss 82(1) and 97(1)(b) of the EPAA. 97Although the Court of Appeal in Helman indicated that where the consent authority is bound to refuse development consent because of an essential pre-condition, "the Land Court on a merits appeal will be in no better position" to determine the development application (at 359-360), in that case there was a continuing failure to publicly exhibit the fauna impact statement and no steps were taken in the merits appeal to comply with the requirement to do so. Hence on appeal the Court was not, in that instance, in any better position than the consent authority and the Class 1 appeal could not cure the invalidity. But that is not this case. 98Sell and Parker also argued, by analogy, that the absence of jurisdiction in this case flowing from the invalidity of the council's determination was consistent with the result in Class 4 proceedings where a declaration of invalidity is made. The Court does not keep those proceedings on foot in case the application is determined again by a consent authority, rather the matter returns to the council so that the application can be pursued and a fresh determination made. 99But such a comparison is not of assistance, in my view. First, unlike a Class 4 hearing, a Class 1 merits hearing is a rehearing de novo and the Court has much broader functions and powers conferred upon it by ss 38 and 39 of the LEC Act (especially s 39(2) of that Act: see the discussion by Biscoe J on the broad ambit of this provision in Goldberg v Waverley Council [2007] NSWLEC 259; (2007) 156 LGERA 27 at [26]-[41]). 100Second, even in Class 4 proceedings, the Court has the power under Pt 3 Div 3 (especially s 25B) of the LEC Act to suspend the operation of a consent in whole or in part, or order the conditional validity of a development consent, as an alternative to making a declaration of invalidity. While it is true that such orders are not often made in cases where there has been a failure to comply with statutory notification and exhibition requirements, they nevertheless exist (see, for example Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141). 101Finally, Sell and Parker submitted that it better accorded with the just, quick and cheap resolution of the proceedings (see s 56 of the Civil Procedure Act 2005) to dismiss the appeal now rather than leave the proceedings in abeyance for an "indeterminate length of time". However, given that the proceedings have been on foot since 16 December 2012, and that, as evidenced by the preparation and time the parties have already expended for a merits appeal involving three contradictors, it cannot be said with confidence that the overriding purpose enshrined in s 56 of the Civil Procedure Act would be best served by an outcome requiring the commencement of fresh proceedings. This is particularly so in circumstances where no owner's consent has been granted by Allied to undertake the works necessary for the proposed development and the applicant may be required to seek the granting of an easement pursuant to s 40 of the LEC Act in any event. 102There is no reason to expect, with a suitably crafted timetable permitting the council to properly notify and exhibit the amended EIS, that the matter cannot proceed expeditiously. In Ironlaw the consequences of the failure to comply with the necessary statutory steps with respect to the EIS accompanying the development application were dealt with by remitter to the Registrar's List "so that directions for further conduct of the proceedings can be given" (at [99]). Having found that the Court has the jurisdiction to hear and determine this appeal, there is no reason why a similar order cannot be made in these proceedings.

Conclusion and Orders 103In light of the reasoning above, it follows that the two questions posed for separate determination must be answered as follows: (a)the DA has not been exhibited as required by s 79 of the EPAA; and (b)the Court has jurisdiction to determine the DA as amended otherwise than by way of refusal. 104As a consequence, the Class 1 appeal filed by the applicant may be continued as a current appeal and it will be necessary for the matter to be referred to the Registrar's list so that directions for the further conduct of the proceedings can be made. These directions will include a requirement that the amended EIS be notified and exhibited in accordance with the statutory requirements of the EPAA. 105I therefore make the following orders: (1)that the matter be listed for further directions before the Registrar on 15 August 2014; and (2)that the exhibits be returned.

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. Decision last updated: 07 August 2014

Environmental Protection and Biodiversity Conservation Act 1999(Cth)

(2000) 111 LGERA 446

(2003) 131 LGERA 413

(2011) 181 LGERA 141

(2013) 197 LGERA 238

(2012) 190 LGERA 143

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