Bardetta & Anor v Baulkham Hills Shire Council

LEGAL REPRESENTATIVES: RESPONDENT Mr T To (Solicitor) SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT: IN THE LAND AND Matter No. 11180 of 2000 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 30 July 2001

Anthony Bardetta and Frances Bardetta Applicants v Baulkham Hills Shire Council Respondent

1. The applicants lodged a development application for consent under the provisions of the State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability ("SEPP 5") on 27 January 2000. The development application was determined by refusal of development consent on 18 September 2000.

2. SEPP 5 was amended by State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability (Amendment No. 1) published in the NSW Government Gazette on 17 November 2000. Amendment No. 1 commenced 14 days after publication in the Gazette, namely on 1 December 2000.

3. On 14 December 2000 the applicants commenced these class 1 proceedings by way of an appeal against the determination by council.

4. When it was gazetted on 2 January 1998, SEPP 5 contained a transitional provision in cl 26 in the following terms:- A provision of this Policy does not apply to or in respect of the determination of a development application made, but not determined, before the commencement of the provision. 5. Amendment No. 1 did not amend cl 26.

The respondent has filed a notice of motion dated 25 May 2001 whereby it seeks a preliminary determination of the following point of law:- Do the provisions of State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability, as in force immediately before amendments gazetted on 17 November 2000, apply to the determination of these proceedings?

The applicants appear in person by their agent B T Goldsmith Planning Services Pty Limited.

By letter dated 4 June 2001 the applicant's agent advised the respondent's solicitors that the applicants do not disagree with the statement of facts presented by the respondent. However, they confirm that they "do not intend to participate in the question of law" raised.

The applicants were not represented at the hearing of the notice of motion.

The solicitor for the respondent presented detailed written submissions supported by oral argument.

Mr To, who appears for the respondent, outlined three questions that the Court needed to address in order to make a finding on the preliminary point of law. The questions are as follows:- (1) The threshold question of whether cl 26 of SEPP 5 is ambulatory in the sense that it continues to have effect in respect of amendments to the original SEPP 5;

(2) If the answer to question (1) is "yes", what is the trigger for a development application to be saved under cl 26, in particular, where there is an appeal to the Court against a prior determination by the council; and

(3) If cl 26 acts as a savings provision in respect of the amendments, whether it applies to the whole or part of the amending provisions which included the introduction of new clauses; the introduction of new subclauses to existing clauses; the replacement of existing clauses and subclauses and amendments to existing clauses.

The respondent submits that the words of cl 26 should be construed according to their natural and ordinary meaning as referring to each provision of SEPP 5 as separate elements. The argument relies upon the use of the words "before the commencement of the provision" to show that the draftsperson contemplated that the provisions of SEPP 5 could commence operation at different times.

Amendment No. 1 introduced new cl 6A and cl 13A and new subclauses 14(e), (f) and (g) and 19(3). It is self evident that each of these provisions commenced after January 1998. There is no common sense reason why replacement of cl 13 and subclauses 12(1) and (2); 24(2)(b) and 25(a) do not fall into the same category for the purposes of the present argument as they are in effect new provisions. The amendments made to existing clauses may require some closer consideration (see the discussion in Statutory Interpretation in Australia, D C Pearce and R S Geddes, 4 th Edition, 7.1; 7.2; 7.3 and in particular Beaumont v Yeomans (1934) 34 SR (NSW) 562 at 569 and Ku-ring-gai Municipal Council v Attorney-General for the State of New South Wales (1957) 99 CLR 251).

However, Bignold J considered the exact point in respect of cl 26 of SEPP 5 in Druitts Developments Pty Ltd v Gosford City Council [2001] NSWLEC 96, unreported. His Honour stated his clear conclusion in par 41 and par 42 as follows:- 41. Accordingly, its prima facie meaning and operation is in respect of a development application "made, but not determined" before the commencement of the Policy. It is true that cl 26 does not refer (as it could have) in terms to "the Policy", as an entirety, but rather refers to "a provision of this Policy". However, nothing turns on this choice of language, because (i) "the Policy" comprises the sum of each of the provisions contained within it; and (ii) the natural meaning of the text is that it is referring to a "provision of the Policy" as it was originally enacted (ie made and brought into force pursuant to s 34(5) of the EP&A Act). This natural construction of the text is supported by the clear fact (attested by both the heading Part 4 of SEPP No 5 (which is part of the text: see s 35(1) of the Interpretation Act 1987) of cl 26 itself) that the provision is a transitional provision of the conventional kind when one legislative or delegated legislative regime is repealed (in whole or part) and is replaced by another regime.

42. The context and clear transitional purpose of cl 26 in my judgment, firmly shuts out the Council's argument that the clause should be given an ambulatory operation in the manner I earlier have indicated.

The respondent has invited the Court not to follow the decision of Bignold J in Druitts for the following reasons:- (1) His Honour's conclusion about nothing turning on the use of the words "a provision of this Policy" departs from the presumption that words used consistently should be given the same meaning consistently, and conversely where the legislature could have used the same words but did not, a different meaning is to be ascribed to the different words ( The Registrar of Titles of the State of Western Australia v Franzon & Ors (1975) 132 CLR 611). There is no analysis of the original SEPP 5 evident from His Honours judgment which would form the grounds for departing from the presumption;

(2) The words of cl 26 should be interpreted according to their natural and ordinary meaning;

(3) The use of the words "before the commencement of the provision" clearly contemplate that provisions of the Policy can and do commence in operation at different times; and

(4) Relying upon s 34(1)(a) and (b) of the Interpretation Act 1987, the council refers to explanatory notes issued by the Department of Urban Affairs and Planning in respect of SEPP 5 (Amendment No. 1) which expressly referred to cl 26 as applying to any amendment made by the amending Policy. It also should be noted that Circular No. B3 issued by the Department in January 1998, when SEPP 5 was made, refers to cl 26 as ensuring that provisions in the Policy do not apply to development applications lodged before the Policy commenced.

There is sufficient strength in the arguments raised by the respondent to accept that the submitted propositions are, at least in this instance, arguable. It is unfortunate that I do not have the benefit of argument from an opposing party.

Nevertheless, having brought my own judgment to bear, I am not so convinced that the judgment of Bignold J in Druitts was so manifestly wrong that I should not follow it, as the decision of another judge of co-ordinate jurisdiction ( Michael Realty Pty Ltd& Anor v Carr (1975) 2 NSWLR 812 at 820).

Question (2) - Whether the development application was made, but not determined, before the commencement of the amendments

Following my determination that I will follow the decision by Bignold J in Druitts , it is not strictly necessary to determine this question. However, the respondent has referred the Court to a number of decisions which appear to conflict. Having heard submissions it is appropriate for me to deal with them by way of a response.

In Jokona Pty Limited & Anor v Liverpool City Council (Bignold J, NSWLEC, 4 June 1997, unreported), the relevant clause was in a draft Local Environmental Plan. It provided that earlier instruments shall continue to apply to a development application if the application was made but had not been determined before the appointed day. In that case the development application had been determined by the council when it refused development consent. Referring to his earlier decision in Jan Manzie v Willoughby City Council (Bignold J, NSWLEC 4 December 1995, unreported), where the savings clause in the planning instrument applied in respect of any development application that was "made but had not been finally determined", Bignold J decided in Jokona that the subject savings provision did not apply to the development application before him because it had been determined by council.

In a decision made a few months prior to Manzie, Bignold J considered the effect of s 87 of the Local Government Act 1993. This section then referred to the making of a minor amendment to an application "at any time before the application is determined" . In that case ( Rancast Pty Ltd v Leichhardt Council (1995) 89 LGERA 139), His Honour expressed the opinion that the section would appear to allow the applicant to amend the building application "at any time before the Court determines the pending appeal" . After referring to the effect of s 39(2) and s 39(5) of the Land and Environment Court Act 1979 ("the Court Act"), whereby the decision of the Court on appeal is deemed to be the final decision of the council, His Honour said it may be reasonable to conclude that the Court's decision is also a relevant "determination" of the application. His Honour re-embraced the opinion expressed in Rancast during the course of his recent judgment in Ervin Mahrer and Partners v Strathfield Municipal Council [No 2] [2001] NSW LEC 140, unreported at par 98.

The respondent has drawn the Courts attention to the decision of Cowdroy J in Gameplan Sports & Leisure Pty Limited v South Sydney City Council & Ors [2000] NSWLEC 112, unreported. In that case Cowdroy J had to consider the effect of cl 11 and cl 15 of the Environmental Planning and Assessment Savings and Transitional Regulations 1998. Clause 11 referred to "any development application made, but not determined by the consent authority". Cowdroy J observed that the operation of both cl 11 and cl 15 are predicated upon the absence of a determination by the consent authority of a development application. After referring to s 39(1) and s 39(5) of the Court Act and s 93(4) of the unamended Environmental Planning & Assessment Act and the decision of this Court in Overton Investments Pty Limited v Sutherland Shire Council (Talbot J, NSW LEC, 26 June 1992, unreported), His Honour held that although council made a "determination" in respect of the application that decision was not, in view of Gameplan's appeal, a determination for the purpose of cl 11 and cl 15. He interpreted both clauses as applicable to a determination which finally disposes of the application for development consent.

The respondent identified some potential consequences of treating the determination by the council as the relevant determination for the purposes of cl 26 in SEPP 5 as follows:- (a) Taken to its logical conclusion, the effect of the transitional provision would not depend on when an application was filed with Council, but when a Council determined the application. (b) In a hypothetical SEPP 5 example, an appeal could be instituted with the Court in respect of a deemed refusal - in which case there would be no 'determination' by either the Council or the Court - with the result that the transitional provision in clause 26 would mean the old SEPP 5 applied. (c) However, on a determination by the Council - say, by refusal, the application of Jokona would mean that the application had been 'determined' for the purpose of the transitional provision, and therefore the provisions of the new SEPP 5 would apply. This could mean that the Court could hear an entire case, be reserved and then have its work rendered a nullity by Council determining an application before judgment was handed down. (d) This conclusion is further reinforced by considering the further example of where a Council determines an application by grant of consent whilst an appeal to the Court is pending. On the logic of Jokona, the Council's determination would take place at a time where there had not been a 'determination' to date, so the provisions of the old SEPP 5 would apply to its determination. However, if the applicant were dissatisfied with the conditions and instituted (or continued with) an appeal, the hearing by the Court would take place at a time when there had been a 'determination' (by Council) and so the provisions of the new SEPP 5 would seem to apply.

Having regard to the potential for an absurd result, the respondent submits that the Court is entitled to embark upon a "purposive" interpretation of cl 26 ( Mills v Meeking& Anor (1990) 169 CLR 214 at 235). The respondent refers to the object stated in s 5 of the Environmental and Planning Assessment Act 1979 ("the EP&A Act") "to encourage…promotion and co-ordination of the orderly and economic use and development of land" . Therefore, the prospect of conflicting outcomes, depending upon whether a council has made a determination or an appeal is lodged on the basis of a deemed refusal, the approach adopted in Jokona could lead to a result which is contrary to the stated object of the EP&A Act.

If it had been necessary to determine the question in these proceedings the approach in Gameplan is, on balance, consistent with the legislative framework under which determinations are made by consent authorities and the Court. Notwithstanding the decision in Jokona Bignold J appears to have been inclined to the same view in Rancast and Ervin Mahrer although in a slightly different context.

The answer to the preliminary question raised as a point of law

It must follow from the decision in Druitts, which relates to the same clause of SEPP 5 (and the amendments thereto), that the answer to the question framed as a preliminary point of law by the respondent is in the negative.

It is appropriate for the matter to be listed before the Registrar for further call-over and directions preparatory to setting down for hearing in accordance with this conclusion.

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