Barr Property and Planning Pty Ltd v Cessnock City Council

Catchwords

(2019) 241 LGERA 321 Morrison Design Partnership v North Sydney Council [2007] NSWLEC 802(2007) 159 LGERA 361 Qube Holdings Ltd v Residents Against Intermodal Development Moorebank Inc [2017] NSWCA 250(2017) 96 NSWLR 80 R v A2R v MagennisR v Vaziri [2019] HCA 35

Judgment (8 paragraphs)

[1]

Solicitors: MBM Legal + Conveyancing (Applicants) Shaw Reynolds (First Respondent) Sparke Helmore (Second Respondent) Corrs Chambers Westgarth (Third Respondent) File Number(s): 2020/332596

[2]

Objectors Seek to Participate in Class 1 Proceedings

By notice of motion filed 21 January 2021, three objectors, Black Hill Industrial Pty Ltd ("BHI"), Hunter Land Industrial Pty Ltd ("Hunter Hill"), and Stevens Holdings Pty Ltd ("Stevens Holdings") (together, "the objectors"), sought the following relevant orders in the context of a Class 1 appeal: 1. That within 7 days of the date of these orders, the Cessnock City Council notify the following persons of these proceedings pursuant to s.8.12(1)(a) of the Environmental Planning and Assessment Act 1979: a. Black Hill Industrial Pty Ltd ACN 615839739; b. Hunter Land Pty Ltd ACN 067111737; c. Stevens Holdings Pty Ltd ACN 002386450. … 3. In the alternative that Black Hill Industrial Pty Ltd ACN 615839739 be joined as a party to these proceedings pursuant to a. s.8.15(2) of the Environmental Planning and Assessment Act 1979: and/or b. r.6.24(1) of the Uniform Civil Procedure Rules. 4. Further in the alternative that Black Hill Industrial Pty Ltd ACN 615839739 be heard pursuant to s.38(2) of the Land and Environment Court Act 1979;

Must the Council Notify the Objectors Pursuant to s 8.12(1)(a) of the EPAA?

As foreshadowed above, the objectors' entitlement to a notice in respect of the Class 1 appeal turns on the proper construction of s 8.12(1)(a) of the EPAA.
In order to properly construe that section it is necessary to examine other provisions within Div 8.3 of the EPAA (which concerns appeals from development consents).
The Class 1 appeal is brought pursuant to s 8.7(1) of the EPAA: 8.7. Appeal by applicant - applications for development consent (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.
Because the development is designated development, the commencement to interpreting s 8.12(1)(a) of the EPAA is s 8.8, which states that: 8.8. Appeal by an objector - designated development applications (1) This section applies to the determination of an application for development consent for designated development (including any State significant development that would be designated development but for section 4.10(2)), being a determination to grant development consent, either unconditionally or subject to conditions. (2) A person who duly made a submission by way of objection during the public exhibition of the application for development consent (an objector) and who is dissatisfied with the determination of the consent authority to grant consent may appeal to the Court against the determination.
Pursuant to s 8.8(2), a person who made a submission by way of objection during the public exhibition of an application for development consent and who was dissatisfied with the determination of the consent authority to grant consent, may appeal to the Court against the determination.
It was accepted by all parties that in the absence of a grant of consent, the present appeal is not an appeal brought under s 8.8 of the EPAA.
Rather, the relevant provision by which the objectors sought a right to be heard was pursuant to s 8.12(3) of the EPAA. Although that section does not in its terms effect joinder, it nevertheless permits an objector to participate in the hearing of the appeal (The Next Generation Pty Ltd v Independent Planning Commission [2020] NSWLEC 70 at [73] per Pain J). If such an entitlement exists and a notice of appeal is given, the party must make an application to the Court to participate in the appeal within 28 days after the notice is given (s 8.12(3)).
Relevantly, s 8.12(1) and (3) of that Act provide that: 8.12. Notice of appeals to be given and right to be heard (1) The following are entitled to be given notice of an appeal made under this Division - (a) an objector, in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division, (b) an applicant for development consent and the consent authority, in the case of an appeal under this Division by an objector concerning the application for development consent, (c) a Minister or public authority, in the case of an appeal concerning an application for development consent in respect of which the concurrence of the Minister or public authority is required under this Act, (d) the relevant approval body (within the meaning of Division 4.8), in the case of an application for development consent that involves the approval body. … (3) Anyone who is given any such notice of appeal is, on application to the Court within 28 days after the notice is given, entitled to be heard at the hearing of the appeal if not already a party to the proceedings.
Correspondence between the Council and the objectors makes it plain that no notice has been given.
Each of the objectors are objectors for the purpose of s 8.12 of the EPAA.
In addition, it must be recalled that in the present case the development application the subject of the appeal was not approved. That is, there has been no grant of consent.
The element about which the parties differ is the phrase "in respect of which the objector has a right of appeal under this Division" contained in s 8.12(1)(a).
Put simply, the respondents to the notice of motion (with the exception of TNSW, who offered no submissions on the motion and was excused from participating in the interlocutory hearing) submitted that the objectors do not have a "right of appeal under" Div 8.3 because the only potential right of appeal is pursuant to s 8.8(2), which does not apply because the appeal is concerned with a determination to refuse - and not "to grant" - consent. Absent any other right of appeal engaging s 8.12(1) and (3), no entitlement to a notice arises.
The objectors, however, contended that the proper construction of the phrase "in respect of which the objector has a right of appeal under this Division" in s 8.12(1)(a) of the EPAA, was that those words did not attach to the determination of a development application, but were instead concerned with "an application for development consent" in that section in respect of which an objector has a right of appeal under the Division.
Viewed this way, an objector to an application for development consent has a right of appeal in the s 8.8(1) circumstance of an application for development consent for designated development. This is because s 8.12(1)(a) is directed to a class of application for development consent rather than a particular instance of the grant of a development consent. It follows that the objectors are persons to whom notice is required to be given pursuant to s 8.12(1)(a).
Were it otherwise, the objectors argued, the right provided for in s 8.12(1)(a) would be limited to an appeal by an applicant in respect of an approval for designated development only where the applicant was "dissatisfied with the determination of the application by the consent authority" (s 8.7(1)). That is, the notice prescription would be enlivened only where there was a development approval and where the objector also had a right of appeal. This restricted construction was antithetical to the statutory scheme provided for in Div 8.3. In circumstances where the objector has a right of appeal in any event (see s 8.8(2)) the words "entitled to be heard at the hearing of the appeal if not already a party to the proceedings" in s 8.12(3) would be rendered nugatory. This position was contrary to the findings of Pain J in The Next Generation.
The principles of statutory construction are well known. They were recently reiterated in R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2020) 373 ALR 214 (at [32] to [37] per Kiefel CJ and Keane J (footnotes omitted)): 32. The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. 33. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. 34. This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight. 35. The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v R60, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation. 36. These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision. 37. None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC v Bankstown, that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.
Applying these principles of statutory interpretation to the text, context, and purpose of s 8.12(1)(a) of the EPAA means that the objectors' submissions must be rejected. An orthodox construction of s 8.12(a) demands a search for the "right of appeal" referred to therein and relied upon by the objectors as the basis of their entitlement to be given a notice under the chapeau to s 8.12. That search concludes with reliance on s 8.8 of the EPAA.
Again, a plain reading of the text of s 8.8(1) indicates that the right of appeal in respect of designated development lies only where there has been a determination to grant consent. In the present case, the Class 1 appeal concerns the refusal to grant consent. The requirement that there be a grant of consent is expressly repeated in s 8.8(2) for avoidance of doubt. This is reinforced by the text of s 8.8(1) which refers to "a determination to grant development consent" and not just to a class of "development application". In other words, it is the determination that is decisive of whether or not a right of appeal arises under Div 8.3 of the EPAA.
There is no warrant, either textually, contextually, or purposively to ignore the obvious language of s 8.8 for the purpose of construing s 8.12(1)(a) of the EPAA. To do so would be in error. The text of s 8.8 is unambiguous in this regard.
The objective intent of the legislature speaks against the construction mooted for by the objectors. An objector has a right to be given a notice when there are otherwise no proceedings because the consent authority has approved the development application. But if the consent authority declines to grant consent, it is the consent authority who is the proper contradictor and respondent if the proponent appeals. This is because the legislation considers that the objector has effectively won. If an objector seeks to participate in the appeal in these circumstances, it can do so utilising the joinder mechanism provided in s 8.15 of Div 3.
No unfairness results from such an approach, which is consistent with the generally recognised position that there is a limitation on objector designated development appeals (see Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147; (2019) 241 LGERA 321 at [288] and Qube Holdings Ltd v Residents Against Intermodal Development Moorebank Inc [2017] NSWCA 250; (2017) 96 NSWLR 80 at [3]).
I accept the submissions of the Council that, contrary to the assertion of the objectors, the phrase "entitled to be heard at the hearing of the appeal if not already a party to the proceedings" in s 8.12(3) of the EPAA is not made redundant on this preferred interpretation of s 8.12(1)(a) because there are other parties who can receive notices under s 8.12(1).
Finally, to the extent that the objectors drew support from The Next Generation, that case offers little assistance because, unlike the present case, a notice was given in those proceedings.
Because the objectors are not entitled to be given a notice under s 8.12(1)(a) of the EPAA for the reasons given above, they are not entitled to be heard at the Class 1 appeal.
This finding obviates the need for the Court to decide the more difficult issue of the underlying jurisdictional foundation for the relief sought in order 1 of the notice of motion, namely, the power of the Court in Class 1 of the Court's jurisdiction to order the Council to notify the objectors pursuant to s 8.12(1)(a) of the EPAA. None of the parties before the Court were able to assist the Court as to the source of the Court's power to make an order framed in this way. The answer to the question was not immediately apparent from a reading of either the EPAA or the LEC Act.
Barr Properties submitted that the source of the power to make such an order was that contained in s 56 of the Civil Procedure Act 2005 ("the CPA"). That section relevantly states as follows: 56. Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
There is no conceivable way that s 56 of the CPA confers a power on the Court sitting in Class 1 of the Court's jurisdiction to make order 1. Were it otherwise, s 56 would provide a legislative override obviating most of the divisions of power and jurisdictional functions of the Court enacted by the LEC Act. The provision would be more than just plenary in its scope and operation; it would be omnipotent. No such legislative intention may be objectively discerned from its text, context, or purpose, in short because none exists.

Joinder of BHI as a Party to the Appeal

In the alternative, BHI sought an order that it be joined either pursuant to s 8.15(2) of the EPAA or pursuant to r 6.24 of the UCPR.
Section 8.15(2) of the EPAA states that: 8.15. Miscellaneous provisions relating to appeals under this Division (2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion - (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that - (i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal.
Rule 6.24(1) of the UCPR provides: 6.24. Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.
It is difficult to conceive of a situation where joinder under s 8.15(2) of the EPAA would not also result in joinder under r 6.24(1) of the UCPR, given the broader reach of the latter provision. Accordingly, it is convenient to deal with joinder under s 8.15(2) of the EPAA first.
In the leading case of Morrison Design Partnership v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 Preston J considered the factors enlivening the exercise of the discretion to join third persons as parties in Class 1 appeals (at [42]-[61]). In particular, his Honour said (at [42] and [43]): 42. I note at the outset that s 39A is facultative in the sense of enabling the Court to join a person to proceedings under the Environmental Planning and Assessment Act of the types listed in s 39A of the Land and Environment Court Act who would not otherwise have a right to be a party to such proceedings. Under the Environmental Planning and Assessment Act, persons who object to development proposed in a development application or to a modification of a development consent, have no right to be joined as a party to proceedings unless the development is classified as designated development. Objectors to development applications for designated development do have a right of appeal under s 98(1) of the Environmental Planning and Assessment Act and have a right to be joined to an appeal in respect of such development by the applicant for development consent under s 97(4). 43. This is relevant to note because the legislature has drawn a distinction between the two types of development, designated and other development, and the rights of public participation, including the right to be a party to an appeal to the Court for the different types of development. This needs to be kept in mind when considering exercising the power under s 39A. The power under s 39A is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to appeals under ss 96, 96AA, 96A and 97 by dissatisfied applicants for or holders of development consent. Rather, the circumstances in which the Court may order a person to be joined as a party to proceedings of the types listed in s 39A are limited to the circumstances set out in paragraphs (a) and (b) of s 39A. It is to those paragraphs, therefore, that I turn.
The Chief Judge further observed in Morrison that (at [53] and [54]): 53. A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission. 54. The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings.
More recently, and to similar effect, Preston J opined as follows in Avalon Beach Property Pty Limited ACN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council [2017] NSWLEC 130; (2017) 227 LGERA 393 (at [10]): 10. It is true that the Court can of its own volition raise any issue apart from the issues raised in the statements of facts and contentions by both the consent authority and an applicant to an appeal. However, for a contention such as the one raised by the neighbour as to the proper characterisation of the purpose of the development, the Court's consideration of that issue would be inadequate. It is necessary to have the party making the case that the proper characterisation of the development is one which would cause the development to be prohibited. If neither the applicant nor the consent authority is raising that contention, there will be no contradictor. The matter will simply be raised but the Court will have inadequate argument about the issue. There is no other way in which this issue can be properly put before the Court than allowing the joinder of the neighbour.
The principles in Morrison Design have been applied on numerous occasions in this Court, most recently in Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194 (at [12]-[15]) and Yarranabbe Property Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 122 (at [28]-[39]).
Barr Properties resisted the making of an order for joinder on the basis that BHI would not raise any issue that had not been previously raised by the Council.
The Council, however, did not oppose an order for the joinder of BHI.
BHI submitted that when regard was had to the Statements of Facts and Contentions ("SOFAC") filed by the parties to the Class 1 appeal, it was apparent that the appeal would raise issues that were not likely to be sufficiently addressed if it was not joined as a party.
In particular, BHI seeks to agitate consideration of the integrated access from John Renshaw Drive to the BHI land. That is, the BHI concept plan approval approved the construction of a signal controlled intersection on John Renshaw Drive at the western access to the BHI land. The BHI land does not immediately adjoin John Renshaw Drive but does adjoin the site the subject of the appeal (the BHI land is separated from John Renshaw Drive by a thin parcel of land owned by Hunter Water Corporation). The subdivision includes the proposed construction of a western three-way signalised intersection on John Renshaw Drive from the BHI land constructed on the frontage of that land. Immediate access from the subject site to the western signalised intersection on the BHI land is also proposed, provided that appropriate conditions are imposed in order to ensure adequate intersection capacity for use by the BHI land.
TNSW notified the Council in March 2019 that the proposed eastern and western signalised access on the BHI land would be approved and that the most appropriate location for the main access into the Emerging Black Hill Precinct should be determined through a site masterplan and traffic impact assessment.
But in October 2020, TNSW notified the Council that it could not support the eastern access signalised intersection as proposed because, first, it was in conflict with the western access signalised intersection contemplated by the concept plan approval that benefits the BHI land, and second, because there was no available traffic impact assessment or modelling which demonstrated that three signalised intersections were able to be accommodated on John Renshaw Drive at that location.
According to BHI, the Council's SOFAC insufficiently addresses the fact that the concept plan approval is an instrument of approval under the EPAA and any subsequent consent on the BHI land must be consistent with it, especially to give effect to the coordinated precinct access road from John Renshaw Drive. Moreover, the Council has made a submission dated 5 February 2021 objecting to the proposed location of the western access signalised intersection near the BHI land because its location will not offer an appropriate level of certainty to the developer and will significantly impact the timing, lot yield, subdivision layout, and cost of the development.
In its SOFAC, TNSW contends that the facts, matters, and circumstances set out in that document demonstrate that insufficient information to assess the Class 1 development application has been provided by Barr Properties and that consent cannot be granted "based on the information currently provided in support of the DA". Contentions 1, 2, 3, 4, and 5 (out of 10) all expressly assert that the DA does not adequately address the needs and/or impacts of the proposed signalised intersection and the BHI land access. Only contention 6 is concerned with the substantive "suitability" of the site for the proposed development, and that contention does no more than repeat the particulars set out in contentions 1 to 5, to argue that the development application has not demonstrated that the subject site is suitable to accommodate the proposed western and eastern signalised intersections on John Renshaw Drive. Furthermore, the particulars of contentions 1 to 5 are repeated in contentions 7 and 8.
In other words, the majority of the contentions raised by TNSW are concerned with the adequacy of the information provided in respect of the signalised intersection affecting the BHI land, and not the actual suitability of the proposed development. It is for this reason that BHI submits that it ought to be joined as a party, namely, to provide the necessary information to make an informed determination.
In my opinion, it is tolerably clear that if joined, BHI will raise issues concerning the signalised intersection and access to its land that will not be adequately raised in the Class 1 appeal, especially when the interests of both the Council and TNSW are joined in opposing the development application. Barr Properties did not suggest that it would fulfil the role of contradictor in the manner proposed by BHI.
The issues that BHI seeks to agitate (that is, its draft contentions) include whether: 1. The location of the proposed signalised intersection in the Broaden DA is not appropriate and consent should not be granted because: a. It is too close to the signalised intersection approved in the BHI concept plan approval, or alternatively as proposed in the BHI DA. b. If approved the co-location in close proximity of two intersections on John Renshaw Drive is inappropriate from a traffic safety and movement perspective c. It would be likely to prevent development of the BHI land in accordance with the BHI land concept approval d. It would require a significant change to the lot layout and internal road design of the development of the BHI land proposed in the BHI DA. e. It would potentially make development of the BHI land dependant on the construction of the intersection by others. f. It is not in the public interest to place at risk the ability to develop the BHI land in accordance with the BHI land concept plan approval having regard to the dedication of land pursuant to that approval. 2. The BHI land concept plan approval is an instrument of approval under the EP&A Act and it has not been adequately considered as part of the development application.
Both in relation to ss 8.15(2)(a) and 8.15(2)(b)(i) of the EPAA, BHI should also be joined because of the contribution that the BHI concept plan approval has already made to environmental planning in this State which would be potentially prejudiced by the granting of a consent that is inconsistent with it. First, two signalised intersections in such close proximity on John Renshaw Drive are unlikely to be supported by TNSW. Second, any risk to the ability to develop the BHI land in accordance with the BHI concept plan approval is not in the interests of justice having regard to the dedication of approximately 545 ha of land pursuant to the concept plan approval and associated planning agreement. Third, the practical impacts of the proposal include the risk that the proposed development of the BHI land will require a significant redesign to address the relocation of a signalised intersection in a manner not in conformity with the concept plan approval. Fourth, joinder will be in the public interest to permit modelling undertaken by the objectors to be considered in the analysis of the impact of the proposed development on the BHI land.
As Martin Ball (the solicitor for, among other objectors, BHI) deposed in his affidavit sworn 21 January 2021, BHI will suffer financial detriment if the signalised intersection proposed in the development application is not approved. This financial disadvantage arises from the potential inability to further develop the BHI land in accordance with concept plan approval. In particular, there will be an inability to fully implement and market lots in the subdivision. The development will be dependent on the construction by others of signalised intersections and road connections to it across the adjoining land the subject of the Class 1 proceedings. In addition, there will be a need to prepare a fresh development application for a different division of the BHI land if the signalised intersections are not permitted where presently proposed.
In light of this unchallenged evidence on behalf of BHI, it is unquestionably in the interests of justice that BHI be joined as a party to the proceedings pursuant to s 8.15(2)(b)(i) of the EPAA.
Finally, it is in the public interest pursuant to s 8.15(2)(b)(ii) of the EPAA that BHI be joined as a party. As is apparent in the judgment of Horton C in Stevens Holdings (No 2), the requirement for a coordinated approach to access to John Renshaw Drive is important to the industrial land release area.

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Judgment (8 paragraphs)

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