Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor

Practice and Procedure :- notice of motion - strike-out application

Development Application: - relevant consent authority - absence of landowner's consent - when landowner's consent may be given KEY ISSUES:

Conveyancing Act 1919 (NSW), s 88K Environmental Planning and Assessment Act 1979 (NSW), ss 76A(a), 80(3) Interpretation Act 1987 (NSW), ss 34(1), 34(2)(f) Land and Environment Court Act 1996 (NSW), s 40 LEGISLATION CITED: Local Government Act 1993 (NSW) Roads Act 1993 (NSW), s 145(3) Environmental Planning and Assessment Regulation 2000 (NSW), cl 49(1) Supreme Court Rules 1970 (NSW), Pt 13, r 5 State Environmental Planning Policy No. 71 - Coastal Protection, cl 10 and Sch 2

A Class Property Pty Limited v Parker [2004] NSWLEC 398; Besmaw Pty Limited v Sutherland Shire Council (2003) 127 LGERA 448; Billgate Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436; Botany Bay City Council v Remath Investments (2000) 111 LGERA 446 ; Currey v Sutherland Shire Council (2003) 129 LGERA 223; Debbula Pty Limited v The Owners - Strata Plan 6964 [2003] NSWSC 189; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 ; Hillpalm Pty Limited v Tweed Shire Council [2002] NSWCA 332; CASES CITED: Kirkjian v Towers (Waddell CJ, NSWSC (Eq Div), 6 July 1987, unreported; Maule v Liporoni & Anor (2002) 122 LGERA 140; Mulyan Pty Limited v Cowra Shire Council and Anor (1999) 105 LGERA 26; North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470; Owners Strata Plan No. 50411 v Cameron North Sydney Investments Pty Limited [2003] NSWCA 5; R v Bolton; Ex parte Beane (1987) 162 CLR 514; Rose Bay Marina Pty Limited v The Minister for Urban Affairs and Planning (2002) 122 LGERA 255; Sydney City Council v Claude Neon Limited (1989) 15 NSWLR 724; Woolworths Limited v Bathurst City Council (1987) 63 LGRA 55

APPLICANT: Dr J E Griffiths SC and J M Jagot (barrister) SOLICITORS: Minter Ellison

FIRST RESPONDENT: LEGAL REPRESENTATIVES: A E Galasso (barrister) SOLICITORS: Christine Hanson Department of Infrastructure, Planning and Natural Resources

SECOND RESPONDENT: T F Robertson SC SOLICITORS: Abbott Tout

JUDGMENT:

• 1 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BECTON CORPORATION PTY LIMITED V MINISTER FOR INFRUSTRUCTURE, PLANNING AND NATURAL RESOURCES & Anor [2005] NSWLEC 197

JUDGMENT 1 The applicant, Becton Corporation Pty Limited ("Becton"), has brought proceedings claiming a declaration that the first respondent, the Minister for Infrastructure, Planning and Natural Resources ("the Minister"), is the consent authority for a development application lodged by it on 22 December 2004.

2 This is motion by the second respondent, Byron Shire Council, ("the Council"), for an order that the proceedings be dismissed. That is, this is the hearing of a strike-out application brought by the Council under Pt 13, r 5 of the Supreme Court Rules 1970 (NSW), which applies in this Court.

3 Becton wishes to develop land which it owns at Byron Bay as a tourist facility. It has lodged a development application with the Minister, claiming that its proposed development is State significant development under cl 10 and Sch 2 of State Environmental Planning Policy No. 71 - Coastal Protection . The Minister is the consent authority for State significant development: s 76A(a) of the Environmental Planning and Assessment Act 1979 (NSW) (the " EP&A Act "). The Council contends that the proposed development is not State significant development, and as a consequence the Council is the consent authority for the development application. Because of the potential uncertainty regarding the correct consent authority, Becton commenced the proceedings seeking various declarations including a declaration that the Minister is the consent authority for the development application.

4 The development application identifies the land to be developed as certain nominated lots. Those lots include lot 100 in deposited plan 849102, which is not owned by Becton. That lot was a public road under the Roads Act 1993 (NSW) and was vested in the Council under s 145(3) of that Act. By notice published in the Government Gazette on 6 October 1995 the road was closed. The land comprising the road, remained vested in the Council as lot 100 and is deemed to be operational land under the Local Government Act 1993 (NSW). The land remains in its state as a constructed road and is presently used as such by the public. It provides a primary means of access from the public road system to the beach, which is vested in the Crown, and it also provides access to Becton's land. Becton wishes to continue to use Lot 100 for its current use as an access road, to upgrade it and upgrade its drainage.

5 A development application must be made only by the owner of the land to which the development application relates, or by any other person with the consent in writing of the owner of that land: cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) (the " EP&A Regulation "). On 29 March 2005, the Council resolved that, as the registered proprietor of Lot 100, it " does not grant landowner's consent to the development application purportedly lodged by Becton Corporation Pty Limited with the Minister for Infrastructure, Planning and Natural Resources on 22 December 2004 ". The Council also resolved to instruct its solicitors to file a Notice of Motion seeking to have the proceedings brought by Becton dismissed and to seek costs.

6 Mr T F Robertson SC, appearing for the Council, contends that Becton must prove all the facts which are necessary to enable the Court to make a declaration ( Besmaw Pty Limited v Sutherland Shire Council (2003) 127 LGERA 448 at par [177]), and one such fact is that the applicant has made a development application for land including lot 100. If no such development application has been made, then the facts which must exist for making the declarations now sought by Becton cannot be made out. The Council contends that a development application which is not accompanied by the landowner's consent is incomplete and ineffective; the requirement for an owner's consent is jurisdictional; and that the trial will be futile. The Council submits that the Court must refuse Becton's application for a declaration, as Becton cannot prove each fact and matter required to be established for declaratory relief.

7 As Mr Robertson submits, it is settled law that a development application which is not accompanied by the landowner's consent is not made within the meaning of cl 49(1) of the EP&A Regulation ( Hillpalm Pty Limited v Tweed Shire Council [2002] NSWCA 332 at par [11]; Rose Bay Marina Pty Limited v The Minister for Urban Affairs and Planning (2002) 122 LGERA 255 at pars [13]-[25]); and the requirement for the landowner's consent is jurisdictional because it is a right of veto ( North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 at 477, 478 and 480; Mulyan Pty Limited v Cowra Shire Council and Anor (1999) 105 LGERA 26 at 34; Owners Strata Plan No. 50411 v Cameron North Sydney Investments Pty Limited [2003] NSWCA 5 at par [42]).

8 Dr J E Griffiths SC, who appears with Ms J M Jagot for Becton, submits that the provisions of s 88K of the Conveyancing Act 1919 (NSW) and s 40 of the Land and Environment Court Act 1996 (NSW) are relevant. The Council's refusal to give landowner's consent to the making of the development application is not the end of the matter. Section 88K and/or s 40 provide another route. Lot 100 is presently used as a road. Becton wishes to use lot 100 for the purpose of access and for drainage. It requires a right of way and easement over lot 100 for those purposes. It can apply to either the Supreme Court under s 88K or to this Court under s 40 for those easements. Consequently, a right of veto by the landowner would no longer be available.

9 As Dr Griffiths also pointed out, the absence of an owner's consent at the time of lodgement of a development application can be rectified at any time before the determination of the development application: Woolworths Limited v Bathurst City Council (1987) 63 LGRA 55 at 62; Botany Bay City Council v Remath Investments (2000) 111 LGERA 446 at 449-450; Maule v Liporoni & Anor (2002) 122 LGERA 140 at 155; Rose Bay Marina at par [24]. If it turns out that the development application is not made in law by the time the development application is determined (whether by the consent authority or by the Court on appeal), then the consequence is that the appeal must be dismissed. The fact that the absence of the landowner's consent can be rectified at any time prior to the determination of the development application is confirmed by Currey v Sutherland Shire Council (2003) 129 LGERA 223 at par [35], in which Spigelman CJ (Sheller JA and Foster AJA concurring), said:

I see very little, if any, scope in this legislative scheme for the concept of a "valid" application. Citizens are entitled to apply to authorities for whatever they like. … There is no relevant prohibition, express or implied, which impinges upon the application making process. 10 The absence of landowner's consent is not necessarily fatal until the determination of the development application. Moreover, if the Court finds that the correct consent authority is the Council then the consent may be given by the Court in any appeal to the Court: Sydney City Council v Claude Neon Limited (1989) 15 NSWLR 724 at 732.

11 In the Supreme Court there is authority that an easement under s 88K will not be granted for a proposed development which is not the subject of a development consent ( Debbula Pty Limited v The Owners - Strata Plan 696 4 [2003] NSWSC 189). Any development consent granted by the consent authority being the Minister would presumably have to exclude lot 100, and may, depending upon the circumstances, be granted either as a deferred commencement consent under s 80(3) of the EP&A Act (pending the creation of the easement), or as a conditional consent under s 80(1) of that Act (conditional upon the creation of the easement).

12 If the application were to come to the Court by way of an appeal, then the s 40 power would appear to be available. I note that in A Class Property Pty Limited v Parker [2004] NSWLEC 398, Talbot J held, at par [7], that there is no jurisdiction in the Court for an application for an easement under s 40 until there has been a determination by the granting of a development consent. However, in Billgate Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436, Bignold J held that the power under s 40 is not so limited. Bignold J focussed on the words " [I]If the Court has determined to grant development consent …" (s 40(1)). Bignold J noted, at par [16] that the power conferred by s 40 is " obviously beneficial and facultative and it should accordingly be liberally construed… ". His Honour held at par [17]:

In this context, there is no justification for construing narrowly the condition specified in subsection (1) which enlivens the power, especially where the statutory language employed naturally covers a case where the Court has either granted development consent or decided (" determined ") to grant development consent but has withheld making final orders for appropriate reasons. 13 It seems that Bignold J's attention was not drawn to the second reading speech of the Attorney-General (28 May 2002) when introducing the Bill which amended the Land and Environment Court Act 1996 (NSW) in 2002 and which substituted s 40 as originally enacted with the present s 40:

The bill will also give the court the power to impose easements over land in certain circumstances, similar to the power vested in the Supreme Court by section 88K of the Conveyancing Act. It is anticipated that the Land and Environment Court will adopt much the same approach to applications for easements as that adopted by the Supreme Court. However, a person will only be able to apply to the Land and Environment Court for an order imposing an easements over land in proceedings where that person has been granted a development consent on appeal, and the court is satisfied, in addition to the types of matters set out in section 88K, that the easement is reasonably necessary for the person's development to be carried out in accordance with the consent. 14 Recourse may be had to extrinsic material such as the second reading speech to either confirm that the meaning of a provision is the ordinary meaning conveyed by the text, or if the provision is ambiguous, or obscure, or if the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or is unreasonable: Interpretation Act 1987 (NSW), ss 34(1), 34(2)(f)). That is not however, the case here. If s 40 were not intended to operate until a person has been granted a development consent on appeal then the section could have clearly said so. But the words used are not " [i]f the Court has granted development consent ", but rather are " [i]f the Court has determined to grant development consent ". The careful and thorough analysis by Bignold J shows that an order under s 40 could be available in the event of the Court " determining to grant development consent " to a pending development application. The judgement of Talbot J, however, to which I have referred, is not supported by any reasons.

15 Moreover, notwithstanding the statement made in the second reading speech set out above, the words of a minister must not be substituted for the text of the law. In R v Bolton; Ex parte Beane (1987) 162 CLR 514 Mason CJ, Wilson and Dawson JJ said, in relation to a Minister's second reading speech, at 518:

That speech quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. … It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law. 16 I thus prefer the views of Bignold J in Billgate that the statutory language of s 40(1) covers a case where the Court has either granted development consent or decided to grant development consent but has withheld final orders for appropriate reasons.

17 If any easement is granted, then Becton can require the Council to grant the necessary landowner's consent: Kirkjian v Towers , Waddell CJ, NSWSC (Eq Div), 6 July 1987, unreported; Owners Strata Plan No. 50411 at [36]-[42].

18 In these circumstances I accept the submission made on behalf of Becton that the Council's notice of motion, based on a lack of utility argument, falls far short of the standard required to satisfy a court that the proceedings ought to be struck out. It cannot be said that the trial will be futile. The Council's application does not come near the classic test for a strike out application; that is, that Becton's application for declaratory relief is " so obviously untenable that it cannot possibly succeed ", or is " so manifestly faulty that it does not admit of reasonable argument ", or " to stand would involve useless expense ": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. Moreover, as submitted by Mr A E Galasso, appearing for the Minister, the Council's motion does not determine the dispute. The fundamental question remains as to whether the Minister or the Council is the consent authority.

19 The orders are: (1) The second respondent's notice of motion dated 29 March 2005 is dismissed. (2) The costs of the notice of motion are reserved. I hereby certify that the preceding 19 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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