Blacktown City Council v Satmell Holdings Pty Ltd

Satmell Challenges the Making of Two Contributions Plans

1. The facts giving rise to both the judicial review proceedings and the s 56A appeal are set out in Satmell (at [5]-[42]). To reiterate, they are adopted without express duplication for the sake of brevity here. They were not controversial and were largely contained in a statement of agreed facts tendered in both sets of proceedings.
2. It is, however, relevantly worth repeating that before the Commissioner Satmell appealed a refusal by the Council of the DA for: 1. the construction of a residential apartment building of three storeys, containing 62 apartments and 77 car spaces in a basement car park; 2. the construction of a multi-dwelling housing development comprising 92 three storey town houses; and 3. a torrens title subdivision to create two allotments for residential development and public roads, road and infrastructure works to create new public roads and construction of a temporary road and deceleration lane to facilitate temporary access to the site from Windsor Road.
3. At issue before the Commissioner was the imposition of s 94 contributions as a condition of consent. Satmell argued that a proposed condition for contributions in the amount of $35,000 per lot should not be imposed because the relevant Contributions Plans (Contributions Plans 22L and Contributions Plan 22W) had not been correctly made. The Commissioner agreed (at [113]-[121]).

The s 56A Appeal

1. Because the issues raised in Satmell that were common to both the Class 4 proceedings and the s 56A appeal (that is, the joint issues) were resolved wholly in the Council's favour, this appeal must be upheld for the reasons set out in Satmell.
2. However, in case the findings and conclusions on the joint issues are incorrect, and in light of the importance of the discrete issues and arguments raised in the s 56A appeal, the Court has proceeded to determine those discrete issues; that is, the issues that were not jointly raised in the s 56A appeal and the Class 4 proceedings.
3. In this s 56A appeal the Council essentially contended that the Commissioner did not have jurisdiction in Class 1 to determine whether a contributions plan sought to be relied upon by a consent authority for the purpose of imposing a contributions condition was a correctly made "contributions plan" within the meaning of the Environmental Planning and Assessment Act 1979 ("EPAA"), and moreover, that the Commissioner was required to take judicial notice of the Contributions Plans. I have found in favour of the Council in both respects.

Power to Approve the Contributions Plans

1. The legislative framework giving rise to the making and approval of the Contributions Plans is, with the exception of the provisions quoted below, set out in Satmell (at [[43]-[52]) and is likewise adopted and applied absent express replication in these reasons.

The Exercise of Power of by a Commissioner in Class 1 of the Court's Jurisdiction

1. In addition to the provisions referred to above, s 4.16 of the EPAA relevantly states: 4.16 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application … (11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.
2. Section 4.17(1)(h) of that Act says that a condition of a development consent may be imposed if "it is authorised to be imposed under s 4.16(3) or (5)…or section 7.11, 7.12, 7.24 or 7.32".
3. Section 8.7 of the EPAA relevantly provides that: 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. (2) For the purposes of this section, the determination of an application by a consent authority includes: (a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or (b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.
4. The appeal referred to in s 8.7 (previously s 97) of the EPAA is assigned to be heard and disposed of in Class 1 of the Court's jurisdiction by reason of s 17(d) of the LEC Act, which states: 17 Class 1 - environmental planning and protection appeals The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of the following: … (d) appeals, objections and applications under sections 75K, 75L, 75Q, 75W (5), 95A, 96, 96A, 97, 97AA, 98, 98A, 109K, 121ZK, 121ZM, 121ZS and 149F of the Environmental Planning and Assessment Act 1979…
5. Commissioners, who are permitted to engage in merits review as an exercise of administrative power, are not given delegation in relation to matters assigned to Class 4 (judicial review) of the Court's jurisdiction under s 20 of the LEC Act.
6. In particular, in respect of Class 4 matters s 20(2) provides that: 20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function,…
7. Section 22 of the LEC Act confers a general mandate on the Court for the resolution of the matters before it: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
8. In relation to the general exercise of jurisdiction, s 33 of the LEC Act allocates the Court's jurisdiction as follows: 33 Exercise of jurisdiction generally (1) Classes 1, 2 and 3 of the Court's jurisdiction shall, in accordance with this Act, be exercised by a Judge or one or more Commissioners. (2) Classes 4, 5, 6 and 7 of the Court's jurisdiction shall, in accordance with this Act, be exercised by a Judge.
9. Division 4 of Pt 4 of the LEC Act confers specific powers for matters assigned to Classes 1, 2 and 3 of the Court's jurisdiction. This includes the delegation of matters in those classes of jurisdiction to Commissioners of the Court pursuant to s 36 of the LEC Act: 36 Delegation to Commissioners (1) Where proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction (other than proceedings that are being dealt with under section 34A or 40), the Chief Judge: (a) except as provided by paragraph (b) or subsection (1B), may, of the Chief Judge's own motion or on the request of a party, direct that the proceedings be heard and disposed of by one or more Commissioners; … … (2) Subject to this Act and the rules, the Commissioner or Commissioners hearing and disposing of the proceedings pursuant to this section shall have and may exercise the functions of the Court (other than its functions under this section). (3) The decision of the Commissioner or Commissioners shall be deemed to be the decision of the Court. …
10. The powers of the Court on appeal in Classes 1 to 3 are relevantly described in s 39 of the LEC Act: 39 Powers of Court on appeals (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. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body: (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) in a case where the concurrence or approval has been granted - the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (6A) (Repealed) (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. …
11. Finally, given its centrality to the disposition of the issues raised in this appeal, it worth repeating s 7.20 of the EPAA, which states as follows: 7.20 Contributions plans - judicial notice, validity etc (1) Judicial notice is to be taken of a contributions plan and of the date on which the plan came into effect. (2) It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed. (3) The validity of any procedure required to be followed in making or approving a contributions plan is not to be questioned in any legal proceedings except those commenced in the Court by any person within 3 months after the date on which the plan came into effect. (4) The amendment or repeal, whether in whole or in part, of a contributions plan does not affect the previous operation of the plan or anything duly done under the plan.

Discrete Issues Arising in the s 56A Appeal

1. In addition to the joint issues relevant to the s 56A appeal determined in the Satmell decision, the parties agreed that the following further discrete issues arose for separate resolution in these proceedings: 1. whether a Commissioner of the Court in proceedings in Class 1 of the Court's jurisdiction can determine whether the Contributions Plans sought to be relied on by the Commissioner for the purpose of imposing a condition requiring the payment of a monetary contribution were a "contributions plan" within the meaning of the EPAA ("the contributions plan issue"); 2. whether the Commissioner was required to take judicial notice of the Contributions Plans and the date on which they came into effect ("the judicial notice issue"); and 3. whether the Commissioner erred on a question of law by rejecting the Council's submissions in relation to the effect of ss 7.20(1), (2) and (3) of the EPAA, and therefore, whether the Commissioner erred in law by accepting that there was "evidence to the contrary" as provided for in s 7.20(2) of that Act ("the contrary evidence issue").

The Decision of the Commissioner

1. In dealing with the submissions of the parties on the issues identified above, the Commissioner reasoned as follows (at [111]-[121]): 111. In Hammersmith Management Pty Limited ACN 084 393 644 v Lake Macquarie City Council (2003) 124 LGERA 63 Lloyd J clarified the separation of issues between Class 1 and Class 4 of the Court's jurisdiction as follows: 1 This is a case about monetary contributions sought by the respondent, Lake Macquarie City Council ("the council") under s 94 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). There are two applications before the Court: (1) a challenge to the validity of a contributions plan adopted by the council under s 94B of the EP&A Act (such challenge falling within Class 4 of the Court's jurisdiction); and (2) an appeal against a condition of a development consent granted by the council which requires the payment of a monetary contribution in accordance with the contributions plan (such appeal being within class 1 of the Court's jurisdiction). … 25 The conclusion confirming the validity of the contributions plan does not necessarily also determine the appeal against the imposition of the particular condition of consent in this case. Whilst the contributions plan may validly include contributions for the public amenity of a conservation corridor, the questions remain as to whether the particular development "will or is likely to require" the provision of such a corridor, or "increase the demand" for such a corridor, as required by s 94(1) of the EP&A Act. 112. The current proceedings are an appeal under s. 8.7 and the applicant seeks to overturn the Council's refusal of development consent, of which one issue in contention is the acceptability of conditions of such a determination. 113. By reference to the originating process, the applicant does not seek a declaration that the contributions plans are invalid (which would fall within judicial review). Rather the Class 1 Application seeks for the Court to remake the Council's determination of the application under s. 4.16 of the Act. 114. Applying the proceeding I am satisfied that in determining an application it is relevant to consider the question of the relevant contributions plan from which a condition (under s. 4.17 of the Act) is able to be levied. 115. The definition of a contributions plan is made clear in the Act. It states a "contributions plan" means a contributions plan approved under s. 7.18. 116. The power to "approve" a contribution plan is limited by the conditions detailed in the Act and the Regulations. At s. 7.18(3) it states: The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans. 117. I accept the submissions of Mr Galasso (at paragraphs [98] to [100]) that Contributions Plans No. 22 L - Rouse Hill Land and 22 W - Rouse Hill Works are not "contributions plans" as defined by the Act. My reasoning is as follows: the definition of contributions plan is one approved under s. 7.18. s. 7.18(1) provides that such a plan is to be made "subject to and in accordance with the Regulations" cl. 26 of the Regulations requires a contributions plan to be made in accordance with the relevant Practice Note and that such a plan cannot be inconsistent with a direction under s. 7.17 of the Act. cl 6A of the 2017 Amended Direction applies as the Contributions Plan 22- Area 20 Precinct is a specified contributions plan, therefore a maximum of $35,000 applies for each dwelling or each residential lot. The relevant Practice Note is the 2018 Practice Note. The Contributions Plans No. 22 L - Rouse Hill Land and 22 W do not satisfy the requirements of the Regulations and the Amended Direction: the Amended Direction requires Councils to submit any contributions plan that proposes to charge a contribution rate above the cap to IPART for assessment, reporting and referral to the Minister as detailed in cl. 5(3) of the Amended Direction. the plans seek to impose a rate higher than the cap, as detailed in Exhibit 2. The process detailed at Figure 1 of the 2018 Practice Note details steps of both IPART assessment and Ministerial advice prior to the adoption of final contribution plans (Exhibit Y). This process has not been concluded. The Regulation addresses the review of Contributions Plans at cl. 32, as follows: (3) A council may make the following kinds of amendments to a contributions plan without the need to prepare a new contributions plan: (a) minor typographical corrections, (b) changes to the rates of section 7.11 monetary contributions set out in the plan to reflect quarterly or annual variations to: (i) readily accessible index figures adopted by the plan (such as a Consumer Price Index), or (ii) index figures prepared by or on behalf of the council from time to time that are specifically adopted by the plan, (c) the omission of details concerning works that have been completed I am satisfied the review undertaken by Council is outside this remit of this clause and is a 'new contributions plan' (cl. 3.2(3) of the Regulation. Therefore the plan is required to be made in accordance with the regime outlined in the Act. Importantly s. 7.18(1) of the Act provides that such a plan is to be made "subject to and in accordance with the Regulations" and the Amended Direction (s. 7117(2) of the Act). Further whilst the 2018 Practice Note provides the following explanation of the process to undertake amendments to IPART assessed contributions plans, the review undertaken by Council is outside this exemption as the plans seek an increase in contributions: If a Council has an existing contributions plan that has been assessed by IPART and the plan is being amended as under cl.32(3) of the EP&A Regulation, then the Direction does not require the Council to resubmit the plan to IPART to continue to charge contributions in accordance with the IPART assessed plan. 118. I have considered the submission of Mr White on the effect of s7.20 of the Act. I note at (1) the section requires 'judicial notice to be taken of a contributions plan and the date on which the plan came into effect'. I am not persuaded that the effect of this clause is that within Class 1 proceedings, where a dispute as to which plan is the correct contributions plan arises, it is inappropriate for the Court to satisfy itself that the plan from which contributions are proposed to be levied is one that has been "approved under section 7.18" as required by the definition and is consistent with a direction of the Minister. I note that s. 7.17(3) of the Act states: (3) A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan. 119. On the basis of the above I am satisfied that a condition requiring payment of a contribution arising from Contributions Plans No. 22 L - Rouse Hill Land and 22 W - Rouse Hill Works cannot be levied under s. 4.17 of the Act. 120. Contributions Plan 22- Area 20 Precinct (In force as at 24 February 2016) has not been repealed in accordance with cl. 32(2) of the Regulation and remains in place. No evidence or submissions have been made to the Court to indicate that this contributions plan is not consistent with the definition of an approved plan under s. 7.18 of the Act 121 The 2017 Ministerial Direction applies to the imposition of contributions in accordance with Contributions Plan 22- Area 20 Precinct which provides a maximum rate of contributions of $35,000/ dwelling or residential lot (refer paragraph [90]).

The Contributions Plan Issue

1. This issue is raised in the Council's s 56A appeal summons at grounds 1 and 2. Essentially it asserts that the Commissioner erred in law by characterising the inquiry that she made as to whether the Contributions Plans were a "contributions plan" with the meaning of the EPAA as an inquiry relevant to an appeal under ss 4.16 and 8.7 of the EPAA, rather than, which was actually the case, an inquiry into the validity of the Contributions Plans, which was outside the scope of her Class 1 jurisdiction.
2. The Council stated that the combined effect of s 8.7 of the EPAA and s 39 of the LEC Act was that the Commissioner was required to consider what conditions were capable of, and should be, imposed by the Court on any consent to the DA, including a condition levying contributions under s 7.11 (contributions towards provisions or improvement of amenities or services), 7.12 (fixed development consent levies), 7.24 (special infrastructure contributions) or 7.32 (affordable housing contributions) of the EPAA. However, the Council submitted that the Commissioner did not merely examine, as she was empowered to do, whether the Contributions Plans were "approved" under cl 31 of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations") for the purpose of imposing a contributions condition, rather she went further and impermissibly considered whether or not the Contributions Plans had been properly prepared in accordance with the EPAA, the EPA Regulations, the amended 2012 Direction and the Practice Note.
3. The Council's arguments were fortified by s 7.20(1) and (2) of the EPAA, which, when read together, precluded (absent "evidence to the contrary") a finding that there was anything defective in its approval (although noting that the Council used the language of 'adopting') of the Contributions Plans.
4. Leaving aside for present purposes Satmell's argument that there was "evidence to the contrary" which rebutted the presumption contained in s 7.20(2) (discussed further below), Satmell contended that the condition making power contained in ss 4.16 and 4.17 of the EPAA was one that was entirely within the remit of the work of the Commission in Class 1 of the Court's jurisdiction. The determination of which contributions plan applied, a matter put in issue by the parties, was a necessary and logically anterior step in the imposition of a condition levying contributions by the Commissioner. This was because absent a contributions plan, there was no power to impose a monetary contributions condition; the existence of the former an inviolable constraint on the exercise of power to impose the latter (Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695 at [15] and [136] and Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 at [12]-[17]).
5. It may be accepted that the Commissioner was required to determine the existence of a contributions plan in order to exercise the function conferred upon her to impose the relevant condition. This is because the source of her power to impose the contributions condition was not s 4.17 of the EPAA alone, but also, as correctly submitted by Satmell, the existence of an applicable contributions plan.
6. Were the Commissioner "simply" (to use Satmell's language) inquiring into the source of her power to impose the contributions condition, no error on a question of law would have arisen. As Satmell pointed out, at all times the Commissioner retained a discretion not to impose any conditions whatsoever. But the Commissioner's analysis went much further and in doing so she transgressed into reviewing the lawfulness of the exercise of functions conferred under a planning or environmental law, which is a matter within the exclusive province of Class 4 of the Court's jurisdiction (see ss 20(2)(b) and 33(2) of the LEC Act).
7. Irrespective of the Commissioner's recognition that a declaration of invalidity was outside the scope of her Class 1 jurisdiction (at [113]), this was the practical effect of the Commissioner's reasoning and findings on this issue. By reviewing the Council's exercise of its functions conferred by the EPAA and the EPA Regulations, the Commissioner was determining the lawfulness of the making and adoption by the council of the Contributions Plans in circumstances where she did not have the jurisdiction to do so.
8. The jurisdiction of the Commissioner in the present case was, in administrative law terms, to exercise a merits review function (Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 at [40] per Basten JA, albeit in dissent). This may be contrasted with judicial review, although as Basten JA observed in Bunnings, "the dichotomy reflects an imprecise classification between the functions of a tribunal required to make its own findings of fact, draw the relevant inferences and identify the applicable legal principles (merits review), and the functions of a tribunal which is limited to identifying legal error on the part of the primary decision-maker (judicial review)" (at [40]).
9. Relevantly, his Honour went on to further opine that (at [42]): 42. The language of administrative law does not fit precisely with the exercise being undertaken in the Land and Environment Court, as may be seen from the use of the term "merit review" as opposed to "appeal". On the other hand, the primary decision-maker, being the consent authority, does not hold hearings (as would a tribunal), or make findings of fact; nor does it provide a reasoned justification for a particular outcome. Accordingly, the "appeal" to the Court is not an appeal from a similar body.
10. Nevertheless, in this instance the Commissioner was undertaking, and could only undertake, merits review (Bunnings at [177]). And in doing so (Bunnings at [161] per Preston J): 161. …When undertaking merits review, while the Court is exercising executive or administrative functions and not judicial functions, the manner in which it operates accords more with the judiciary than the executive. It occupies "an uneasy and ambiguous middle ground between the judicial and executive branches of government" (Cane, p 224). The Court, although exercising functions that might be administrative, is under a duty to act judicially, that is to say, with judicial detachment and fairness: Drake v Minister for Immigration and Ethnic Affairs at 585. As Spigelman CJ said in Port Stephens Council v Sansom at [52]: "Although a judicial officer exercising a merits review jurisdiction stands in the shoes of the primary decision-maker, s/he cannot behave in the same ways as the administrator. A court is required to manifest a high level of impartiality, independence and consistency in decision-making."
11. Moreover, as was stated in Bunnings, the making of a discretionary administrative decision must be distinguished from the making of a judicial decision, such as the determination that a contributions plan was not correctly (that is, lawfully) made and adopted by a consent authority having regard to the applicable statutory regime (at [178] per Preston J): 178. …As Brennan J observed in Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643; [1979] AATA 179: "In this respect, the making of a discretionary administrative decision is to be distinguished from the making of a curial decision. Generally speaking, a discretionary administrative decision creates a right in or imposes a liability on an individual; a curial decision declares and enforces a right or liability antecedently created or imposed. The distinction is too simply stated, but it suffices to show that the adjudication of rights and liabilities by reference to governing principles of law is a different function from the function of deciding what those rights or liabilities should be."
12. Appositely, Preston J in Bunnings went on to note that a commissioner is not exercising judicial power in the hearing and disposing of an appeal under s 8.7 of the EPAA for the following reasons (at [182]-[189]): 182. The fact that on an appeal under s 97 now s 8.7 of the EPA Act the function is performed by a court does not change the function from being administrative in nature to judicial. Neither the fact that the Land and Environment Court is a superior court of record nor the fact that its hearing and disposal of the appeal bear 'the trappings of judicial decision making" converts the function being exercised by the Court on the appeal from an administrative to a judicial power: Drake v Minister for Immigration and Ethnic Affairs at 585. 183. Similarly, the fact that the Court is under a duty to act judicially, including with judicial detachment and fairness, in the exercise of its jurisdiction to hear and dispose of the appeal does not indicate that the function of determining the development application the subject of the appeal is judicial rather than administrative. There is a distinction between the nature of the function and how the function is to be performed. A court or tribunal whose functions are purely administrative is under a duty to act judicially: Drake v Minister for Immigration and Ethnic Affairs at 585. 184. The fact that the function exercised in hearing and disposing of the proceedings in Class 1 of the Court's jurisdiction can be, and in practice mostly is, undertaken by one or more Commissioners of the Court (see s 33(1) and s 36(1) of the LEC Act) is another indicator that the function is administrative not judicial. Commissioners of the Court may, but need not, have any legal qualifications: s 12(2) and (2AA) of the LEC Act. A person is qualified for appointment as a Commissioner if the person has, in the Minister's opinion, special knowledge or experience in the areas of the administration of local government or town planning; town, country or environmental planning; environmental science or matters relating to the protection of the environment and environmental assessment; the law and practice of land valuation; architecture, engineering, surveying or building construction; the management of nature resources or the administration and management of Crown lands; land rights for Aborigines and the determination of disputes involving Aborigines; urban design or heritage; as well as law: s 12(2) and (2AA) of the LEC Act. The Minister is to ensure, as far as practicable, that the Court is comprised of persons who hold qualifications across the range of areas specified in s 12(2) and (2AA): s 12(2AB) of the LEC Act. 185. A Commissioner of the Court does not constitute the Court; only a judge can constitute the Court: s 6(1) of the LEC Act. However, the Chief Judge may delegate to a Commissioner or Commissioners the function to exercise the jurisdiction of the Court to hear and dispose of proceedings in Classes 1, 2, 3 and 8 of the Court's jurisdiction and any other function under the LEC Act (see ss 6(2), 30(1) and 36(1) of the LEC Act). In particular, the Chief Judge may direct that proceedings in Class 1 of the Court's jurisdiction are to be heard and disposed of by one or more Commissioners (s 36(1) of the LEC Act). 186. In determining the Commissioner or Commissioners who is or are to exercise the jurisdiction of the Court or any other function under the LEC Act in relation to any proceedings, the Chief Judge is to have regard to the knowledge and qualifications of the Commissioners and to the nature of the matters involved in the proceedings: s 30(2) of the LEC Act. 187. The decision of the Commissioner or Commissioners is deemed to be the decision of the Court: s 36(3) of the LEC Act. 188. The Commissioners are not judicial officers, within the meaning of the Judicial Officers Act: see also Port Stephens Council v Sansom at [68]. Commissioners do not have tenure, and hold office for a term of 7 years: s 12(2A) and (4) and Sch 1 cl 1. A full-time Commissioner is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975 and such travelling and subsistence allowances as the Minister may from time to time determine in respect of the full-time Commissioner: Sch 1 cl 2 of the LEC Act. The process for removal from office for misbehaviour or incapacity is not the process for judicial officers in Part 7 of the Judicial Officers Act but instead the Governor may remove a Commissioner from office for misbehaviour or incompetence: Sch 1 cl 6 of LEC Act. 189. These aspects of Commissioners and their exercise of the jurisdiction and functions of the Court are further indicators that the function exercised by a Commissioner in hearing and disposing of an appeal under s 97 now s 8.7 of the EPA Act is administrative and not judicial in nature.
13. The examination and subsequent determination of the correctness or otherwise of the process by which the Contributions Plans were made and approved (or adopted) by the Council, and the finding by the Commissioner that the process was deficient, that the Contributions Plans were not the correct contributions plans for the purposes of the exercise of her functions under the EPAA, and that contrary to s 7.20 of the EPAA she was entitled to disregard those Plans in imposing the contributions condition, went much further than any orthodox exercise of merits review. Instead, the Commissioner traversed into the forbidden territory of "the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's powers" (Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 per Brennan J), viz, judicial review. In doing so, the Commissioner was therefore purporting to exercise judicial, and not merely administrative, power.
14. In this context, s 22 of the LEC Act provides no succor to Satmell. Its purpose is not to serve as a jurisdictional catch-all having the capacity to remedy want of jurisdiction in a particular class of proceeding. Were it otherwise, ss 17, 20 and 33 of the LEC Act would be rendered all but otiose. The logical corollary of Satmell's reliance on s 22 of the LEC Act would be to weaponise that provision to allow it to be used as a vehicle to permit a commissioner to exercise power that is verboten, namely, judicial power.
15. It is for this reason that while Classes 1, 2 and 3 of the Court's jurisdiction can be exercised by both a commissioner and a judge, only a judge can exercise the power inherent in Classes 4 to 7 of the Court's jurisdiction, that is, judicial power.
16. The potential overlap between Classes 1 and 4 of the Court's jurisdiction has been discussed in several cases, many of which were analysed by Craig J in Australian International Academy of Education Inc v Hills Shire Council [2013] NSWLEC 1; (2013) 196 LGERA 1 (at [99]-[110]). In that decision, his Honour relevantly stated the following (at [99]-[101]): 99. In Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85 a question of law was raised in Class 1 proceedings as to whether a consent had lapsed, having regard to a condition of development consent. The Class 1 appeal was for modification of a development consent. In response to the respondent council's argument that the condition of development consent had caused the consent to lapse, the applicant for modification sought to argue that the condition was, in part, invalid. The council submitted that it was not open in a Class 1 appeal to challenge the validity of the condition as the applicant sought to do. Pain J upheld that submission. At [15] her Honour said: "15. In Maitland City Council v Anambah Homes Pty Ltd [citation omitted] Tobias JA (Spigelman CJ and Ipp JA agreeing on this issue) recognised at [94] that a challenge to the validity of a condition of consent in a Class 1 appeal against the grant of that conditional consent was only made possible by the existence of concurrent Class 4 proceedings which gave the Court power to make a declaration of invalidity of the condition." I will shortly refer to the paragraph in Anambah to which her Honour refers. 100. Prior to the reference to Anambah, her Honour had referred to two earlier decisions of this Court which suggested an inability to declare invalidity of a condition of consent in Class 1 proceedings. Her Honour then continued: "16. All three cases suggest that the Council's argument is correct, namely that it is not open in these Class 1 proceedings to seek to have a condition of development consent or part thereof declared invalid. That can only occur in Class 4 proceedings and there are none on foot ... 17. The general principle that the validity of a condition of development consent cannot be challenged in Class 1 proceedings applies in this matter." 101. The context in which the observations of Tobias JA were made at [94] of Anambah need to be noticed. His Honour was there recounting the history of proceedings in this Court. At [93] he recorded a contention made in this Court by Maitland Council that it was not open to the applicant for modification of a development consent to seek deletion of a condition on the basis of its invalidity. That issue having been raised and described by his Honour as "jurisdictional", he recorded in [94] that proceedings in Class 4 had been commenced seeking a declaration as to invalidity of the condition in question and noting that when the proceedings came before a judge of this Court both the Class 1 and the Class 4 proceedings were consolidated. He continued at [94]: "Her Honour then proceeded to hear and determine those proceedings. As she declared Condition 36 to be void and of no effect, she could only have done so in the Class 4 proceedings from which an appeal lies to this Court on both issues of fact and law." His Honour did not thereafter address the power of the Court in Class 1 proceedings involving an application for modification of a consent to determine the validity of a consent condition.
17. With respect to the leading Court of Appeal case of Helman v Byron Shire Council (1995) 87 LGERA 349, Craig J summarised the salient parts of the judgment and opined that (at [103]-[105]): 103. No reference was made in Birdon to the decision of the Court of Appeal in Helman v Byron Shire Council (1995) 87 LGERA 349. The leading judgment in that case was delivered by Handley JA (Kirby ACJ and Priestley JA agreeing). The appeal was from Class 1 proceedings in this Court in which the appellant challenged the validity of a development application on the basis that it was not accompanied by a fauna impact statement as was required by the EPA Act, in the form that it then took, and further that a condition of consent was invalid. While the appellant was unsuccessful before this Court, it succeeded before the Court of Appeal. 104. In the course of the Appeal, it was contended that a challenge to the validity of a development consent could not be raised in Class 1 proceedings but was confined to proceedings in Class 4 of the Court's jurisdiction. In response to that submission, Handley JA said (at 360): "In my opinion the existence of the Land Court's jurisdiction in class 4 proceedings provides no justification for confining the scope of its jurisdiction in class 1 proceedings. A party by appealing against a decision does not ordinarily lose his rights to challenge the validity of that decision in the appeal: [citation of authority omitted]. In both Scurr and Pioneer Concrete objections to the validity of decisions by the Council were successfully raised in merit appeals. The Land Court has frequently entertained legal objections in merit appeals: [citation of authority omitted]. Section 104A of the Act purports to exclude challenges to the validity of consents except in proceedings commenced within three months of public notification. It does not restrict such challenges to class 4 proceedings. In my opinion, therefore, Mr Hemmings' objection should be overruled." 105. I am not aware of any subsequent decision of the Court of Appeal which has qualified or dissented from the observations of Handley JA in Helman. Although not referred to in that case, they are consistent with the observations of the joint judgment of the Court of Appeal (Samuels, Priestley and McHugh JJA) in Minister for Agriculture, Lands and Forests v New South Wales Aboriginal Land Council (1987) 8 NSWLR 51. In the context of an appeal to that Court from proceedings brought in Class 3 of this Court's jurisdiction, the Land Council challenged the validity of a certificate given under s 36(8) of the Aboriginal Land Rights Act 1983. The Court of Appeal sustained the right of the Land Council to challenge the validity of the certificate albeit in Class 3 proceedings. Reference was made to s 22 of the Land and Environment Court Act 1979 (the Court Act) as providing sufficient statutory authority for the Court, in that class of jurisdiction, to determine the validity of the certificate. I see no reason why, by analogy, that should not be applied to the present case.
18. The earlier decision in Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53 involved an appeal in Class 1 of the Court's jurisdiction relating to a stop work order issued under the Native Vegetation Conservation Act 1997. The applicant sought to raise legal issues directed towards the validity of the order. Not all of the legal issues sought to be agitated were permitted to be entertained because they were matters that ought to have been raised in Class 4. After referring to the provision of the LEC Act which identified the class of jurisdiction into which various proceedings are allocated, Pain J referred to Helman and concluded that (at [38]): 38. Helman is not authority for the proposition, in my view, that any legal challenge to an administrative order, regardless of its nature, is maintainable in Class 1 proceedings. Helman was not dealing specifically with judicial review proceedings, as in this case. While legal questions of invalidity of a decision can be raised in Class 1 matters, a challenge to the power of the decision-maker to make the decision at all is not appropriate in Class 1 proceedings, in my view.
19. In Australian International Academy of Education Inc Craig J disagreed with Pain J's reasoning (at [109]-[110]): 109. There are no doubt good and practical reasons why some legal issues that arise in the determination of proceedings brought in Classes 1, 2 and 3 of the Court's jurisdiction might better be determined in Class 4 proceedings. Both discretionary considerations applicable to the grant of either declaratory or injunctive relief may more appropriately be addressed in proceedings of that kind and, in the interests of the parties, appeal rights are greater if proceedings are brought in Class 4 of the Court's jurisdiction. However, it seems to me that practical or discretionary considerations aside, the manner in which the Court Act divides the exercise of jurisdiction among Classes 1, 2, 3 and 4 provide no legal basis on which to deny the power to determine the invalidity of actions taken by a statutory authority when exercising jurisdiction in proceedings allocated to Class 1, 2 or 3. 110. I do not understand Birdon or Greentree to have established a principle that in proceedings brought in Class 1, 2 or 3 of the Court's jurisdiction, the Court cannot (rather than should not) determine the validity of an administrative decision that is germane to the determination of the proceedings. If, contrary to my understanding of the decisions, such a principle has been articulated, then I respectfully disagree with it. No legislative provision sanctions such a principle: s 22 of the Court Act speaks against it.
20. With great respect to his Honour, this view is, in my opinion, plainly wrong insofar as it applies to a commissioner exercising the classes of jurisdiction referred to at [110]. First, ss 20 and 33(2) of the LEC Act are expressly contradictory to his Honour's position. Second, for the reasons explained above, s 22 cannot assist. It is noted in this context that the seemingly plenary power contained in s 22 is qualified to claims "properly brought forward by that party in the matter". That is, claims where the decision-maker had jurisdiction to hear the matter. In addition, the further words of limitation contained in s 22, namely, "as far as possible", are a clear recognition that not all controversies between the parties are amenable to resolution under this provision. Third, if his Honour were correct, then this would enable a commissioner to exercise judicial power in circumstances where they are plainly not permitted to do so. Fourth, it would amplify and expand the jurisdiction of Classes 1 to 3 in a manner not contemplated by the legislature when enacting the LEC Act.
21. In my view, the reasoning expressed by Pain J in Birdon and Greentree is to be preferred and followed with respect to commissioners exercising the jurisdiction of the Court in Classes 1 to 3.
22. Finally, it cannot go unnoticed that each of the cases the parties referred the Court to in submissions concerning challenges to validity in Class 1 proceedings were heard by a judge and not a commissioner of the Court (see, for example, Hammersmith Management Pty Limited v Lake Macquarie City Council [2003] NSWLEC 20; (2003) 124 LGERA 63 per Lloyd J, where there was both a Class 1 and a Class 4 application before the Court for determination). This is consistent with the delegation power contained in s 36 of the LEC Act that allows commissioners to hear matters in Classes 1, 2 and 3 only.
23. In my opinion, correctly characterised, the issues raised in this appeal squarely concern the jurisdiction of the Commissioner to consider and determine whether there were any deficiencies in the process by which the Council adopted the Contributions Plans; or in other words, the lawfulness or correctness of the Plans. When the reasons of the Commissioner are properly analysed, it is clear that she sought to interrogate the steps taken by the Council in making and adopting the Contributions Plans. Embedded in her conclusion that the Contributions Plans were not "contributions plans" as defined by the Act (see her reasoning at [117]) and that contributions could therefore not be levied under them pursuant to s 4.17 of the EPAA (at [119]), was an implicit finding of invalidity with respect to the Contributions Plans in circumstances where the Commissioner was arguably required to assume the validity of the Plans (see s 7.20 of the EPAA).
24. Accordingly, this issue must be resolved in the Council's favour and grounds 1 and 2 of the s 56A summons must be upheld.

The Judicial Notice Issue and the Contrary Evidence Issue

1. It is convenient to deal with the judicial notice issue and the contrary evidence issue together. The issues are raised in ground 3 of the s 56A summons.
2. The Council contended that the Commissioner erred in rejecting, absent reasons, the Council's argument that she was bound by s 7.20 of the EPAA and that in the absence of any evidence to the contrary (of which there was none), she was required to take judicial notice of the Contributions Plans (s 7.20(1)) and was required to presume that all conditions and preliminary steps to the making of the Contributions Plans had been complied with and performed (s 7.20(2)).
3. The Commissioner gave reasons for her rejection of the Council's submissions in this regard (at [118]), namely, that because there was a dispute as to which plan was the correct contributions plan, the presumption in s 7.20(2) had been rebutted and she was not obliged to take judicial notice of the Contributions Plans pursuant to s 7.20(1) of the EPAA. Moreover, the Commissioner had been presented with what she understood to be "evidence to the contrary": the amended 2012 Direction and the Practice Note (see her reasoning at [117]). It is therefore not correct to say, as the Council does, that the Commissioner provided no reasons. She did.
4. But in eschewing the requirements of s 7.20(1) and (2) of the EPAA, the Commissioner made several errors of law.
5. First, there was no "evidence to the contrary" because the Contributions Plans acknowledged the Practice Note and were in conformity with it and the amended 2012 Direction (as the decision in Satmell has determined). Thus no IPART or Ministerial review was required. Because there was "no evidence to the contrary", the presumptive rule and mandated judicial notice contained in s 7.20 applied, and by not following those legislative strictures, the Commissioner fell into error.
6. Satmell submitted that the Practice Note, the amended 2012 Direction, and the Council resolution were all "evidence to the contrary" for the purpose of s 7.20(2). It should be noted that Satmell's submission that the Practice Note constituted "evidence" for the purpose of s 7.20(2) was inconsistent with its earlier contention in Satmell (at [111]) that it was an "instrument" as defined in the Interpretation Act 1987 and therefore, a species of legislation.
7. In Satmell it was determined that the Practice Note was not an "instrument" for the purposes of the Interpretation Act (at [112]-[114]).
8. On any view, the amended 2012 Direction is an instrument. The Council therefore relied on s 143(1)(d) of the Evidence Act 1995 to argue that because proof is not required of it, it is not evidence. In other words, of itself, it was neither capable of constituting "evidence" nor "evidence to the contrary" for the purpose of s 7.20 of the EPAA: 143 Matters of law (1) Proof is not required about the provisions and coming into operation (in whole or in part) of: … (d) an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called).
9. But whether or not the Practice Note or the amended 2012 Direction can properly be characterised as instruments does not, in my opinion, matter. This is because the legal effect of the Practice Note or the amended 2012 Direction is not a matter of evidence, and therefore, neither could be rendered "evidence to the contrary". Rather, this is plainly a question of statutory construction having regard to the legislative scheme permitting the making of contributions plans under the EPAA and the EPA Regulations. On this basis, s 143(1)(d) of the Evidence Act affords little assistance to either party. Not only does that Act not apply to Class 1 proceedings, the provision does not assist in the interpretative task demanded by s 7.20 of the EPAA and the statutory framework to which the Court must have regard concerning the making of contributions plans.
10. As for the Council resolution, while it is likely to amount to "evidence", again, without more, it does not amount to "evidence to the contrary". The resolution does no more than record the determination of the Council. In my view, it is not, of itself, evidence capable of impugning the validity of the procedure required to be followed in approving the Contributions Plans sufficient to permit the Commissioner to resist the application of s 7.20 of the EPAA.
11. In respect of the application of s 7.20(1) of the EPAA, Satmell took the Court to various definitions of the term "judicial notice" in P Butt (ed), Butterworths Concise Australian Legal Dictionary (3rd ed, 2004, Lexis Nexis Butterworth) and B A Garner (ed), Black's Law Dictionary (9th ed, 2009, Thomson West) which defined it to mean the acceptance by the Court of a fact so indisputable that proof (evidence) was not required to demonstrate it (the concept is also embodied in s 144 of the Evidence Act).
12. In my opinion, these definitions did little other than reinforce the view that the purported evidence relied upon by the Commissioner to displace the presumption contained in s 7.20(2) was inadequate. Acceptance of the fact of the existence of Contributions Plans and the date upon which they came into effect was mandated by s 7.20(1). To find to the contrary, that is, to find that the Contributions Plans were, in effect, no contributions plans at all by reason of some defect of process, required evidence of something more than that presumed in s 7.20(2).
13. The conclusion that the Commissioner was required to take judicial notice of the Contributions Plans pursuant to s 7.20(1) becomes all the more compelling when s 7.20(2) is read in context with s 7.20(3). The question of whether there is "evidence to the contrary" in s 7.20(2) to rebut the statutory presumption in s 7.20(1) is to be determined by proceedings brought in accordance with s 7.20(3), namely, proceedings questioning the "validity of any procedure required to be followed in making or approving contributions plan", within the time stipulated in that sub-section and, by reason of the operation of the LEC Act within Class 4 of the Court's jurisdiction
14. Second, as both parties identified, these issues overlapped with the contributions plan issue. In other words, they demand an examination as to whether the Commissioner was permitted to interrogate the Council's resolution adopting the Contributions Plans given the confines of the jurisdiction that she was exercising in Class 1. For the reasons given above in relation to the contributions plan issue, she could not. To reiterate, if Satmell wanted to challenge the "validity of any procedure required to be followed in the making or approving" of the Contributions Plans a mechanism for doing so was provided for in s 7.20(3) of the EPAA, namely, to commence (as it ultimately did) judicial review proceedings in Class 4 of the Court's jurisdiction.
15. At the risk of repetition, by inviting the Commissioner to "consider the question of the relevant contributions plan from which a condition (under s 4.17 of the Act) is able to be levied" (at [114]), Satmell was, on any view, inviting the Commissioner to engage in a review of the lawfulness, and hence, the validity of the Contributions Plans. Were it otherwise, s 7.20(1) applied and the Commissioner was obliged to take judicial notice of the Contributions Plans adopted by the Council. For the Commissioner to find that the contributions ought to be levied under a different contributions plan to those approved by the Council on 28 February 2018, this necessitated the Commissioner rejecting those Contributions Plans. In light of s 7.20, the only basis upon which she could do so was if the Contributions Plans were invalid for whatever reason. This was a determination that, for the reasons earlier explained, she was precluded from undertaking in Class 1 of the Court's jurisdiction.
16. On these bases, the judicial notice issue and the contrary evidence issue must be determined in the Council's favour.

The Appeal Must be Upheld

1. Having established that the Commissioner erred on questions of law, the Council's s 56A appeal must be upheld.

Whether Remitter is an Appropriate Order

1. Because Satmell has been unsuccessful in the Satmell proceedings and unsuccessful in these proceedings, an issue arises as to the appropriate orders to be made.
2. The Council submitted there were only two available courses: 1. first, the substitution of condition 3.10 of the Commissioner's orders dated 24 July 2019 (the contributions condition), with an amended version (a draft of which was provided to the Court) imposing levies that were consistent with the caps contained in the amended 2012 Direction, but which reflected the staging plan ultimately approved by the Commissioner; or 2. second, remitter to the Commissioner, but with such remitter confining Satmell to the facts and contentions raised at first instance.
3. While the parties were in agreement as to the content of the draft amended condition 3.10 (T95.32, 98.41 and 117.05), it was the preference of Satmell to have the matter remitted because s 7.13(3) of the EPAA permits the Commissioner to amend a contribution condition if it is unreasonable in the particular circumstances.
4. The Council resisted this option on the basis that any issue of reasonableness could have been, but was not, argued in the alternative before the Commissioner below.
5. It is convenient to make the following observations. First, the parties are free to raise whatever arguments they think appropriate before a commissioner on remitter, including, in the present case, that if the Contributions Plans are the jurisdictional bases for the imposition of a contributions condition, then it is open to the Commissioner to impose a condition that is of a lesser amount in the particular circumstances of the appeal. On remitter, the parties are confined neither to the issues nor the evidence (as to the latter, see Long v Blacktown City Council (1993) 80 LGERA 50 at 53 and Perry Properties Pty Ltd v Ashfield Council (No 2) [2001] NSWLEC 62; (2001) 113 LGERA 301 at [26]-[29]) that were before the commissioner at first instance.
6. Second, the Court has the power under s 56A(2)(b) of the LEC Act to "make such other order in relation to the appeal" as that urged upon it by the Council. In North Sydney Council v North Sydney Leagues Club Ltd [2017] NSWLEC 69, where the parties agreed not only on the form of the condition in dispute but also the appropriateness of the Court ordering the substitution of a new condition for the impugned condition, such an order was made (at [87] and [88]). However, the facts in that case may be contrasted with those in the present where there is agreement as to form only.
7. Third, the principle of finality suggests that it is highly desirable that all issues be agitated before the Commissioner at first instance. The principle was described in Bunnings as (at [99]): The principle of finality is that "controversies, once resolved are not to be reopened except in a few, narrowly defined, circumstances": D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34] and see also Bailey v Marinoff (1971) 125 CLR 529 at 530; [1971] HCA 49 and DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 at [38]. As was said in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [16]: "…the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is also always costly."
8. However, as was stated in that case, the imperative for finality is not absolute (at [100]).
9. I do not consider that Satmell's acknowledged failure to argue the reasonableness of the quantum of the contributions before the Commissioner (T115.14) compels the Court on a s 56A appeal to refuse remitter on this basis alone.
10. As for considerations of efficiency and cost, as Satmell submitted, if it is not permitted to argue the reasonableness of the contributions levied at a rehearing before the Commissioner, there is nothing precluding it from doing so by recourse to a modification application. Finally, the Council did not point to any prejudice other than costs that strongly militated against remitter.
11. In all of the circumstances of this case, I am of the opinion that an order for remitter is appropriate.

Orders

1. The Court therefore orders that: 1. the appeal is upheld; 2. the decision and orders of Dickson C dated 31 May 2018 and 24 July 2018 respectively, are set aside; 3. the proceedings are remitted to Dickson C to be determined in accordance with these reasons for judgment; 4. the respondent is to pay the applicant's costs of the appeal; and 5. the exhibits are to be returned.

Amendments 01 July 2019 - Amended error in cover sheet. 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: 01 July 2019