DECISION
17 In my opinion, the particular criticism made of the judgment of the primary judge in his identification of the development consent and the notice of determination is well founded. The development consent referred to s.25A(1) is the consent itself, namely the determination of the relevant consent authority. On this view, it does seem to me that the Division would apply to invalidity arising from steps preliminary to the granting of such a consent, even in the absence of subs.(2).
18 That lends some force to Mr Hemmings' submission that subs.(2) would be otiose if it was there truly as an extension, rather than as an indication of the totality of the type or types of invalidity to which the Division extends.
19 However, in my view the use of the word "extends" in subs.(2) is a strong indication that the subsection was not intended to be an exhaustive indication of the type or types of invalidity to which the Division applies. If the subsection had used the word "applies", or "applies only", then that may have been the intention disclosed.
20 There are other indications, in my opinion, of a legislative intention that the Division should not be limited to the particular kind of invalidity specified in subs.(2).
21 Firstly, there seems no logic in selecting that particular type of invalidity, rather than any type of invalidity that might affect a development consent or purported development consent. The general intention was that technical breaches should be capable of being rectified, and there can be technical breaches which are not matters arising from preliminary steps.
22 Next, it seems to me there is some uncertainty as to the scope of steps preliminary to the granting of a development consent. It is not entirely clear whether that would include the requirement that consideration of certain matters take place. If it does extend to the requirement of consideration of certain matters, then the lack of logic in separating out preliminary steps from other matters becomes even clearer.
23 Another matter which it seems to me confirms that subs.(2) of s.25A should not be given that limiting effect appears from s.25E of the Court Act That section requires the court to consider the making of an order under the Division in relation to development consents to which this Division applies, that is, all development consents falling within s.25A(1). That, in my opinion, would be a little strange if the Division was only intended to apply to particular types of invalidity.
24 For those reasons, I would regard subs.(2) of s.25A as a matter inserted out of an abundance of caution, perhaps out of concern that matters in relation to which considerations of natural justice apply might have been thought matters which should not be capable of being rectified in this way.
25 The issue raised by this appeal has been the subject of conflicting decisions in the Land and Environment Court, and it is appropriate that leave to appeal be given. But for the reasons I have given, in my opinion the appeal should be dismissed with costs.
26 I would add that one other issue was raised by the appeal. In his second judgment, the primary judge indicated that, even if Division 3 of Part 3 did not apply, he would have made the orders that he did make under s.124 of the Environmental Planning and Assessment Act. It is not necessary for the Court to express a view on that, and in dismissing the appeal, the Court should not be taken as agreeing with that aspect of the primary judge's judgments.
27 TOBIAS JA: I agree with the orders proposed by the presiding judge and with his Honour's reasons but wish to add the following further observations.
28 In GPT Limited v Wollongong City Council [No 2] (2006) NSW LEC 401, Biscoe J at [43]-[54] sets out a history of the decisions by individual judges of the Land and Environment Court in relation to the proper construction of Part 3 Division 3 of the Court Act.
29 The contention of the claimant in the present case is that Pearlman CJ in Glowpace Pty Limited v South Sydney Council (2000) 111 LGERA 84, was correct when, in effect, her Honour held that as a consequence of the provisions of s.25A(2), the making of an order under s.25B(1) of the Court Act, or at least the exercise of the discretion to make such an order was confined to those grounds of invalidity of a development consent referred to in s.25A(1)(b) which involved a failure to take some procedural and/or preliminary step which, if taken, would have resulted in the substantial validity of that consent.
30 In addition to the reasons advanced by Hodgson JA for rejecting that construction, I would draw attention to s.25B(1)(b) which speaks, in the event of an order suspending the operation of the consent in whole or in part, of specifying terms compliance with which will validate the consent whether without alterations or on being regranted with alterations. The latter is a reference to the provisions of s.103(3) of the Environmental Planning and Assessment Act to which I will return in a moment.
31 Section 25B(2) sets out in a non-exclusive manner the type of terms which can be imposed for the purpose of validating the consent, and which include terms requiring the carrying out again of steps already carried out or the carrying out of steps not already carried out. But importantly, 25B(2) is not confined in any way to terms involving the carrying out of preliminary steps referred to in sub-paragraphs (a) and (b). It includes in sub-paragraph (c) terms requiring acts, matters or things to be done or omitted that are different to acts, matters or things required to be done or omitted by or under this Act or any other Act. Any other Act would include the Environmental Planning and Assessment Act.
32 It seems to me that s.25B(2)(c), for instance, would authorise the imposition of a term requiring a consent authority to reconsider if it has already considered the matter, or to consider for the first time if it has failed to consider the matter, any one or more of the matters required to be considered by, for instance, s.79C of the Environmental Planning and Assessment Act. That, of course, does not mean that in every case where a purported consent is invalid upon the basis that s.79C has not been complied with, that the court will exercise its discretion to suspend the consent and to require the consideration or reconsideration of a s.79C matter.
33 On the contrary, there would be those cases of which, for instance, the decision of McClellan J, then Chief Judge of the Land and Environment Court, in Centro Properties Limited v Hurstville City Council (referred to in [47] of Biscoe J's judgment in GPT) is an example where his Honour, without determining whether s.25A(2) limited the type of invalidity in respect of which the court's discretion under s.25B(1) could be exercised, nonetheless refused to exercise his discretion under that provision in circumstances where the ground of invalidity was the failure of the council to consider a noise impact when granting development consent. That failure involved a breach of s.79C. However, as the council had already determined to grant consent, his Honour considered that it would be insufficient to simply require the council to consider a noise report and then to decide whether to confirm its original decision. Rather, it would be more appropriate in those circumstances if the council considered the whole of the relevant material, including information relating to the issue of noise impact afresh.
34 The point of that decision is that the issues upon which Mr Hemmings relied in his very careful, complete and skilful argument involve the types of issues that are the subject of the exercise of the court's discretion under s.25B(1). There is no reason, it seems to me, either as a matter of logic or as a matter of the language used in s.25A(2), to confine the power to exercise the discretion in s.25B(1) in the manner which the claimant asserts and which was adopted by Pearlman CJ in Glowpace.
35 Biscoe J in GPT sets out in [45] a suggested explanation for her Honour's failure in Glowpace to explain why s.25A(2) had the limiting effect which she adopted, but I do not find that explanation in any way persuasive. In my view, her Honour's decision in Glowpace was incorrect as were the decisions of Pain J which followed it in Centro Properties Limited and Warringah Council [No.2] (2003) 132 LGERA 45 and Woolworth's Limited v Wyong Shire Council (2005) NSW LEC 607.
36 In the first of those cases, Pain J held that a deliberation under s.79C of the Environmental Planning and Assessment Act was part of the decision whether or not to grant development consent and, therefore, not a step "preliminary" to it. In my view, there is no reason why the requirement to take a matter into consideration under s.79C before granting a development consent could not be described as a step in the process leading to the granting of a consent. Nevertheless, her Honour's limitation on the extent of the jurisdiction conferred by ss.25A and 25B by excluding a failure to take into account a matter under s.79C cannot, in my respectful view, be sustained.
37 I referred earlier to the provisions of s.103 of the Environmental Planning and Assessment Act, which applies to a development consent granted or purported to be granted by a consent authority to which an order of suspension applies under s.25B of the Court Act. Under subs.(2), a consent authority may revoke such a consent whether or not the terms imposed by the court under s.25B(1) have been complied with. However, pursuant to sub-section (3), if the terms imposed by the court have been substantially complied with, the consent authority may revoke the consent and grant a new consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves or to any matter arising in the course of complying with those terms.
38 The width of that provision, it seems to me, is a further nail in the coffin of the contention that the making of an order under s.25B(1) is confined to what are preliminary and purely procedural steps of the nature of those referred to by the Chief Judge in Glowpace. Part 3 Division 3 of the Court Act needs to be read in conjunction with s.103 of the Environmental Planning and Assessment Act which, in my view, merely adds force to the construction which the presiding judge has adopted, which was adopted by Lloyd J and which I also consider to be the appropriate construction to be given to s.25B(1).
39 For those additional reasons, I agree with the presiding judge that leave to appeal should be granted and that the appeal should be dismissed with costs.
40 McCOLL JA: I agree with Hodgson JA and Tobias JA. I would add some additional observations.
41 Lloyd J in the decision under challenge applied to the word "extends" in s.25A(2) of the Land and Environment Court Act 1979 one of its dictionary senses, being "to enlarge the scope of or to make more comprehensive".
42 The claimant's argument turns principally on the proposition that the word "extends" in that subsection should be read as a word of limitation which cuts down what might otherwise be discerned to be the wide ambit of subs.25A(1).
43 In Blue Metal and Gravel Country v Bombala Shire Council (1992) 26 NSWLR 292 (at 304), Handley JA said "the verb 'extend' and its various derivatives have an embarrassingly large number of meanings or shades of meaning. It is therefore clear that its meaning in any particular case will very much depend on its context and the relevance subject matter."
44 In the same case, Kirby J gave reasons why he preferred to apply a general meaning to the word "extend". The only meaning it is relevant to note here is his Honour's observation that a synonym of "extend" is "expand". Priestley JA also construed the verb "extend" as having the general meaning which it readily bore in ordinary speech rather than the more limited one which Handley JA had reached upon contextual considerations.
45 In my view, the word "extends" in ss.25A(2) should be given its ordinary meaning. That is, that it is a word of expansion. Whether, as the presiding judge has said, for abundant caution or for other reasons, the Legislature has chosen to emphasise that s.25A(2) applies to all development consents or purported development consents and also to the sorts of invalidity referred to in subs.(2) and (3), neither of those subsections, in my view, detracts from the conclusion that the verb "extends" should be given that ordinary meaning.
46 This conclusion is also supported by the context in which s.25A appears.
47 Section 25E requires the court to consider making an order under Division 3 instead of declaring or determining that a development consent to which Division 3 applies is invalid, whether in whole or in part. That provision, in my view, emphasises the amplitude of the power conferred by Division 3. The Division creates a regime for suspending the operation of development consent pending the applicant for that consent being given an opportunity to remedy a breach which might otherwise render the development consent invalid. The duty which s.25E imposes on the court to consider making a Division 3 order emphasises the legislative concern that development consents not be frustrated by potential invalidities in respect of which the court may, as a matter of discretion, consider making a s.25B order.
48 Mr Hemmings also relied on the Second Reading Speech, by which Division 3 was inserted in the Land & Environment Court Act, but nothing in that speech, in my view, cuts down the ordinary meaning to be given to the word "extends". In particular, it does not indicate any intention to confine s.25A to breaches preliminary to the granting of a development consent. If I draw anything from the Second Reading Speech, it is that the Legislature was concerned to confer on the Land and Environment Court a broad power to remedy breaches. The construction for which Mr Hemming contends is, in my view, contrary to the text, the context and the policy of s.25A(2).
49 I agree with the orders proposed by Hodgson JA.
50 HODGSON JA: Mr Hemmings has submitted that the Court should not order that the claimant pay the costs of the opponents of this application and the appeal.
51 He pointed to a finding by Cowdroy J in the original first instance decision that his client was a public interest litigant, bringing the proceedings to further matters of public interest; and he submitted that taking that into account the appropriate order at this stage was that each party bear their own costs of the appeal.
52 In my opinion considerations associated with the bringing of proceedings in the public interest may weigh less heavily in appeal proceedings than in first instance proceedings.
53 In seems to me in this case that the aspect of public interest was substantially satisfied by the original Court of Appeal decision, and the giving effect to that decision by ensuring that the matter raised in the Court of Appeal decision was appropriately dealt with in the development consent itself rather than a deed.
54 This appeal, although it was supported by first instance decisions below, did relate to a rather technical challenge to what had been done at first instance.
55 Having regard to all those considerations, in my opinion the ordinary result as to costs should follow, and costs should follow the event.
56 TOBIAS JA: I agree.
57 MCCOLL JA: I also agree.
58 HODGSON JA: So the orders of the court are:
1. Leave to appeal granted.
2. Notice of appeal to be filed within fourteen days.
3. Appeal dismissed with costs.
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