(2003) 126 LGERA 7
Currey v Sutherland Shire Council and Russell [2003] NSWCA 300
(2003) 129 LGERA 223
Ervin Mahrer and Partners v Strathfield Municipal Council (No 2) [2001] NSWLEC 140
(2001) 115 LGERA 259
Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349
(2006) 145 LGERA 292
Rogers v Clarence Valley Council [2011] NSWLEC 134
Source
Original judgment source is linked above.
Catchwords
(2003) 126 LGERA 7
Currey v Sutherland Shire Council and Russell [2003] NSWCA 300(2003) 129 LGERA 223
Ervin Mahrer and Partners v Strathfield Municipal Council (No 2) [2001] NSWLEC 140(2001) 115 LGERA 259
Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349(2006) 145 LGERA 292
Rogers v Clarence Valley Council [2011] NSWLEC 134
Judgment (13 paragraphs)
[1]
Solicitors:
McCartney Young Lawyers (Applicant)
Department of Planning and Environment (First Respondent)
HWL Ebsworth Lawyers (Second Respondent and Third Respondent)
File Number(s): 2016/00227775
[2]
Judgment
Before the Court is a Notice of Motion filed on 13 April 2017 by Butler Street Community Network Incorporated ('Butler Street'), the applicant in Class 1 proceedings brought against Northern Region Joint Regional Planning Panel ('Panel'), GHD Pty Ltd ('GHD') and Byron Shire Council ('Council'). The proceedings are an objector appeal brought pursuant to s 98 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') against the grant of consent by the Panel for the construction of a road and associated works.
Butler Street seeks the following orders:
1. That the proceedings be dismissed as the Court has no jurisdiction to determine the development application that is before it.
2. That the dates for the hearing of these proceedings, being 15, 16 and 17 May 2017 be vacated.
3. That the Orders for "Case management" and the timetable made by Court on 30 March 2017 be vacated and no further orders for Case management be made until the determination of the issues raised in proposed Order 1 of this Motion.
4. That the Respondents pay the costs of the Applicant on the Motion.
5. That the Respondents pay the Applicant's costs of the proceedings.
The Motion is contested by Council. The Panel does not contest the Motion, however did indicate that it seeks the opportunity to be heard should the Court consider making an order against it for costs. GHD did not appear on the Motion.
For the following reasons I find that the Court does have jurisdiction to determine the development application before it.
[3]
Background
On 22 June 2016 the Panel granted approval to Development Application No 10.2016.77.1 ('DA') lodged by GHD on behalf of Council. The approval was granted in respect of the following development ('Byron Bay Bypass'):
Upgrade of existing and construction of new road in Butler Street (including the road reserve southern extension), Browning Street, part of the Casino-Murwillumbah Railway Line corridor, Shirley Street, Lawson Street, Somerset Street, Burns Street, Wentworth Street and Jonson Street, including upgrade of the existing roundabout at the intersection of Shirley Street, Lawson Street and Butler Street, construction of three new roundabouts, two new culverts and upgrade of an existing culvert.
The development is located within the Byron Bay township, close to the coast to the north, Cumbebin Swamp Nature Reserve and rural land to the west and southwest, Byron Bay township and Arkwal National Park to the east and additional urban areas of Byron Bay and Suffolk Park to the south and southeast. A portion of the Byron Bay Bypass is proposed to pass through wetlands ('SEPP 14 Wetlands') governed by the State Environmental Planning Policy No 14 - Coastal Wetlands (NSW) ('SEPP 14').
The applicant lodged its objection to the DA on 1 April 2016 (in the form of submissions), and subsequent to the Panel's determination to grant consent on 22 June 2016, commenced Class 1 objector proceedings in this Court on 20 July 2016.
Importantly, the proceedings have been set down for hearing on the 15, 16 and 17 May 2017. On 28 March 2017 the solicitors for Council wrote to the solicitors for Butler Street advising of a matter which, Council's solicitors stated, "gives rise to a significant constraint in the Court's determination of the appeal".
In summary, the issue giving rise to the Motion is as follows. Under the Byron Local Environmental Plan 2014 ('Byron LEP') the area the subject of the DA is zoned variously R2, RE1, B2 and SP2. Construction of roads is permitted in these zones under the Byron LEP, with development consent. However, clause 94 of the State Environmental Planning Policy (Infrastructure) 2007 (NSW) ('SEPP Infrastructure') also applies to the land the subject of the DA, and permits development for the purposes of a road without consent in circumstances where the development is being carried out by a public authority.
The parties agree that, in light of the inconsistency between the Byron LEP and SEPP Infrastructure, cl 8(1) of SEPP Infrastructure operates to allow SEPP Infrastructure to prevail, meaning the development is (for the most part) permissible without consent. Relevantly, the parties also agree that SEPP Infrastructure does not prevail to the extent the development is proposed to pass through SEPP 14 Wetlands, as cl 7 of SEPP 14 restricts, among other activities, clearing, draining and filling of the SEPP 14 Wetlands without consent of Council. Accordingly, it appears that there was no basis for the grant of development consent for the development, in so far as it does not relate to SEPP 14 Wetlands.
While the parties appear to agree up to this point, they differ on the implications that this conclusion has on the proceedings before this Court. Butler Street contends that the fact that consent is not required for the majority of the development means that the Court does not have jurisdiction to determine the DA under s 80 of the EPA Act, as there is no longer a valid DA. Council, on the other hand, maintains that the Court has jurisdiction, despite the fact that the Panel granted consent over parts of the development which do not require consent.
[4]
Relevant legislation
Before considering the issues it is useful to set out the relevant legislation.
As noted above, the area the subject of the DA is zoned variously R2 (Low Density Residential), RE1 (Public Recreation), B2 (Local Centre) and SP2 (Infrastructure) under the Byron LEP.
Relevantly, cl 94 of SEPP Infrastructure provides:
94 Development permitted without consent - general
(1) Development for the purpose of a road or road infrastructure facilities may be carried out by or on behalf of a public authority without consent on any land. However, such development may be carried out without consent on land reserved under the National Parks and Wildlife Act 1974 only if the development:
(a) is authorised by or under the National Parks and Wildlife Act 1974, or
(b) is, or is the subject of, an existing interest within the meaning of section 39 of that Act, or
(c) is on land to which that Act applies over which an easement has been granted and is not contrary to the terms or nature of the easement.
(2) In this clause and clause 96, a reference to development for the purpose of road infrastructure facilities includes a reference to development for any of the following purposes if the development is in connection with a road or road infrastructure facilities:
(a) construction works (whether or not in a heritage conservation area), including:
(i) temporary buildings or facilities for the management of construction, if they are in or adjacent to a road corridor, and
(ii) creation of embankments, and
(iii) extraction of extractive materials and stockpiling of those materials, if:
(A) the extraction and stockpiling are ancillary to road construction, or
(B) the materials are used solely for road construction and the extraction and stockpiling take place in or adjacent to a road corridor, and
(iv) temporary crushing or concrete batching plants, if they are used solely for road construction and are on or adjacent to a road corridor, and
(v) temporary roads that are used solely during road construction,
(b) emergency works, or routine maintenance works, carried out on an existing public road or on land that is adjacent to such a road (including on land to which State Environmental Planning Policy No 14 - Coastal Wetlands or State Environmental Planning Policy No 26 - Littoral Rainforests applies but, if they are on such land, only if any adverse effect on the land is restricted to the minimum possible to allow the works to be carried out),
(c) alterations or additions to an existing road (such as widening, duplication or reconstruction of lanes, changing the alignment or strengthening of the road),
(d) environmental management works, if the works are in or adjacent to a road corridor.
Given the inconsistency between the Byron LEP and cl 94 of SEPP Infrastructure, cl 8 of SEPP Infrastructure provides:
8 Relationship to other environmental planning instruments
Note. This clause is subject to section 36 (4) of the Act.
(1) Except as provided by subclause (2), if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
Note. Subclause (1) does not prevent a local environmental plan from making provision about development of a kind specified in Part 3 in a particular zone if the provisions of this Policy dealing with development of that kind do not apply in that zone.
(2) Except as provided by subclause (3), if there is an inconsistency between this Policy and any of the following environmental planning instruments, the other instrument prevails to the extent of the inconsistency:
(a) State Environmental Planning Policy No 14 - Coastal Wetlands,
(b) State Environmental Planning Policy No 26 - Littoral Rainforests,
(c) State Environmental Planning Policy (State Significant Precincts) 2005.
…
It is common ground, and I proceed on the basis that SEPP 14 applies to the SEPP 14 Wetlands. Importantly, cl 7 of SEPP 14 provides:
7 Restriction on development of certain land
(1) In respect of land to which this policy applies, a person shall not:
(a) clear that land,
(b) construct a levee on that land,
(c) drain that land, or
(d) fill that land,
except with the consent of the council and the concurrence of the Director.
…
In determining the application the subject of these proceedings, the Court will be exercising its power under s 80 of the EPA Act, which provides:
80 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.
…
(4) Total or partial consent
A development consent may be granted:
(a) for the development for which the consent is sought, or
(b) for that development, except for a specified part or aspect of that development, or
(c) for a specified part or aspect of that development.
…
[5]
Applicant's submissions
Butler Street's primary submission is that, given the bulk of the development proposed by the DA does not require development consent, the Panel did not have the power to grant the DA except in relation to the part of the development located on SEPP 14 Wetlands, as consent cannot be granted for development which does not require consent (see Rogers v Clarence Valley Council [2011] NSWLEC 134; (2011) 185 LGERA 37). Butler Street contends therefore that the DA was invalid, and that the Court lacks jurisdiction in these proceedings as the Court cannot grant or uphold consent for works the majority of which do not require consent.
Butler Street further contends, relying on Radray Constructions Pty Ltd v Hornsby Council [2006] NSWLEC 155; (2006) 145 LGERA 292 ('Radray'), that the works the Council now states to be the subject of these proceedings are not the same works proposed by the DA, and that the Court does not have the jurisdiction to entertain a fresh development application.
While an applicant is able to amend a development application (with the agreement of the consent authority) pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) ('EPA Regulations'), Butler Street submits that Council has not made an application to amend the DA. Further, Butler Street submits that the only aspects of the DA that require consent are those located in SEPP 14 Wetland that involve the associated works of clearing of land, construction of a levee, draining or filling, rather than construction of the road itself. Butler Street submits that to amend the DA so that it applies only to these works would constitute so significant a change that it would exceed the power under cl 55 of the EPA Regulations and would in effect constitute a 'fresh' application (see Radray; Ervin Mahrer and Partners v Strathfield Municipal Council (No 2) [2001] NSWLEC 140; (2001) 115 LGERA 259). Butler Street submits that the power under cl 55 of the EPA Regulations is broad, but not unfettered, and that amending the DA such that it constitutes a 'fresh application' would, in the given timeframe, be unfairly prejudicial.
In response to Council's contention that the Court can grant partial consent to the development pursuant to s 80(4) of the EPA Act (discussed below), Butler Street submits there is in fact no valid DA, and therefore it is not open to the Court to grant partial consent.
In reply submissions, Butler Street emphasised that these proceedings are not judicial review proceedings, and that while Council may apply for consent in respect of any development it sees fit, the real question is what the Court can actually consider. Butler Street submits that to ask the Court to grant part of an application in circumstances where it does not have power to grant the whole of the application is in effect amending the application by stealth, and is unnecessary, if not ineffectual.
[6]
Council's submissions
Council accepts that development consent is only required for the portion of the development on SEPP 14 Wetlands. However, relying on The Council of the City of Parramatta v Precision Rubber Service Pty Limited [1995] NSWLEC 34 ('Precision Rubber'), Council submits that while the DA may be superfluous in respect of the bulk of the development, this simply renders it ineffectual, rather than invalid (see also Currey v Sutherland Shire Council and Russell [2003] NSWCA 300; (2003) 129 LGERA 223 ('Currey') at [32]-[35]).
Pursuant to s 80(4) of the EPA Act, Council submits that the Court can simply determine the DA for the part of the development for which consent is required, i.e. the part located on the SEPP 14 Wetlands. Council submits that the Court has engaged in similar exercises in the past, noting the cases of Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 at [94]-[105] and Lend Lease Development Pty Ltd v Manly Council (1997) 92 LGERA 420 at 435-436.
Accordingly, Council submits that the Court is entitled to consider the DA as it stands, and that Council is not required to amend the DA. Further, given these are Class 1 proceedings, Council submits that the Court is not bound by the Panel's approach to the DA, but rather, is required to substitute itself as the consent authority and in that sense is entitled to consider only those parts of the development that require consent.
Having submitted that the Court has the power to entertain the DA for the part of the development on SEPP 14 Wetlands, Council further submits that the Court should exercise its discretion under s 80(4) of the EPA Act to do so as:
1. that part of the development is easily severable and maintains its characterisation as being for the purposes of a 'road';
2. contrary to Butler Street's submission that only certain aspects of the works on the SEPP 14 Wetlands require consent, it is artificial to isolate these discrete activities as they cannot be distinguished from the overall development for the purposes of the road;
3. the contentions advanced thus far in the proceedings in relation to the whole of the development can be relevant considerations to the consideration of the SEPP 14 Wetlands portion of the development (see Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 184 LGERA 104); and
4. doing so would facilitate the just, quick and cheap resolution of the real issues in dispute, as the alternative would require Council to lodge a new development application.
In the alternative, Council submits that if it is required to amend the DA, doing so would not be beyond the scope of cl 55 of the EPA Regulations, and would not constitute a 'fresh' application. Council submits, relying on Radray at [9], that cl 55 should be construed widely, and in any event the amendments required do not result in changes to the development, but rather a reduction in its scope.
[7]
Is there a development application before the Court for determination?
Butler Street's primary contention is that the Court does not have jurisdiction in the proceedings as the DA giving rise to the proceedings is invalid, and therefore there is no development application before the Court for determination for the purposes of s 80(1) of the EPA Act. Having considered submissions from both parties, and the authorities, I do not accept this submission.
In Chambers v Maclean Shire Council [2003] NSWCA 100; (2003) 126 LGERA 7 at [33], Ipp J characterised the EPA Act as providing for a three-fold classification in relation to developments, described as follows:
The first category is that provided by s 76(1). Section 76(1) concerns specified developments that, by an "environmental planning instrument", may be carried out without the need for development consent. The second category of development is set out in 76A(1) and concerns a specified development that, by an environmental planning instrument, may not be carried out except with development consent. The third category is set out in s 76B. It concerns developments that, by an environmental planning instrument, are prohibited, or a development that cannot be carried out on land with or without development consent.
In the present circumstances, the parties agree, and I am satisfied, that the bulk of the development falls into the first category identified by Justice Ipp above, with the exception of the SEPP 14 Wetlands portion of the development, which falls into the second category.
Butler Street's submission is predicated on the assumption that, by overreaching the extent of development consent required and thereby applying for consent in respect of areas that do not require consent, the DA is invalidated.
I do not accept the submission that the DA is invalid. As put by Spigelman CJ in Currey at [35]:
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. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument provides that development may not be carried out except with consent. There is no relevant prohibition, express or implied, which impinges upon the application making process. [Emphasis added.]
Adopting this reasoning, I find that a development application is simply a procedural step in the process of gaining development consent - an applicant is entitled to put forward an application for a proposed development, and it falls to the consent authority to determine the extent to which the development is permissible under various planning instruments, and to grant consent accordingly. In that sense, there is clearly a development application before the Court for determination.
[8]
Does the Court have the power to determine the DA?
I note Butler Street's submission that the Court lacks jurisdiction as the Court cannot grant or uphold consent for works the majority of which do not require consent. While I accept that the Court cannot give consent to works that do not require consent, I do not consider that this gives rise to a lack of jurisdiction in these proceedings.
Section 98 of the EPA Act allows for appeal from the determination of the consent authority, rather in relation to the consent itself. The relevance of this distinction lies in the fact that the task before the Court is therefore to re-determine the development application by substituting itself as the consent authority, rather than reviewing the consent that has already been given. The Court's task is further clarified by the fact that these are Class 1 proceedings, requiring the Court, as per s 39 of the Land and Environment Court Act 1979 (NSW) to exercise "…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."
The application that will come before the Court is the DA that was put before the Panel and it will fall to the Court, exercising its power as the consent authority, to re-determine the application. While the entire DA will (absent any application under cl 55 of the EPA Regulations) be before the Court, the parties will, as they have done before me, in all likelihood proceed on the basis that the Court is only required to grant consent in respect of the SEPP 14 Wetlands.
It is well within the Court's power under s 80(4) of the EPA Act to grant consent to only a part of a development application, see e.g. Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 at [94]-[105].
Accordingly, while the Court has jurisdiction to determine the application, it will, assuming the operation of the SEPP Infrastructure has been correctly understood by the parties and myself, only have the power to grant a valid consent in respect of the portion of the development located on the SEPP 14 Wetlands.
In summary, for the purposes of a s 98 objector appeal and Class 1 proceedings such as the proceedings before this Court, all that is required to give rise to the jurisdiction of this Court is a development application that requires determination. For the above reasons, I am satisfied that there is a development application for the Court to determine under s 80 of the EPA Act, and that the Court can, exercising its power under s 80(4) of the EPA Act, grant or refuse consent in respect of the SEPP 14 Wetlands.
[9]
Is there a valid development consent on foot?
The above reasoning deals with the primary issue the subject of this Motion. The parties did however make submissions regarding the validity of the development consent granted by the Panel, with Butler Street's submission being that there is no valid DA as the Panel did not have the power to grant the consent. For the reasons provided above, I do not consider the validity of the consent granted by the Panel to be an issue before the Court either on this Motion or indeed in the substantive hearing, as the Court's task in Class 1 proceedings is to re-determine the development application, rather than review the consent. Given however that the parties did raise the validity of the consent, I will consider it briefly.
To the extent the Panel did in fact grant consent for those parts of the DA that do not require consent, I accept Council's submission that this consent is merely superfluous and therefore ineffectual. This finding is clearly supported by Pearlman J's decision in Precision Rubber, with her Honour stating:
If no consent is required, then the council has no function in relation to that development. It is not empowered to grant development consent where no development consent is required. If it purports to do so, as happened in the circumstances of this case, its grant of consent is superfluous and has no legal effect.
It should be noted that the consent granted in Precision Rubber was considered as a whole to be 'superfluous', as it applied to a development which in fact did not require consent at all. This is of course factually different from the present circumstances, where consent is required for a section of the proposed development. The question then arises as to whether or not the consent in respect of the SEPP 14 Wetlands portion of the development remains on foot.
I find that, in the absence of any judicial finding as to the invalidity of the consent, the consent must necessarily endure in accordance with the general principle in Calvin v Carr (1979) 1 NSWLR 1 at 8 per Lord Wilberforce (albeit in relation to a decision made contrary to natural justice, which is not the case here):
…a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void in the sense of being legally non-existent. So to hold would be wholly unreal.
[10]
Does the DA need to be amended?
Butler Street contended that Council is required to amend the DA (which it has not done as of yet), and that doing so would exceed the power to amend contemplated under cl 55 of the EPA Regulations such that it would constitute a 'fresh' application. I do not accept this submission.
I note first of all that the power to amend a development application under cl 55 of the EPA Regulations is a broad power that should be given wide interpretation, see Radray at [9]. I find persuasive Council's submission that amending the DA such that it only seeks consent in respect of the SEPP 14 Wetlands portion of the development likely falls within the scope of cl 55 of the EPA Regulations, noting that it constitutes a reduction in scope of the application, rather than a change in the proposed development itself. In the circumstances however I find it unnecessary to make a determination on this point, as I do not consider that amendment of the DA is required.
As dealt with above, applicants are entitled to submit a development application for "whatever they like". It falls to the consent authority to determine whether consent should be granted. In these circumstances, the whole of the DA will come before the Court, and it will fall to the Court, as the consent authority, to determine that consent is not required for the non-SEPP 14 Wetlands, and therefore consent should only be considered in respect of the SEPP 14 Wetlands portion of the development. I am content that it is within the Court's jurisdiction to conduct this exercise, and that s 80(4) of the EPA Act allows the Court to grant or refuse consent as required by this exercise, and therefore do not consider that the DA must be amended before it is able to be determined by the Court.
[11]
Conclusion
For the reasons above, I am satisfied that the Court does have jurisdiction to determine the DA. While the DA overreaches in respect of the extent of development consent required, this does not invalidate the DA or result in there not being a development application for the Court to determine. The DA as was put before the Panel can be put before the Court, and it will fall to the Court to determine first, which aspects of the development require consent, and second, whether consent should, in the circumstances, be granted.
The effect of the findings above on the ongoing conduct of the matter will require further consideration and submissions. As such, I shall hear submissions in relation to Orders 2 and 3 sought in the Motion on 5 May 2017.
[12]
Orders
The Court orders that:
1. Order 1 of the Motion is dismissed.
2. The parties shall make submissions in relation to Orders 2 and 3 of the Motion on Friday 5 May 2017.
3. Costs are reserved.
[13]
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: 09 May 2017
Parties
Applicant/Plaintiff:
Butler Street Community Network Incorporated
Respondent/Defendant:
Northern Region Joint Regional Planning Panel
Legislation Cited (4)
Environmental Planning and Assessment Regulation 2000(NSW)cl 55