Casa v City of Ryde Council

9 In resolving when, if at all, the development consent lapsed, the primary issue to be determined is whether the completion of a condition of the development consent to the satisfaction of the council was a jurisdictional fact which enlivened the council's power to determine that the development consent was operative ("the jurisdictional fact ground").

10 Further, the applicants submit that the decision of the council made on 27 August 2002 was vitiated by error inasmuch as it was made in the absence of any evidence to support it, namely, in the absence of an amended landscaping plan, and therefore, was also manifestly unreasonable ("the no evidence ground and/or Wednesbury unreasonableness ground").

11 Finally, in the alternative, the applicants contend that the council is estopped from denying the representation in a council letter dated 17 December 2004 that the conditions of the deferred commencement had been satisfied and the development consent was operative ("the estoppel ground").

12 For the reasons given below I find against the applicants on all three grounds and decline to make the declaration. I find the development consent lapsed on 27 August 2007. Factual Background and Evidence of the Applicants 13 The facts in these proceedings were largely not in dispute and were conveniently set out in the affidavit of Mr Richard Casa sworn 28 May 2009. Mr Casa was not required for cross examination.

14 In late 2001, Mr Richard Casa prepared a development application to demolish two homes and to erect five villas on the Property. 15 On 4 December 2001, development application LOA01/1143 was made by Orth Constructions on the applicants' behalf. The application included architectural plans numbered 00V.2296.01 prepared by Plan Concepts Pty Ltd. The plans were revised in February 2002 and then twice in April 2002 (Revisions A-C respectively). 16 Upon council advertising the development application, Mr Marchant-Williams made a submission on 6 February 2002, complaining that the driveway would be adjacent to his three main bedrooms and that the noise and disturbance to him and his family would be considerable. He proposed the relocation of the driveway first, to the northern boundary of the Property, and second, to the centre line of the development. 17 Meetings then took place between Mr Marchant-Williams, other objectors and the council, in particular, council officer Ms Sandra McCarry. 18 The council considered the submission on 20 June 2002, and in a report concluded that the driveway was best located where it was originally proposed but it recommended the imposition of conditions to increase the driveway setback to 7 m and to provide denser landscaping along the side boundary to Mr Marchant-Williams' property which would help screen and buffer the noise of the driveway. 19 The report recommended that the development application be approved by the granting of a deferred commencement consent subject to various conditions reflecting the proposed alterations suggested by the council in order to accommodate Mr Marchant-Williams' concerns. In particular, the report stated that (emphasis added): Therefore, it is considered that strict compliance with the 7 m setback be required . It is possible to provide for the required setback, however villa 1 will need to be redesigned…villa 1, at its worst point will have an overall height of 4.4 m above natural ground level, which does not comply with the overall height limit of 4 m. A condition of consent can be imposed requiring the height to be reduced. It is considered that the applicant should demonstrate that the above two requirements can be satisfied and as such Council should only issue a 'deferred commencement' approval until details of the above modifications are submitted to the satisfaction of council. … It is considered that with the imposition of a condition to increase the driveway setback to 7 m, denser landscaping can be provided along the side boundary which will help screen and buffer the noise of the driveway and transfer the impacts from the adjoining property. CONCLUSION This form of development is permissible under the provisions of Ryde Planning Scheme Ordinance, has been designed generally in accordance with the Villa Homes DCP. The proposal is considered satisfactory and should be approved subject to conditions 20 The Development Committee of the council met on 2 July 2002, and the Committee resolved that the recommendations contained in the report of the council dated 20 June 2002 be adopted, subject to changes which are presently not relevant. 21 Development consent No 1143/2001 was thus granted pursuant to s 80(3) of the EPAA on a deferred basis on 16 July 2002 for the development of the Property. 22 Pursuant to the terms of the development consent, the consent was not operative until the matters referred to in Section A (including condition 1) had been submitted to the satisfaction of the council and the council had notified the applicants in writing that the development consent was to become operative. 23 The development consent relevantly stated: Deferred Commencement Development Consent Consent No: 1143/2001

Consent Date: This consent does not become operative until the matters referred to in Section 'A', condition no.1 have been submitted to Council and Council has notified you in writing that the Consent has become operative.

Valid until: 5 years from the date that Council notifies in writing that the Consent has become operative. 24 Section A condition 1 provided that (emphasis added): Section 'A' :- That LDA No. 1143/2001 at 90 - 92 Western Crescent, Gladesville, being Lot 22, Sec K DP 1821 be approved by the granting of 'deferred commencement' consent subject to the following condition: 1. The side setback adjacent to the southern driveway having a minimum setback of 7m, details of which to be submitted to the satisfaction of Council. Details are to include amended architectural plans and a landscape plan including amended details on the southern boundary providing additional dense landscaping to screen the driveway. 25 Section B of the development consent further included condition 4 which stated (emphasis added): Section B:- upon satisfactory compliance with the above requirement being demonstrated to Council, development consent be granted to the proposed development subject to the following conditions:- … 4. A Landscaping Plan, detailing the type and number of planting, in accordance with the landscape concept submitted with the development application, is to be submitted with the Construction Certificate . The landscaping plan to include amendments to the southern boundary with additional dense landscaping to buffer and screen the driveway. 26 In August 2002, the architect produced an amendment to the architectural plans by way of Revision E (00V.2296.01.E). Revision E showed the 7 m setback from the southern boundary and the area to the east, south and west of villa 1 between its boundary walls and that of its yard and driveway were now described as "landscaped". Revision E did not include "amended details" on the southern boundary providing "additional dense landscaping to screen the driveway". It merely repeated the words in an earlier version of the plan, "1 m landscaping strip". No separate landscape plan was provided along with Revision E. 27 On 27 August 2002, the council wrote to Mr Macri of Orth Constructions confirming that it was in receipt of the amended plans dated 12 August 2002 (Revision E) "in accordance with Section A, Condition 1 of the deferred commencement for LDA 1143/2001". It therefore advised that "in accordance with s 80(3) of the Environmental Planning and Assessment Act 1979, you are advised that Section A Condition 1 of the deferred commencement has been satisfied and Local Development Approval No 1143/2001 is operative from 27 August 2002". 28 On or about 16 June 2004, Mr Macri applied for a construction certificate to enable the construction of the five villas on the Property. 29 On 20 July 2004, Mr Sam Pratt of the council wrote to Mr Macri and advised him that it had reviewed the information submitted with the construction certificate application and that a number of the conditions had not been satisfied. In particular, it advised that Section B condition 4 had not been satisfied and that the construction certificate was unsatisfactory. 30 On the same day, Mr Macri wrote to the council, referred to the correspondence to him dated 20 July 2004, and enclosed two copies of the amended landscape plan. 31 Thus as the council conceded at the hearing, the applicants in fact did not submit an amended detailed landscape plan until 20 July 2004. 32 Mr Macri's letter dated 20 July 2004 was acknowledged as having been received by the council on 28 July 2004. It specifically acknowledged confirmation of receipt of the amended landscape plans. The landscape plans bore the number 00V.2296.L1.F and had been prepared by Auscene Landscapes in January 2004. These plans showed amended details on the southern boundary providing additional dense landscaping to screen the driveway. 33 On 5 November 2004, Mr Peter Dewick of the council wrote to Mr Macri referring to his construction certification application and to the council's letter to him dated 20 July 2004. The letter advised that the council had reviewed the information submitted in the application and that it was "still not in accordance with development consent No 1143/2001" because advisory condition 2 of the development consent was still not satisfied and that before the construction certificate could be given, Mr Macri would need to read his conditions of development consent carefully to ensure that all requirements had been met. The council requested the further information by 12 November 2004. 34 On 9 November 2004, Mr Macri advised the council that once the builder had been selected home warranty insurance would be presented and he requested that if council needed any further information or documentation it should contact him. 35 Critically, on 17 December 2004, Mr Dewick of council wrote to Mr Macri, referring only to his letter dated 9 November 2004, noting his request for deferment of the release of the construction certificate and advising as follows: You are advised that Condition 1 under Section A of the deferred commencement has been satisfied with the plans that were lodged with Construction Certificate on 17 June 2004. The Development Consent has been operational from this date and therefore the Construction Certificate would have to be issued and work commenced prior to 17 June 2009. 36 On 9 December 2008, Mr Casa purchased home warranty insurance. 37 On 22 December 2008, the council received the home owners warranty insurance. 38 However, on 28 January 2009, the council wrote to Mr Macri to advise him that the development consent had lapsed on 27 August 2007. This was confirmed again by letter dated 23 February 2009. Application by Applicants to Reopen Their Case

39 During the course of the proceedings counsel for the applicants sought after their evidence was closed, after the evidence of the council was closed and during the course of their submissions, to reopen their case to call further evidence from Mr Richard Casa. It was proposed that Mr Casa give evidence to the effect that he had never received the letter dated 27 August 2002 advising that the development consent had become operative from that date. The application to reopen was opposed by the council. 40 During the course of discussion, however, the applicants conceded that whilst neither Mr Casa nor any of the other named applicants had received the letter, or were aware of its contents on or about the time it was sent, Orth Constructions had both received the letter and had knowledge of its contents.

41 Counsel for the applicants also conceded that, assuming that Ms McCarry's determination of satisfaction in relation to condition 1 of Section A of the development consent was not invalid, the council had satisfied the necessary notification requirements of the development consent to the applicants.

42 Given these concessions, the Court refused to accede to the application, as it would have been of limited utility to do so. Council's Evidence 43 The facts above were amplified by the evidence of the respondent as set out in the affidavits of Mr Peter Dewick, a former employee of the council, sworn 10 June 2009 and Ms Sandra McCarry, a town planner employed by the council, sworn 10 June 2008. Neither of the council's witnesses were required for cross examination. 44 Ms McCarry stated the following in her affidavit: (a) that she is the Senior Town Planner with the council, but that for the period February 1992 to July 2005 she held the position of Environmental Assessment Officer;

(b) that from her recollection of an examination of the files it was her belief that there was no separate detailed landscaping plans lodged with the council by Orth Constructions on 12 August 2002 (00V229601 E and 00V229602 E);

(c) that notwithstanding the absence of any landscaping plan, it was her recollection that for the purpose of her consideration of the plans lodged with the council on 12 August 2002, that these plans showed a 1 m landscaping strip adjacent to the southern driveway of the subject property and an area in excess of 1 m adjacent to the northern aspect of that driveway, and allowed for "additional dense landscaping to screen the driveway" as required by the "Deferred Commencement Condition". She also considered that these plans provided for "the necessary setback the subject of the deferred commencement condition";

(d) that she was aware that there was an "ordinary condition of consent which required the submission of a landscape plan prior to the issue of a construction certificate". Further, that she "was of the opinion that that landscape plan would have to be consistent with the amended architectural plans". It was on this basis that she sent the letter to Orth Constructions dated 27 August 2002 together with the stamped approved plans;

(e) that it was her opinion, and remained her opinion, that "as a result of my consideration of the amended plans dated 12 August 2002 that those plans satisfied the requirements of the Deferred Commencement Condition and that there was sufficient compliance with that condition";

(f) that in her experience as a council officer, and from her knowledge of the usual practice of the council regarding the issuing of approved plans, when the council issued a Deferred Commencement Consent, it only sent the Notice of Determination. It was the practice of the council in 2002 that the council only issued stamped plans when a Deferred Commencement Consent became operative; and

(g) that it was her belief based on her knowledge of the usual practice at the council and her review of the council's files in relation to the development consent, that these procedures were followed in the present case.

45 Mr Peter Dewick stated in his affidavit: (a) that he was a council officer responsible for the development application for the period between November to December 2004, but that he had little independent recollection of the events that had occurred during that period;

(b) that he undertook a review of the development application file on or about early November 2004 but he could not recall why. From his review and "having considered the assessment undertaken by other council officers prior to my review" he recalled that the council required evidence of the payment of the home owners warranty insurance or an owners building permit before it could consider issuing a construction certificate; (c) that he was the council officer responsible for responding to the construction certificate application; (d) that when he wrote the letter dated 17 December 2004 to Orth Constructions, he did so "without undertaking any independent assessment of the Construction Certificate application referred to in" the letter. Rather, he was "merely relying upon the assessment undertaken by the Council officers with carriage of the matter prior to" his involvement;

(e) that in his opinion the letter dated 17 December 2004 was a standard form letter typically sent by the council in circumstances where an applicant requests deferment for "something like the issuing of a Construction Certificate";

(f) that in preparing the letter of 17 December 2004 he had two purposes, first, to note the request for deferment for the release of the construction certificate, and second, to confirm the date that all matters needed to be satisfied by prior to the development consent lapsing;

(g) that the date of 17 June 2004 referred to in the letter dated 17 December 2004 was incorrect but that he did not, "for the purpose of inserting that date, myself determine whether or not the Deferred Commencement Condition had been satisfied and if so, when it had been satisfied";

(h) that to the best of his knowledge he did not at the time of preparing the letter dated 17 December 2004 see the council's letter dated 27 August 2002; and

(i) that if he had seen the letter dated 27 August 2002 then he would have recorded that the Deferred Commencement Condition had been satisfied with the amended plans lodged on 12 August 2002 and that the construction certificate would have to be issued and work commenced prior to 27 August 2007. 46 The respondent also tendered two volumes of material comprising of council's files in relation to the development application and ensuing consent. None of the documents in the two volumes were referred to by the council at any stage during the proceedings. As a consequence, I have ignored them.

Statutory Framework 47 Section 80(3) of the Environmental Planning and Assessment Act 1979 ("the EPAA") then in force provided as follows (emphasis added): (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority , in accordance with the regulations, as to any matter specified in the condition . Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. 48 Section 82(1) and (2) of the Act provided: 82 Circumstances in which consent is taken to have been refused (1) A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires. (2) Nothing in subsection (1) prevents a consent authority from determining a development application after the expiration of the relevant period referred to in that subsection, whether on a review under section 82A or otherwise. 49 Section 80A(1)(h) stated that: 80A Imposition of conditions (1) Conditions - generally A condition of development consent may be imposed if:

… (h) it is authorised to be imposed under section 80(3) or (5), subsections (5)-(9) of this section or section 94 or 94F. 50 Section 95 of the EPAA relevantly stated: 95 Lapsing of consent (1) A development consent lapses: (a) 5 years after the date from which it operates, except as provided by paragraph (b), or (b) in the case of a development consent that is subject to a condition under section 80 (5), 5 years after the date from which the initial development consent operates, or 2 years after the date from which a later or the latest development consent granted in accordance with the condition operates, whichever is the longer. (2) A consent authority, in granting development consent, may vary either or both of the periods referred to in subsection (1), despite that subsection.

(5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse. 51 Finally, cl 95 of the Environment Planning and Assessment Regulation 2000 ("the Regulation") stated: 95 Deferred commencement consent

(1) A "deferred commencement" consent must be clearly identified as a "deferred commencement" consent (whether by the use of that expression or by reference to section 80(3) of the Act or otherwise).

(2) A "deferred commencement" consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.

(3) A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters.

(4) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.

(5) If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters.

(6) If the consent authority has not notified the applicant within the period of 28 days after the applicant's evidence is produced to it, the consent authority is, for the purposes only of section 97 of the Act, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires. Jurisdictional Fact Ground

Applicants' Submissions 52 The applicants' submissions may be summarised as follows: (a) first, s 80(3) of the EPAA establishes as a matter of jurisdictional fact the minimum criteria which are required to be established before the council can reach a determination (or make a determination) of its satisfaction of any condition imposed by a deferred development consent;

(b) in the present case this required the submission of a separate landscape plan as required by Section A condition 1 which included "amended details on the southern boundary providing additional dense landscaping to screen the driveway";

(c) this was never met insofar as, the applicants stated, there was no separate detailed landscaping plan submitted to the council by them until 20 July 2004;

(d) accordingly, the necessary jurisdictional fact to ground the power, as imposed by the council in its initial resolution to grant the deferred development consent could not be established; and

(e) therefore, the requisite satisfaction could not be reached by the council and to the extent that the council granted the deferred development consent it did so absent any power and was therefore invalid. 53 That the provision of a separate landscaping plan including these details was a necessary element of condition 1 of the development consent was reinforced by the fact that in condition 4 of Section B almost identical wording was used. Therefore, it was not correct to ignore condition 1 pending the completion of condition 4 as Ms McCarry did. Given that there was no satisfaction of condition 4 as at July 2004, there could not have been any satisfaction of condition 1 in August 2002.

54 Thus, the applicant submitted, Ms McCarry's decision was invalid and along with it the notification of the operative effect of the development consent on 27 August 2002.

Council's Submissions 55 The council submitted that a proper construction of s 80(3) of the EPAA militated strongly against the requirement of a jurisdictional fact (Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [44]-[67]). Rather, s 80(3) of the Act simply enabled the imposition of a condition and the satisfaction of it by the council.

56 The council submitted that even if this analysis was incorrect, then on any reasonable construction of condition 1 of Section A of the consent, the primary requirement of that condition was the provision of the 7 m setback. Provided the 7 m setback was met there had been substantial compliance with the condition and the alleged non-compliance of the additional detail as required by a separate landscaping plan was not invalidating. Accordingly, Ms McCarry's determination of satisfaction of the condition and the notification of the operative effect of the development consent was valid as at 27 August 2002 and the consent had lapsed on 27 August 2007. Consideration 57 As stated above, the applicants contend that the submission of a landscape plan that complied with the terms of Section A condition 1 was a jurisdictional fact the existence of which was a precondition to the valid exercise by the council of its power to determine that the development consent was operational.

58 In Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185 Biscoe J explained the concept of a jurisdictional fact as follows (at [93]): [93] The expression "jurisdictional fact" is used to identify a criterion, the satisfaction of which enlivens the exercise of a statutory power. If the criterion is not satisfied, then the decision purportedly made in the exercise of the power will have been made without the necessary statutory authority required of the decision maker: Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, 236 CLR 120 at [43]. If a fact is a jurisdictional fact, the existence or non-existence of that fact may be determined by the Court on the evidence before it: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 at [36], [40]. Questions of jurisdictional fact turn on the construction of the relevant statute: Timbarra at [37]. 59 The concept was also considered in detail in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 in the context of s 77(3) of the EPAA. Spigelman CJ (with whom Mason P and Meagher JA agreed) stated (at [37]-[44]): [37] The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See e.g. Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122 at 125; 63 WN (NSW) 31 at 33. The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality). ( Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517).

[38] "Objectivity" and "essentiality" are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of "essentiality" will often suggest "objectivity".

[39] Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes "jurisdictional fact" as some kind of "doctrine" is, in my opinion, misconceived. The appellation "jurisdictional fact" is a convenient way of expressing a conclusion - the result of a process of statutory construction.

[40] Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.

[41] Where the process of construction leads to the conclusion that parliament intended that the primary decision maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.

[42] Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: see Craig, Administrative Law , 3rd ed (1994) at 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198C. Where such words do not appear, the construction is more difficult.

[43] As Sir Frederick Jordan said in Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 289: "When the jurisdiction of a court is limited, the question whether a particular matter is one the actual existence of which, notwithstanding any decision of that court, is a condition of its having jurisdiction to proceed to determine the matters which lie within its general jurisdiction, or is merely one of the matters which arise for its decision in the exercise of its general jurisdiction, is frequently one of considerable difficulty. It commonly arises in relation to a statute conferring jurisdiction in which the legislature has made no express pronouncement on the subject, and in which its intention has therefore to be extracted from implications found in inferences to be drawn from the language it has used."

[44] The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker or, in some other way, necessarily arises in the course of the consideration by that decision maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions. 60 More recently the High Court has said in Gedeon v Commissioner of New South Wales Crime Commission; Dowe v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 (at [43]-[47]): [43] The expression "jurisdictional fact" was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

[44] The concept appears from the following passage in the reasons of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (56): The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act - it is a condition of jurisdiction. [45] An instance in the LECO Act is the requirement in s 6(1) that the chief executive officer first have considered an application made under s 5 for the authority to conduct a controlled operation. The text of these provisions is set out earlier in these reasons.

[46] Section 7(1) of the LECO Act is expressed in the terms of prohibition and thus stands rather differently. The provision does not stipulate any criterion the satisfaction of which enlivens the exercise of a power or discretion. Rather, s 7(1) delimits the scope for any exercise of authority by a chief executive officer. There is no statutory power to grant an authority where the proposed operation involves any participant in the operation of any of the activities identified in paras (a), (b) and (c). That is the force of the expression "must not be granted" in s 7(1). It conveys the notion of a contraction in the content of what would be the power otherwise conferred by s 6.

[47] If it be established upon a "collateral" attack which is decided in a ruling at trial under s 138 of the Evidence Act , or other form of "collateral" attack or (if the proceeding be appropriate) upon judicial review, that, for example, the authority in question was in relation to a proposed operation involving any participant engaging in conduct that was likely to seriously endanger the health or safety of that or any other participant or any other person, then the grant of the authority was beyond power. No question of abuse of discretion or unreasonable decision making arises. The question is answered at an earlier stage of legal analysis. The contrary conclusion by the Court of Appeal (57) appears to have proceeded from a misconstruction of the statutory provisions, in particular of the interrelation between ss 5, 6 and 7. 61 In Barrick Australia Ltd v Williams (2009) 168 LGERA 43 the Court of Appeal held that the request for modification of an approval under Pt 3A of the EPAA within the terms of s 75W was a precondition to the exercise of power under that section notwithstanding the absence of any reference to the satisfaction or opinion of the Minister in s 75W that such a request had been made. Further, the language, statutory context and purpose of s 75W indicated that the assessment of whether the request was for a modification within the scope of that provision was not a jurisdictional fact, and therefore, was not for the Court to determine but was a matter for the Minister (at [38]-[42] and [53]).

62 After reviewing the recent authorities on jurisdictional fact, Biscoe J in Hill Top expanded upon the propositions concerning that concept that he had earlier very usefully summarised in Dates v Roads and Traffic Authority (NSW) (2009) 167 LGERA 82. He listed them as follows (at [102]): [102] In Dates v Roads and Traffic Authority (NSW) [2009] NSWLEC 82, 167 LGERA 82 at [11] - [12] (decided before Barrick ), I endeavoured to summarise propositions concerning the concept of jurisdictional fact that the authorities supported. I would expand that summary a little as follows: (a) the expression 'jurisdictional fact' generally 'is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker': Gedeon at [43], Enfield at [28]; (b) parliament can make any fact a jurisdictional fact by an intention that it must exist in fact (objectivity) and that its absence or presence will invalidate action under the statute (essentiality): Timbarra at [37], Dowe at [30]; (c) the normal rules of statutory construction apply when determining whether a factual reference is a jurisdictional fact: Timbarra at [39]; (d) where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact, then a court cannot itself determine the existence or non-existence of the fact, although (if it is in issue) the court will inquire, for example, as to whether the decision was manifestly unreasonable in the Wednesbury sense: Timbarra at [41]; (e) if the factual reference is preliminary to the exercise of statutory power, it is likely to be a jurisdictional fact: Timbarra at [44]. There is a distinction between a fact that is an essential preliminary (ie legally antecedent) to the decision-making process and a fact to be adjudicated upon in the course of the decision-making process: Timbarra at [46]. (f) the existence of a jurisdictional fact is often signalled by expressions such as 'where X exists' or 'when X exists' or 'if X exists', then a person is empowered or obliged to act or refrain from action: Anvil Hill at [21]; (g) where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker - for example, 'opinion', 'belief', 'satisfaction' - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that the mental state is a jurisdictional fact: Timbarra at [42]; Enfield at [34]; Woolworths at [13], [25]; Anvil Hill at [21]. Such a reference to a mental state may be implied: Barrick . A jurisdictional fact includes the mental state of a decision-maker as to the existence of X where the statute mandates that that mental state enlivens the exercise of the statutory power. In such a case, judicial review by a court is limited to determining (a) whether that mental state existed and does not extend to determining whether X existed or (b) whether that mental state was reasonably open on the facts in the Wednesbury sense ie manifestly unreasonable: Timbarra at [41] - [42]; Barrick at [35] - [36], [38]; (h) the fact that a judgment is required on a matter of potentially significant disputation suggests that it is less likely to be intended to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ: Timbarra at [89]; (i) the scope and purpose of the legislative scheme may be an indicator of whether or not a factual reference is a jurisdictional fact: Woolworths at [30]; (j) a jurisdictional fact may be suggested by a prohibition of conduct unless a specified fact exists: Enfield at [34], Woolworths at [44]; (k) the location of a factual reference in a statutory formulation concerned with the requirements of an application is a significant factor suggesting that the factual reference is jurisdictional: Timbarra at [51]"; (l) inconvenience arising from a jurisdictional fact conclusion is relevant to determining the legislative intention: Timbarra at [91]. 63 In Hill Top his Honour held that whether a panel was a "panel of experts" within the meaning of s 75G of the EPAA was not a jurisdictional fact. This was because properly construed s 75G evinced no intention by parliament to make the establishment of the fact that the panel was comprised by experts a jurisdictional fact, particularly given that the inconvenience arising from such a conclusion was contrary to the legislative intention to streamline the Pt 3A process (at [103]).

64 Having regard to the propositions and decisions referred to above, a proper construction of s 80(3) of the EPAA reveals the existence of a "particular kind of jurisdictional fact" only in the limited sense described in Timbarra (at [42]), namely, that the existence of the mental state of the council (its satisfaction) is a jurisdictional fact which enlivens the exercise of statutory power rendering the development consent operational. Judicial review by this Court is accordingly confined to determining whether the mental state existed and if so, whether that mental state was reasonably open on the facts in the Wednesbury unreasonableness sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It does not permit the Court to inquire into the existence of the facts underlying the achievement of the requisite mental state.

65 The applicants contend that the mental state contained in s 80(3) of the EPAA is a factual reference preliminary to the exercise of statutory power which is strongly suggestive of a parliamentary intention to establish a jurisdictional fact (Timbarra at [44]). I do not agree.

66 The power to impose a condition under s 80(3) derives from s 80A(1)(h) of the Act. The power to impose the condition is not preconditioned upon the existence of any fact, unlike, for example, the power to grant consent for a development in s 80(1) of the EPAA, which is, by contrast, preconditioned on the fact that to do so must not result in a contravention listed in s 80(2). Rather, s 80(3) merely confirms the power of the consent authority to grant a development consent subject to a condition fitting the description contained in that provision should it elect to do so. The power to grant a development consent, and in particular a conditional deferred development consent, derives from ss 80(1) and 80A(1)(h) and not simply s 80(3). Viewed this way there is no jurisdictional factual reference to be made in the statutory conferral of power in s 80(3).

67 To the extent that the applicants rely on cl 95(2) and (5) of the Regulation in support, cl 95(2) merely states that the deferred commencement consent must clearly distinguish between those conditions requiring the consent authority to attain a mental state from those that do not. Clause 95(5) of the Regulation goes on to specify that once the required mental state is achieved by the consent authority as to the matters specified in the condition, then the authority "must notify the applicant whether or not it is satisfied as to the relevant matters". The operation of neither cl 95(2) nor (5) of the Regulation themselves enliven the operation of the development consent. Rather, it is the attainment of a state of satisfaction by the consent authority as to any matter specified in the condition together with the notification that render the development consent operative.

68 Therefore, at its highest the power in s 80(3) which is engaged to permit the development consent to become operational may be expressed "as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs" and the existence of the satisfaction is treated "as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker" (Corporation of the City of Einfeld v Development Assessment Commission (2000) 199 CLR 135 at [34]). This militates strongly against the establishment of a jurisdictional fact (Gedeon at [32]-[33]).

69 Moreover, whether a condition in a deferred development consent has been satisfied, is "an emphatic instruction to the decision-maker" (Dowe v Commissioner of New South Wales Crime Commission (2007) 177 A Crim R 44 at [32]) to evaluate the evidence before him or her and to reach a conclusion. It is not an objective fact that is to be determined on the basis of evidence adduced before the Court, but is a subjective matter for final determination by, in the present case, the evaluating council officer, who will have the necessary expertise and knowledge to make such an evaluation on behalf of the council, and in addition, which requires a judgment on "a matter on which reasonable minds may differ" (Timbarra at [89]). Again this is not redolent of jurisdictional fact.

70 Finally, there is nothing in the language of s 80(3) of the EPAA that prohibits any conduct on the part of the consent authority if the mental state is not achieved (the consent simply does not become operational because the condition is not met), nor is guidance given as to how, if such a condition is imposed, the mental state is attained. These matters also do not support the imposition of a jurisdictional fact in s 80(3).

71 The applicants further submitted that in making its decision absent condition 1 of Section A having been met, the council changed the status of the deferred commencement consent to a consent which was no longer deferred and that in so doing the council acted beyond power. The applicants submitted that in making the resolution which contained the conditions of deferred consent, the council circumscribed for itself the limits of its power or jurisdiction to grant the consent.

72 I do not agree. The source of the council's power to grant the development consent is statutory. The source of the council's power to grant a conditional deferred consent is that contained in ss 80(1), (3) and 80A(1)(h) of the EPAA. Provided the council acts within the ambit of the conferral of power it will be acting lawfully and this Court cannot interfere with its decision. If the statute does not grant power subject to the establishment of a jurisdictional fact then the council cannot do so by way of resolution. It is the language of the statue that establishes the existence of a jurisdictional fact and not the language of the council resolution. 73 Accordingly, I find that the Court may inquire as to whether the council was in fact satisfied that condition 1 of Section A had been met, but not as to the content of that satisfaction.

74 The evidence of Ms McCarry makes it plain that satisfaction was reached. Ms McCarry stated that she considered the amended architectural plan, the absence of a separate landscape plan and the conditions of the ordinary consent and reached the requisite mental state. Ms McCarry unequivocally stated that she was satisfied that the additional details on the amended architectural plan in relation to landscaping were sufficient. This was enough to validate her decision.

75 However, even if I am wrong and the power contained in s 80(3) was preconditioned upon the establishment of a jurisdictional fact, upon a proper construction of the development consent, it is plain that the primary matter about which the requisite mental state was necessary was the 7 m setback and there can be no doubt that the council was satisfied that this aspect of the condition had been fulfilled. For the applicants to succeed they must therefore establish that strict compliance with the condition by way of the provision of a separate detailed landscape plan was required in order for the exercise of power by the council to be valid. In my view it was not.

76 First, the proper construction of s 80(3) reveals that it was not the intention of the legislature to invalidate an act done by the council in breach of condition 1 of Section A. As the High Court stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (at [91] quoted in Hill Top at [104]): [91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied (63); there is not even a ranking of relevant factors or categories to give guidance on the issue. 77 When regard is had to the permissive language of the relevant provision (directed as it is to permitting a particular type of condition to be imposed as part of the power to grant a development consent if the consent authority chooses to do so) and the broad scope and objects of the EPAA contained in s 5 of that Act, I can discern no legislative intention to invalidate the consent authority's determination of satisfaction with the condition (thereby rendering the consent inoperative) merely because the landscape plan was not provided at that stage. To do so would not, in my view, encourage the promotion and co-ordination of the orderly and economic use and development of land (s 5(a)(ii) of the Act).

78 Second, a proper construction of condition 1 compels the conclusion that there has in any event been substantial compliance with it.

79 The principles with respect to the construction of development consents are well established: (a) first, the consent must be framed in clear terms and conditions specified with certainty. Any failure to do so is the responsibility of the council who must take the consequences accordingly ( Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 at 324 and Baulkham Hills Shire Council v Ko-veda Holiday Park Estate (2009) 167 LGERA 395 at [95]); (b) second, the development consent must be a stand alone document and other documents can be referred to only when these are incorporated into the consent explicitly or implicitly ( Rich v Lennox Palms Estate [2009] NSWLEC 167 at [24]); and (c) third, unless a document is incorporated into the consent, "[a]nother principle to be kept in mind in construing the condition is that a development consent is a document in rem, so that communications between the parties do not form part of the matrix relevant to the construction…However the Court can have regard to objective circumstances, including the physical circumstances, the plan accompanying the development application, and matters relating to title" ( Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [41]).

80 When regard is had to the terms of the deferred commencement consent and to the language of condition 1 of Section A, then irrespective of the objective circumstances surrounding its imposition, which, in my view, would include the report of the council concerning the submissions of the objectors, it is apparent that: (a) the critical component of the condition was compliance with the 7 m setback. It was details of this setback that had to be submitted "to the satisfaction" of the council;

(b) this was because the primary concern of the council in approving the development application was to minimise the noise of the driveway and the impact it would have on the amenity of the adjoining property; and

(c) as a secondary matter, the details of the setback were to include a landscape plan which included the details on the southern boundary of the additional dense landscaping to screen the driveway. That this was a secondary matter is consistent with the existence of condition 4 of Section B which stated that a confirming landscaping plan with the same details was to be submitted with the construction certificate application.

81 The primary or mandatory requirement of condition 1 Section A, (the provision of the 7 m setback) having been met in the submitted amended architectural plan, I find that in any event there was substantial compliance with the condition sufficient to validate the decision of the council (Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81 at [60]-[90] and McGovern v Ku-Ring-Gai Council (2008) 161 LGERA 170 at [198]-[201]).

The No Evidence and/or Wednesbury Unreasonableness Ground

82 The applicants submitted that Ms McCarry's decision was a decision that was effectively made without any evidence because no separate detailed landscape plan existed at the time.

83 In the alternative, the applicants argued that to grant the development consent in the absence of the amended landscape plan when it was required by condition 1 of Section A was manifestly unreasonable.

84 To be successful on the no evidence ground the applicants must demonstrate that either Ms McCarry's decision that she was satisfied that the matters in condition 1 of Section A were met was based on either no evidence whatsoever capable of justifying it or was based on an absence of probative evidence or material to support it. Put another way, that the decision was perverse (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355, 358-360, Bruce v Cole (1998) 45 NSWLR 163 at 188 and Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at [76]).

85 In relation to Wednesbury unreasonableness, as Pain J in Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 (at [140]-[141]) cautioned: 140 As identified in many cases, a ground of challenge to an administrative decision based on manifest unreasonableness grounded in Wednesbury is confined and the criteria must be stringently applied; see Weal v Bathurst City Council at [27] per Mason P, Attorney-General (NSW) v Quin (1990) 170 CLR 1, Westfield Management Ltd v Perpetual Trustee Company Limited and Anor [2006] NSWCA 245 per Tobias JA at [71]. The limits of judicial review are also identified in numerous cases as not being concerned with the merits of a particular decision; Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518; [1986] 1 All ER 467 at 474 inter alia. 141 In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ and McHugh J at [44]: In Wednesbury itself, which was concerned with an issue as to whether the imposition of a condition imposed by a licensing authority was so unreasonable as to be beyond the proper exercise of the authority's powers, Lord Greene MR said that what a court may consider unreasonable is a very different thing from "something overwhelming" such that it means that a decision was one that no reasonable body could have come to. As Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd , when the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another "a court should proceed with caution … lest it exceed its supervisory role by reviewing the decision on its merits". This was cited in Save Our Street by Biscoe J at [31] with approval. His Honour also cited with approval Rares J in Tran v Minister for Immigration and Multicultural Affairs (2006) 235 ALR 78 at [27]-[29]: … that between its extreme ends are many categories of decision with which the courts might not agree or which they could regard as unreasonable but which a reasonable person could have made.

86 In my opinion, the applicants cannot succeed on this ground. First, the ground is, as explained above, based on an erroneous conception of the significance of the separate landscape plan. Second, there was a plan that was submitted that showed details of the 7 m setback and provided for a 1 m "landscaping" strip. Accordingly, there was probative evidence upon which the decision of Ms McCarry was based. To inquire any further into the sufficiency of the evidence upon which Ms McCarry's decision was based is to impermissibly inquire into the merits of the decision-making process of council (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

87 The absence of a separate detailed landscape plan when this was not the primary requirement that Ms McCarry had to be satisfied of pursuant to the condition and when the plan submitted allowed for a 1 m "landscaping" buffer, does not render her finding of satisfaction "contrary to the overwhelming weight of the evidence" (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156). Neither, in these circumstances, can the decision be described as "so unreasonable as to be beyond the proper exercise of the [consent] authority's power" (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [44]), nor was it made in the absence of any real and genuine consideration of the condition by the council (Weal v Bathurst City Council (2000) 111 LGERA 181 at [80] and Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 at [37] and the authorities referred to in Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 at [99]-[100]). Had the plan not made provision for the 7 m setback but the state of satisfaction had nevertheless been reached by Ms McCarry, then the applicants might have been on firmer ground.

The Development Consent Therefore Lapsed on 27 August 2007

88 There being nothing further that was required for the council's determination to be valid and given the concession made by the applicants that valid notification of the decision had taken place on 27 August 2002, irrespective of whether or not Mr Casa or any of the applicants had in fact received the letter, I therefore find that pursuant to s 95(6) of the EPAA the development consent lapsed five years after this date, that is to say, on 27 August 2007.

Mr Dewick's Letter 89 The applicants did not appear to dispute the proposition put by the council that once the power under s 80(3) of the EPAA was validly exercised and the consent became operative, the council was functus officio in respect of this aspect of the development consent and any purported further exercise of power by Mr Dewick in this regard in his letter of 17 December 2004 would be ultra vires. Rather, the applicants premised their arguments in respect of Mr Dewick's letter on the invalidity of Ms McCarry's decision.

90 If I am wrong about the validity of Ms McCarry's decision a consideration of the validity of Mr Dewick's purported decision on 17 December 2004 is necessary. This is because in order for the applicants to succeed they must demonstrate not only the invalidity of Ms McCarry's decision, but in addition, the validity of Mr Dewick's letter of 17 December 2004 for there to be an operational development consent.

91 The applicants submitted that the notification letter of Mr Dewick was valid because Mr Dewick, by relying on the assessment of council officers for his review of the council file, had determined that condition 1 of Section A had already been satisfied and that his letter dated 17 December 2004 acted as notification of the operative effect of the consent as at that date.

92 That the letter of 17 December 2004 was in response to the construction certificate application did not matter because it was plain from the terms of the letter that in turning his mind to the construction certificate application Mr Dewick had also separately turned his mind to and made an assessment of the satisfaction of condition 1 of Section A of the deferred development consent. So much so was plain from the words, "you are satisfied that condition 1 under Section A of the deferred commencement has been satisfied". 93 In the alternative, the applicants submitted that Mr Dewick was entitled to rely on the assessment and determination of the council officers before him who had reached the requisite satisfaction and that his letter was a notification only of the operative commencement of the consent. Either way, it was argued, the mental state had been reached by the council, notification had occurred and the consent was operative as at the date of the letter.

94 The council contended that Mr Dewick's purported decision was not valid because while it was conceded that Mr Dewick had made a mistake in not taking into account the letter of 27 August 2002, the fact remained that, first, he did not direct his mind at all to the amended architectural plan (as a consequence of not having seen the earlier letter), and second, the letter dated 17 December 2004 concerned the construction certificate application and was not a decision to be made under s 80(3) of the EPAA. 95 Therefore there was no evidence that Mr Dewick had turned his mind to the requirements contained in condition 1 of Section A as required and no such inference could be drawn. Rather, the evidence was to the contrary given his express disavowal of having determined himself "whether or not the Deferred Commencement Condition had been satisfied and if so, when it had been satisfied". Instead, his evidence was that "for a reason I cannot now recall, I simply inserted the date 17 June 2004…I now see that that date was incorrect."

96 The council further submitted that Mr Dewick could not rely on what Ms McCarry or any other council officer had done by way of assessment and determination. It was he and he alone who was required to attain the necessary mental state for the purpose of s 80(3) of the EPAA.

97 Mr Dewick's oversight in failing to take into account the letter of 27 August 2002 was, on any view, regrettable. The language in his letter dated 17 December 2004 purports, if read in isolation, to make an assessment of satisfaction in relation to condition 1 of Section A. However, when the correspondence is read as a whole this initial impression proves to be misleading. In my opinion, it is clear that Mr Dewick, as he states unequivocally in his affidavit (about which he was not cross examined), had not made an independent assessment of the satisfaction of condition 1 Section A as required by s 80(3) of the EPAA, but was reiterating what he understood to be the position from his review of the council file (albeit erroneous) and that he was turning his mind to the construction certificate application. Therefore, the letter of 17 December 2004 does not amount to a decision made on that date by Mr Dewick that the council was satisfied that condition 1 had been fulfilled. At most it can amount to a notification of a decision made earlier by the council.

98 If, as is clear, Mr Dewick did not himself reach the required state of satisfaction and that he was, as the applicants contend, relying upon the prior mental state of the council formed at some earlier point in time in respect of condition 1 Section A (presumably when the amended landscaping plans were lodged on 20 July 2004), was his notification nevertheless sufficient to render the consent operative? In my view it was.

99 I accept the applicants' submission that the inference to be drawn from a review of the council file is that if not on 30 July 2004, when Mr Sam Pratt reviewed the outstanding conditions and ticked that condition 4 of Section B had been satisfied by the submission of amended detailed landscaping plans (condition 4 of Section B containing virtually identical language with respect to the landscaping plan requirements as condition 1 Section A), then at least by 5 November 2004 when the council wrote to Orth Constructions and nominated only advisory condition 2 as the "conditions of consent [that] have still not been satisfied", it can be inferred that condition 1 of Section A had been met to the satisfaction of the council. The author of the 5 November 2004 letter was Mr Dewick. Mr Dewick's evidence was that he recalls that when he undertook the review of the file in early November 2004 he "considered the assessment undertaken by the other Council officers prior to my review" and recalls "that there was only one nominated matter outstanding before the Council could consider issuing a Construction Certificate". This was clearly not the satisfaction of condition 1 of Section A.

100 Section 80(3) only refers to the applicants having to satisfy "the consent authority" of the matters specified in the condition and not a specific consent authority officer. In particular, not the officer who notifies the applicants of the operative effect of the development consent. This term is broad enough to encompass the previous assessments of the council officers. 101 Thus the consent authority having reached the requisite mental state in respect of condition 1 Section A by, at the latest, 5 November 2004, the letter of notification written by Mr Dewick on 17 December 2004 enlivened the consent even though he did not have that mental state when he wrote that letter. This is because the letter was not the decision of the council as to its satisfaction but was the notification by Mr Dewick of the council's mental state arrived at earlier by previous council officers. Both were necessary for the development consent to become operative. Both occurred.

102 Accordingly, if Ms McCarry's decision is invalid, because Mr Dewick's letter was effective to notify the applicants that the development consent had become operative, then the consent will not lapse until 17 December 2009.

103 If, however, I am wrong about both Ms McCarry's decision and Mr Dewick's notification, and neither were valid, then by operation of the EPAA the consent has lapsed.

Applicants' Submissions 104 The applicants submitted that the council is estopped from denying the correctness of the representation in the letter of Mr Dewick of 17 December 2004 that the development consent was operative from that date. In so doing, the applicants conceded that if the decision made by Ms McCarry was valid, then no question of estoppel arose. It was only if the Court found that Ms McCarry's determination was invalid that the estoppel operated to prevent the council from contending that Mr Dewick's actions were not a valid exercise of council power. Whilst given my findings about the validity of Mr Dewick's letter I need not consider the estoppel ground, I nevertheless do so for the sake of completeness. 105 It was agreed by the parties that if the circumstances did give rise to an estoppel, then there was no question that detriment had been suffered by the applicants to the extent that steps had been taken and expenses incurred in preparing and lodging the construction certificate application and in obtaining home owners warranty insurance. Further, critical appeal deadlines had now passed.

Council's Submissions 106 The council asserted that no estoppel arose both as a matter of fact and as a matter of law. 107 It did not arise as a matter of fact because the estoppel by representation included the words "work commenced prior to 17 June 2009" in Mr Dewick's letter and thus the council, although acknowledging that detriment had been suffered, submitted that there was no evidence whatsoever of reliance on the representation because there was no evidence of any physical commencement of work as required by s 95 of the EPAA (Zaymill Pty Ltd and Maskim Holdings Pty Ltd v Ryde City Council [2009] NSWLEC 86 and JMS Capital Pty Limited v Tweed Shire Council [2006] NSWLEC 535). 108 As a matter of law the estoppel argument failed because, it was submitted: (a) this was not, contrary to the assertion of the applicants, a representation as to fact thereby permitting an estoppel to be raised. Rather, this was a representation as to law, namely, that the requirements of s 80(3) of the EPAA had been satisfied and that the consent was now operational; and

(b) it constituted a fetter on the exercise of power by the council to carry out its functions which was against public policy. Consideration 109 In Ku-ring-gai Council v Minister for Planning [2008] NSWLEC 174 Biscoe J summarised the position in relation to estoppel in administrative decision-making in Australia as "it having been held in the High Court that no doctrine of administrative estoppel has emerged in Australia" (at [92] citing Annetts v McCann (1990) 179 CLR 596 at 605; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [69]).

110 It is perhaps due to the unsettled scope of estoppel in administrative decision-making (see also Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 208; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 17-18 and Aronson, Dyer and Groves, Judicial Review of Administrative Action, (4th ed), pp 392-402) that it has had a limited role to play in planning proceedings.

111 The authorities relating to estoppel in a planning context were comprehensively reviewed by Pain J in Council of City of Sydney v Waldorf Apartments Hotel Sydney Pty Limited (2008) 158 LGERA 67 (at [64]-[67] and [70]-[72]) 64 A number of cases have decided that estoppel based on representation by conduct cannot arise in relation to development consents not granted in accordance with statutory requirements because of the principle that statutory authorities should not be estopped from carrying out their public duties under the EP&A Act, often in reliance on Southend-on-Sea (1962) a case also referred to in Brickworks (see [62] of these reasons). In Coffs Harbour Shire Council v Ben Haul Industries , the respondent had sought approval to open a gravel quarry. The council granted consent but later formed the opinion that it had erroneously done so since the proposed use was in fact designated development. The argument that the council was estopped from contending that it did not grant a consent which was effective in law was rejected. Perrignon J said at 397: In the present case I am of the opinion that no estoppel arises to prevent the Council from exercising the statutory duties and discretions which are imposed upon it by the Environmental Planning and Assessment Act and which it has not yet exercised. I think that the general principle which was enunciated in the Southend-on-Sea case, and which is set out above, should be applied. 65 This decision was followed in Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127. This case involved an appeal against a council decision declaring that a development consent, previously granted conditionally, was null and void. Stein J held that the development consent was invalid under the relevant planning controls and that the council was not estopped from maintaining that the consent was a nullity. 66 In Sammut , the Court of Appeal considered an appeal from this Court where the respondent had sought consent from the council to erect a shed on his land in order to operate a tractor repair business. The council purported to grant consent and the shed was constructed. Both the council and a neighbour had commenced proceedings in this Court seeking declarations as to the invalidity of the consent. Mason P (Powell JA and Young CJ in Eq concurring) referred to Windeyer J in Brickworks and said at [57]: The respondent contended that the council at least was estopped from challenging its own consent on the basis of ultra vires. The judgment of Windeyer J in Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568 at 577 [LGERA 229] was invoked. Whatever that passage indicates, it does not represent a decision that an ultra vires act, indubitably established in fact, can never be challenged at the suit of the administrator who did it (see generally Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211-214 per Gummow J). In my view Stein J (as he then was) was correct to decide that the public interest in the carrying out of statutory duties requires that a Council is not estopped from asserting that a prohibited use to which it had previously granted conditional consent is invalid ( Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127). 67 In Vitone (at 134) McClellan J held that a council may be estopped by its conduct from denying that its consent had been validly granted but that this would only be in cases where the council had made an assertion in respect of specific facts as opposed to questions of law. McClellan J reviewed the authorities including Ben Haul Industries , Holidays A-Float Pty Ltd and Sammut . His Honour referred to the decision of Windeyer J in Brickworks as support for his statement that if a council has stated that it has carried out the necessary process and has made a decision to grant a consent within its jurisdiction then it may be estopped from denying that development consent has been granted. … 70 The difficulty for both the Council and the respondents (and the Court) thrown up by the circumstances of this case were identified by Hutley JA (Glass and Samuels JJA concurring) in FN Eckold Pty Ltd v Auburn Municipal Council (1975) 34 LGRA 114 at 116-117, albeit in the context of whether a council can be estopped from arguing the invalidity of an approval which it has given. His Honour stated: The question as to whether a council can be estopped from setting up the invalidity of an approval which it has given is a question of great difficulty. On the one hand, one has the citizen involved in multifarious controls emanating from public bodies whose operations he cannot understand and on the other hand one has the public bodies enmeshed in a similar complex of rules required to protect public interests. The citizen dealing with a public body on the one hand should be able to rely upon any authorisation emanating from it so that he is unconcerned to see whether or not all proper steps have been complied with prior to the issue of the approval. On the other hand it may be felt that some consequences of approvals are so serious that if proper procedures are not adopted by the statutory body itself, it should be required to exercise its authority even to the extent of repudiating its own consent. These issues are not conclusively solved by application of the maxim that there is no estoppel to prevent a body exercising its statutory powers. The purpose of the powers themselves and the nature of the representation by the statutory body cannot be ignored. A representation as to what the council has itself done, e.g., that it had complied with every formality necessary for the granting of a valid approval, may be in an entirely different position from a representation that an objective fact about which the enquirer can satisfy, and should satisfy, himself, does or does not exist. That there can be estoppels against statutes is established by the judgment of the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 and the dissenting judgment of Asprey J in Barilla v James (1964) 81 WN (Pt 1) 457 [[1964-5] NSWR 741]. However, it does not fall to this Court to have to solve the difficult question as to the limits of the principle. 71 I note that this passage was referred to in Sydney City Council v Zizza (1989) 67 LGRA 224 at 227 by Bignold J considering in obiter whether a council can be estopped from setting up the invalidity of an approval it has given. He noted that several prior decisions of the Court had strongly asserted that ("estoppel cannot operate to prevent or hinder the performance of a statutory duty …") as found in Southend-on-Sea . His Honour referred to Trimboli v Penrith City Council (1981) 48 LGRA 323, Ben Hall Industries and Baulkham Hills Shire Council v Cosmopolitan Homes No 2 Pty Ltd (1986) 61 LGRA 200. In Zizza Bignold J held that the estoppel argument raised in that case ought not be allowed to defeat the operation of the EP&A Act. He referred to the Kok Hoong decision of the Privy Council referred to by Hutley JA in Eckold (see [70]). As part of his reasoning (at 231) he considered that decision and asked himself whether the EP&A Act: can be seen to represent a social policy to which the Court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise. 72 The principal that statutory authorities should not generally be estopped by their conduct from carrying out their public functions is well recognised in Australian authorities referred to above including Kurtovic , Quin and Lam . Apart from Vitone , the cases decided in this Court referred to above, including Sammut in the Court of Appeal, have generally upheld that principal in holding that a council is not generally estopped by its conduct from exercising its statutory authority under the EP&A Act in circumstances where there has been reliance on the grant of development consent which was later repudiated. Because of the circumstances of this case where the Council has not exercised its statutory powers under the EP&A Act to grant consent but rather its officers represented that an exercise of power was not required suggest even more strongly that the Council should not be estopped from enforcing environmental planning instruments in force, considering Southend-on-Sea and the numerous cases which have relied on it. That difference in circumstance is why Windeyer J in Brickworks distinguished Southend-on-Sea .

112 Having regard to the authorities I reject the applicants' estoppel claim. I do so notwithstanding that I accept the applicants' submission that in order to demonstrate detrimental reliance it is not necessary to prove that physical work has commenced. It is enough to show that by late 2008 monies have been expended in lodging a construction certificate application and in obtaining home owners warranty insurance. Mr Casa stated in his affidavit that it was in reliance on Mr Dewick's letter that he took these measures and incurred these expenses. His evidence was not challenged in cross examination and I accept it.

113 The situation here is analogous to the communication of a grant of a development consent which is later sought to be repudiated by a council. As the authorities above demonstrate, rarely is a council estopped from doing so as a matter of public policy. In the present case the applicants assert that the council is estopped from denying the validity of an act which the council asserts is beyond power. That act is the communication of a decision which the council contends was not validly made, or alternatively, the reaching of a state of satisfaction as to the fulfilment of a deferred commencement condition and the notification of it in circumstances when the power to do so was already spent by reason of the decision on 27 August 2002. Either way, the public interest in the council carrying out its functions under the EPAA in approving the development consent and in issuing a construction certificate require that the council is not estopped from asserting that a prohibited decision, viz, that of Mr Dewick, is of no effect.

114 Furthermore, while there is no bright line between representations as to fact and representations as to law, in my opinion, the better view is that an estoppel does not arise in the present proceedings because a common sense reading of the letter of 17 December 2004 reveals that what was being represented was a legal assertion and not a specific factual assertion, namely, that as a matter of law the condition had been fulfilled and that, significantly, as a matter of law the consent was now operational pursuant to the EPAA.

115 It may well be given the error made by the council on 17 December 2004 that, as the council suggested, the applicants are able to avail themselves of other remedies, but for the reasons given above the applicants' claim, as framed, must fail. 116 The formal orders of the Court are therefore: (1) the second further amended summons is dismissed;

(2) the applicants to pay the respondent's costs of the proceedings; and

(3) the exhibits are to be returned. **********

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