Castle Constructions Pty Ltd v North Sydney Council

Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; Carlton Football Club Ltd v Australian Football League (1997) 71 ALJR 1546; Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459; CASES CITED: City of Sydney Council v Satara [2007] NSWCA 148; Geelong Football Club Ltd v Clifford [2002] VSCA 212; Heaven's Door Pty Ltd v Hillpalm Pty Ltd (2003) 126 LGERA 319; Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited [No 1] (1986) 161 CLR 681; Legal & General Life of Australia Ltd v North Sydney Municipal Council [1990] 10 Leg Rep SL 1; Minister for Local Government & Anor v South Sydney City Council (No 3) [2002] NSWCA 327; Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [2001] NSWLEC 142

APPLICANT: Mr T F Robertson SC with Mr J Lazarus SOLICITORS: McLachlan Thorpe Partners LEGAL REPRESENTATIVES: RESPONDENT: Ms H Irish SOLICITORS: Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11010 of 2005 Castle Constructions Pty Ltd v North Sydney Council

JUDGMENT 1 Her Honour: This is the Council's Notice of Motion to adjourn the remitter of these Class 1 proceedings to a Commissioner for a rehearing to a mention on 21 December 2007 to allow for final determination by the High Court of the Council's Application for Special Leave (filed with the High Court on 23 August 2007) and, if leave is granted, the substantive appeal. What is essentially sought is a stay of proceedings pending the outcome of a decision on the special leave application to the High Court.

2 The history of the proceedings to date is set out in the affidavit of Ms Townsend dated 27 August 2007 relied on by the Council. Briefly, these Class 1 proceedings were commenced by the Applicant on 1 September 2005 and amended on 23 November 2005. Following a hearing on 15 - 16 December 2005 the decision of the Senior Commissioner on 12 January 2006 to refuse development consent was appealed by the Applicant pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act). 3 Following a hearing on 20 - 21 June 2006 and Talbot J's decision in Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468 on 3 August 2006 to uphold part of the Applicant's s 56A appeal, leave to appeal to the Court of Appeal was sought by the Applicant pursuant to s 57(4) of the Court Act. 4 The Court of Appeal finally determined the Applicant's application on 27 July 2007 when the majority decision of the Court in Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 (Tobias JA and Bell J concurring) had the effect that: (a) The Land and Environment Court on remitter is to treat cl 30 of the North Sydney Local Environmental Plan 2001 (the LEP) as, in substance, inconsistent with cl 28D of the LEP with the consequence (as mandated by cl 28A) that cl 28D of the LEP must prevail in the Court's determination of the Applicant's development application; and (b) Senior Commissioner Roseth is not to hear the remitter. The latter means that the remitter hearing must commence afresh.

5 The Respondent's appeal and application for special leave to appeal to the High Court was filed on 23 August 2007. The ground of appeal is stated to be The Court of Appeal erred in law in finding that clause 30 of the North Sydney Local Environmental Plan, 2001 (" NSLEP ") is inconsistent with clause 28D of the NSLEP and by virtue of clause 28 A of the NSLEP must be ignored. 6 The grounds of the special leave application are yet to be filed. 7 The affidavit of Mr Townsend also refers to Class 4 proceedings in which Biscoe J has handed down his decision in Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459 declaring invalid certain provisions in the North Sydney Development Control Plan 2002 (the DCP). No decision has yet been made as to whether an appeal is to be instituted in relation to that decision. While the findings of the Court of Appeal in this Class 1 matter impact on the decision of Biscoe J in the Class 4 judgment, in the absence of an appeal or an application to stay the effect of Biscoe J's orders I do not consider I can have regard to those proceedings in this application.

8 In terms of the sites in the North Sydney municipality affected by the appeal the relevant provisions affect either 12 sites according to the affidavit of the Council's planner Mr Mossemenear dated 5 September 2007 or three sites according to the affidavit of Ms Read dated 3 September 2007 being the Applicant's land and two other sites. Council's submissions 9 In terms of the matters identified in s 35 of the Judiciary Act, the matter which the Council states is likely to result in special leave being granted is the argument about statutory interpretation of environmental planning instruments put in the Court of Appeal (see [38], [39] and [51] of the judgment). This argument is said to have impacts beyond the parties in this case. It cannot be said that the case is hopeless, see Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [2001] NSWLEC 142 per Pearlman J at [20] - [22].

10 If leave is granted and the substantive appeal is successful it will make a practical difference to the rights and interests of the Council under s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (the EPA Act), and this Court will have to take into consideration cl 30 of the LEP on the remitter of the Class 1 appeal. The Land and Environment Court is the appropriate court to make the application to, see Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited [No 1] (1986) 161 CLR 681 at 684. Making such an order is in accordance with the Land and Environment Court Rules 1996, Pt 1 r 5A.

11 The timetable applying to the Respondent's Application for Special Leave to Appeal requires summaries of argument (including any reply) to be concluded by 18 Oct 2007 and the Application Book to be filed and served by 8 November 2007. The Council is prepared to undertake to prosecute the application with reasonable expedition, see Geelong Football Club Ltd v Clifford [2002] VSCA 212 per Ormiston JA at [6]. 12 There is no evidence of loss being caused to the Applicant if a stay is granted. 13 The Council has commenced the process of amending the LEP (Amendment no 28), which amendment seeks to incorporate into the LEP the height controls which were in the DCP and were the subject of the proceedings before Biscoe J (and which he declared were invalid). A s 65 certificate under the EPA Act has been issued by the Minister allowing the public exhibition of the draft LEP. Applicant's submissions 14 The Applicant opposes the orders sought in the Notice of Motion. The Council bears the onus of proof in the motion and this has not been discharged.

15 A party has the right to have proceedings dealt with expeditiously, see Geelong Football Club Ltd v Clifford at [6], cited in City of Sydney Council v Satara [2007] NSWCA 148 at [19]-[20]. It is the duty of the Court to apply the law as it currently is and not speculate as to what the law may be as a result of a change in the law whether judicial or legislative, see Geelong Football Club at [7], Satara at 19-30. The relevant principles of seeking a stay of a Court of Appeal decision pending the determination of a special leave application were identified in Jennings v Burgundy Royale at 685. Special or exceptional circumstances must also be demonstrated, see Carlton Football Club Ltd v Australian Football League (1997) 71 ALJR 1546 at 1546 per Dawson J, referred to in Heaven's Door Pty Ltd v Hillpalm Pty Ltd (2003) 126 LGERA 319.

16 There is no information before the Court which demonstrates that the Council has pursued the application for special leave with any expedition. It was filed on the second last day of the appeal period and apart from following the usual High Court timetable no additional effort to progress matters has been made.

17 Nor does the Court have any indication apart from what has been stated in the oral submissions of the Council's counsel as to why there is a likely prospect of success which enables the Court to weigh up that issue, unlike in Minister for Local Government & Anor v South Sydney City Council (No 3) [2002] NSWCA 327 where the court had before it the arguments which were to be relied on in the special leave application. 18 There is a substantial likelihood that the application for special leave will be refused because there is no question of law of public importance involved. The Court of Appeal decision affects only three sites and one of those is the Applicant's land. The issue of the operation of cl 30 on sites within the North Sydney Centre is highly unlikely to arise again because the Council has commenced the process of amending the LEP to impose strict height controls on each of the sites in the Centre, including the Applicant's land. If the proposed amendments to the LEP are made prior to the determination of the special leave application, it will have no relevance even to the Applicant's land because the height of buildings will be resolved by reference to the proposed building heights map (subject to a SEPP 1 application). It is also proposed that cl 28A (the inconsistency clause construed by the Court of Appeal) be deleted. The High Court grants special leave in less than 1 in 10 cases on average, see Satara at [11].

19 An adjournment will deprive the Applicant of the right to have the Court determine its development application. Once the proposed amendments to the LEP are made, it would be highly unlikely that the Applicant's development application would be approved by the Court. A stay will effectively destroy the subject-matter of the litigation and deprive the Applicant of the fruits of its success in the Court of Appeal (and before Biscoe J). Accordingly, the grant of an adjournment would therefore work a substantial injustice in this case. Finding 20 Section 35A of the Judiciary Act 1903 (Cth) identifies those matters which are considered by the High Court in deciding whether to grant special leave. In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to: (a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) that is of public importance, whether because of its general application or otherwise; or (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

21 In Jennings v Burgundy Royale, Brennan J stated at 685: In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

22 This case was cited with approval in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306, Kirby J at 308 C - F as follows: 3 At least in some jurisdictions of Australia, the frequency and normality of appeals have been reflected in the adoption of principles which relax somewhat the stringency of the necessity, previously required, to show "special" or "exceptional" circumstances to secure provision of a stay (2). As I was a party to one such decision (with Hope JA and McHugh JA, as the latter then was) it will be unsurprising that I am generally sympathetic to the view that (subject to any particular provisions of any applicable Rules of Court) special or exceptional circumstances are not now generally required to afford a stay of the execution of orders the subject of an appeal, which lies as of right. The reasons for this shift in emphasis are explained by the New South Wales Court of Appeal in Alexander v Cambridge Credit Corp Ltd . Those principles have not, to this time, been adopted by this Court in respect of its own stay orders;

4 In the High Court, the old rule of stringency continues largely to be maintained, with particular force where no grant of special leave to appeal has yet been secured. There are obvious reasons for a measure of greater stringency at this point. Ordinarily, the case will have proceeded through at least two tiers of the judicial process. The would-be appellant's arguments will have been rejected by the court whose orders are the subject of the special leave application. Only a relatively small proportion of the applications for special leave succeed. To succeed, something more than legal or factual error must usually be shown. These are reasons for maintaining a higher standard in this Court for the provision of a stay than would now usually be imposed by other Australian appellate courts in respect of invocations of their jurisdiction; 23 The principles in Jennings v Burgundy Royale were considered in Minister for Local Government & Anor v South Sydney City Council (No 3), per Spigelman CJ, where he considered, inter alia, the prospects of success of obtaining a grant of special leave. A relevant consideration is whether there was a probability that a successful appeal would not make any practical difference to the rights and interests of the appellant unless a stay or injunction was granted, in other words necessary for "preserving the subject matter of the litigation" per Jennings v Burgundy Royale at 685.

24 David O'Brien, Special Leave to Appeal (2nd Edition, 2007) at 47 states that as an application for special leave is not an appeal, the law pertaining to appeals is not, without more, applicable. There is no right to special leave. In civil matters the exercise of jurisdiction is directed to determining whether the case is sufficiently special to attract a substantive hearing. To obtain special leave it is necessary in addition for there to be "some special feature of the case which warrants the attention of the court". Some relevant indicators are contained in s 35A of the Judiciary Act. On statutory construction cases, O'Brien states at 85 that the interpretation of a statute will not attract special leave unless it raises a "general principle of statutory interpretation" see cases in footnotes at 214. He states that the operation of this exception is increasingly confined to legislation with inter-state significance. On town planning appeals, O'Brien quoted Mason CJ in Legal & General Life of Australia Ltd v North Sydney Municipal Council [1990] 10 Leg Rep SL 1 where his Honour stated: The court generally views town planning cases with some degree of aloofness, to adopt a neutral term, and it is an area which, after all, the courts with specialist knowledge have advantages that are denied to mere mortal judges, particularly when it comes to matters of interpretation. After all, interpretation of planning instruments take place on the part of specialist tribunals who have specialist and expert knowledge that they can bring to bear. These mysteries are denied to us. And that is one of the reasons, the substantial reason, why the court views cases of this kind with some degree of remoteness.

25 These authorities confirm that the consideration of whether a stay is warranted pending a special leave application to the High Court requires that there be special considerations beyond those applying in relation to the usual stay application when an appeal to a higher court is pending. In assessing the matters identified in Jennings and other cases cited these include consideration of whether the subject matter of the litigation is preserved. That consideration supports the Applicant's case as it argues that it wishes to have the benefit of the Court of Appeal's majority (and binding) interpretation of inconsistent provisions in the LEP maintained. The Council's argument that it wishes to maintain the "status quo" means the law as found by the judge at first instance and the minority judgment in the Court of Appeal, rather than the binding majority judgment in the Court of Appeal. The stay is likely to cause loss to the Applicant in that this opportunity is potentially lost to it in the remitter hearing if delayed. 26 Consideration of the prospects for success are also relevant. Section 35A of the Judiciary Act sets out matters the High Court may take into account on a special leave application. The Council relied on s 35A(a)(i) and (b). In this case I consider the prospects of success are not substantial for all the reasons identified by the Applicant as set out in par 18 and the considerations identified in O'Brien identified in par 24 in relation to statutory construction cases and town planning matters in particular. The Applicant's submission that the special leave application is likely to be granted because the matter concerns broader principles of statutory interpretation in the case of town planning instruments appears weak. 27 The Council could also have taken greater steps itself to expedite the stay application. It lodged the appeal close to the end of the 28 day appeal period and has not sought an expedited timetable from the High Court. Its submission now that it would undertake to pursue the matter expeditiously would hold greater weight if there was evidence that it had already done so. Had it done so it is likely the special leave application could have been heard earlier than November or December, the present estimate, potentially in time for the remitter hearing in any event. There needs to be a timetable for the future conduct of the matter for hearing on the remitter ordered. It is likely there can be a two day hearing of the remitter in October or November. Overall the balance of convenience suggests that the stay sought by the Council should not be granted.

28 There do not appear to be "special" or "exceptional" circumstances justifying the stay of the remitter in these proceedings. I consider the Council's notice of motion should be dismissed and will so order.

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.