Centro Properties Limited v Warringah Council & Anor

The Second Respondent further submitted that on the wording of s 25A(2) Div 3 of Pt 3 extends to, but is not confined to, invalidity arising from any steps preliminary to the granting of a development consent.

In the Applicant's view the meaning of "invalidity arising from any steps preliminary to the granting of a development consent" cannot include the circumstances of this case. The failure to consider a mandatory relevant matter under s 79C of the EP&A Act does not give rise to invalidity arising from "any steps preliminary to the granting of a development consent". That obligation can only be satisfied as part of the determination of the development application, according to the Applicant.

Both parties relied on Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84. In Glowpace Pearlman J had to consider whether she would make an order under s 25B, firstly because of the Council's breach of procedural fairness in that it failed to adhere to its notification policy in relation to a development application. She held that this invalidity did fall within s 25A(2) because it was clearly an invalidity which arises from a step preliminary to the granting of the development consent. However, her Honour did not make an order under s 25B because, in relation to another aspect of the case, the Council's actions breached the Mison principle (see Mison v Randwick Municipal Council (1991) 23 NSWLR 735) which meant that there was lack of finality and certainty in the development application. Her Honour held that breach was not a step preliminary to the granting of development consent within the terms of s 25A(2) and consequently the Division did not apply.

The Applicant argued Glowpace supported its case. Firstly, because her Honour noted that "Importantly, the application of Div 3 is confined by s 25A(2) …". This means that the words "extends to" in s 25A(2) are not intended to be an extension but rather a confinement of the application of the division. Secondly, the failure to consider a relevant matter under s 79C was a fundamental error which properly invalidated the consent in the same way there was a breach of the Mison principle in Glowpace. Accordingly, Div 3 of Pt 3 of the Court Act is inapplicable in this case.

The Respondents argued that in fact Glowpace supported their approach. The failure to consider economic impacts, characterised as a failure to provide information about economic impacts for consideration by the Council, was similar to the failure to notify giving rise to a breach of procedural fairness which her Honour also considered in Glowpace. The Council submitted the failure of the Second Respondent to supply the relevant information is a step preliminary to the granting of consent. The submission of material on economic impact by the Second Respondent to the Council together with any public submissions is consistent with Glowpace and the provisions of the EP&A Act. Furthermore, the Mison principle is not applicable in this case.

Finding on Issue 1 11. The arguments raised in relation to this issue concern the fundamental question of whether the consideration of a Council under s 79C of the EP&A Act is preliminary to the decision to grant development consent under s 80(1) or is part and parcel of the process of the determination whether or not to grant development consent. Interestingly there does not appear to be any directly applicable case law on this question. The Applicant referred to the decision of Mahoney JA in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 where his Honour, on an appeal from a s 97 merit appeal, made certain statements about the obligation of consent authorities to weigh up the relevant considerations under s 79C and then determine what should be done in light of those considerations (see at 279). The Applicant argued that his Honour correctly set out a description of the process of the weighing up of all relevant considerations against each other in the making of a decision whether to grant development consent by a consent authority in a merits assessment. While the comments in BP are directed to a different question to the one I must decide in interpreting s 25A(2), the process he describes is relevant to consider in the context of the wording of s 79C.

The wording of s 79C(1) states at the outset that "In determining a development application, a consent authority is to take into consideration …". I agree with the Applicant that this confirms that the consideration under s 79C is part and parcel of the determination of the development application under s 80(1). Section 80(1) requires a consent authority to determine a development application by granting consent or refusing consent to the application. I agree with the Applicant that the appropriate and logical characterisation of the deliberation under s 79C is that it is part of the decision whether or not to grant development consent under s 80 of the EP&A Act. It is not a step preliminary to it, meaning "introductory", "preparatory", or "preceding and leading up to the main matter or business": The Macquarie Dictionary, Revised Third Edition. This finding reflects the wording of s 79C and the process of granting development consent under s 80(1). That process is aptly described in BP Australia Ltd.

How should the failure to consider economic impact be characterised? It is not simply a failure to supply information to the Council and the public on a relevant matter under s 79C. Rather it is a failure by the Council to consider that material as part of the weighing up process under s 79C. It is not a situation exactly on "all fours" with either of the circumstances in Glowpace and drawing directly on that case by way of analogy is not particularly helpful.

I do not consider that Div 3 of Pt 3 of the Court Act applies in these circumstances as, in terms of the scope of s 25A(2), I see no reason to disagree with Pearlman J in Glowpace where she held that s 25A(2) confines the application of Pt 3 Div 3 so that that division does not apply to matters which are not steps preliminary to the grant of a development consent.

The Respondents urged on me an argument that s 103 and s 104 of the EP&A Act confirms the broad scope of s 25A(2) of the Court Act. Under s 103 of the EP&A Act a council can regrant a development consent if it has been suspended by the Court under s 25B, if the terms imposed by the Court under s 25B have been substantially complied with. A Council can also revoke a development consent regardless of whether the terms of an order under s 25B have been complied with.

Section 104 of the EP&A Act provides that a development consent declared valid under s 25C of the Court Act is to be final. Section 25C provides the Court can make an order declaring a consent to be valid and revoking the suspension order if the terms specified under s 25B are substantially complied with. These sections do not particularly assist in determining the scope of s 25A(2).

Other cases before this Court which have involved similar factual circumstances are Noble v Cowra Shire Council [2001] NSWLEC 149, a failure by the Council to consider whether SEPP 30 was relevant, in a situation where SEPP 30 was potentially relevant, before granting development consent, and Donnelly v Capricornia Prospecting Pty Ltd [2001] NSWLEC 225, where the council failed to consider all necessary matters under s 90 of the EP&A Act (the former equivalent of s 79C). The factual issues are similar to those before me. No s 25B orders were made in either case however because in Donnelly Bignold J considered there was no order which could be formulated to validate the consent and in Noble Pearlman J thought it inappropriate to make such an order in the circumstances. I do not consider that my judgment is in conflict with the decisions in Noble and Donnelly as neither case considered whether s 25A(2) applied at all in those situations and it appears from the judgments that no such issue was raised by the parties.

Given my finding on Issue 1 it is not necessary that I consider the other two issues raised. Having heard argument on it, and in case I am wrong on issue 1, I will consider Issue 2.

Issue 2 - do s 25B(1)(b) and s 25B(2) apply in these circumstances? 19. Section 25B provides: (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

20. The key issue to determine under s 25B(1)(b) is what is meant by "specifying terms compliance with which will validate the consent …"?

21. The Applicant argued that the application of s 25B of the Court Act in the terms proposed by the draft orders (annexure A to this judgment) is fundamentally inconsistent with the obligation of the consent authority under s 79C of the EP&A Act and therefore not an issue for which the Court can specify "terms compliance with which will validate the consent". If the terms sought by the Second Respondent are made the practical consequence would be that the development application could never be assessed in accordance with the law. The consideration under s 79C is mandatory in the determination of the development application and it requires that all matters relevant are to be taken into consideration. This reasoning means there can be no consideration of the economic impact of the development in the locality pursuant to s 79C(1)(b) of the EP&A Act as referred to in the draft orders, because such consideration can only take place in the context of the consideration of all other relevant considerations specified in s 79C. If there is not a weighing up of all relevant considerations the Council has not discharged any function under s 79C. The orders sought are therefore futile as they cannot be satisfied and cannot validate the consent.

22. The First and Second Respondents argued that the scope of s 25B(2) sets out the terms which may be included and submits, as is clear from the terms of this section, that these are not limited in any way. There is wide scope for orders to be made under s 25B(1)(b). Further, the meaning of "validate the consent" in this context is to enable orders to be made which deal with the invalid step so that this is overcome. The Applicant's argument fails to recognise the utility and purpose of the scheme.

23. This approach was supported, according to the Respondents by the fact that s 103 of the EP&A Act gives the Council power to revoke a consent whether or not terms imposed under s 25B have been complied with (s 103(2)) or "regrant" a consent having regard to the terms imposed pursuant to s 25B and to any matters arising in the course of complying with those terms (s 103(3)).

Alternative order proposed by the Council 24. At the hearing the Council sought to amend the draft orders sought with the insertion of a new paragraph 5(c) (with the current 5(c) becoming 5(d)) as follows: consider any matters arising from the consideration in (b) with respect to the First Respondent's consideration of other relevant matters under Section 79C of the Act in its determination of the development application.

25. The Second Respondent did not oppose that amendment but considered that it was unnecessary. The Applicant considered this amendment highlighted the difficulties faced by the First and Second Respondents in having these orders made. If the insertion of the new paragraph 5(c) was to overcome the difficulties raised by the Applicant in relation to s 79C of the EP&A Act then it was unsuccessful in doing so. Section 79C considerations would be narrowed if dealt with as intended by the amendment. Finding on Issue 2
26. I agree with the Applicant's submissions that it is not possible to "validate" the consent as proposed by the draft orders relied on by the First and Second Respondent. The amended condition 5 set out above in par 23 is an attempt to overcome the major difficulty the Court faces in drafting provisions which enable the validation of the consent given the obligations of the First Respondent under s 79C of the EP&A Act to weigh up all the matters it is required to in assessing a development application.

In order to rebut an argument that circumstances have changed since the Council granted development consent on 7 May 2002, an affidavit of the Council's Team Leader Development Assessment attested to the fact that there had been no relevant changes in the planning instruments applying to the Second Respondent's proposed development since it was originally determined by the Council on 7 May 2002. Because of this the Council argued the proposed orders would be able to "validate" the consent.

I do not consider however that s 25B(1)(b) is directed to "validation" of this type of invalidity of a development consent. Nor do I consider the draft orders as amended do satisfactorily allow for a process which will give rise to a lawful determination under s 79C. I do not consider the amended s 5(c) overcomes the inherent difficulty the First Respondent faces in having a mandatory matter under s 79C dealt with by singling out a matter for further public submission as the draft orders provide, then considering any new material on that issue together with the other matters relevant under s 79C in relation to which there is no material (relevantly updated if required) issued to the public for comment. I do not think this process "validates the consent" as referred to in s 25B(1)(b).

I note that s 25B(2)(c) provides for the making of orders with terms requiring acts, matters or things to be done which are different from acts, matters or things required to be done under the EP&A Act. I do not consider this provision can be used to argue that the consideration of matters under s 79C, such as is proposed under the draft orders, is appropriate given the fundamental nature of the consideration required under s 79C in the scheme of the EP&A Act.

If I had been minded to make the orders sought, it should be noted that after the Council's deliberations provided for in par 5 of the draft orders (as amended in 5(c)) the development consent is still suspended because of the way Pt 3 Div 3 of the Court Act has been drafted. Section 25C provides that the consent authority may apply to the Court if the terms specified under s 25B have been substantially complied with: (i) if the consent is not being regranted with alterations so that the Court may make an order declaring that the terms have been substantially complied with, declaring the consent is valid and revoking the order of suspension; or (ii) if the consent is being regranted with alterations so that the Court may declare that the terms have been complied with, declaring that the development consent has been validly regranted, declaring that the suspended development consent has been revoked, and revoking the order of suspension. 30. Curiously, there does not appear to be a basis on which the Court can require the parties to come back once an order under s 25B(1) has been made. The way the section has been drafted means that it is up to the parties to return to the Court. Presumably this is to enable the operation of s 103 of the EP&A Act to occur without the matter having to come back before the Court. Assuming the parties do come back to the Court, as I was assured by the parties would occur in this matter, the Court would then be in the position of having to decide whether the orders under s 25B(1)(b) had been complied with and whether to revoke the order for suspension. The Court would be in the position of having to determine if the Council's consideration under s 79C had been adequate. That issue is potentially complex, is not necessarily the same issue as that raised in the original proceedings before me and could well give rise to the need for a hearing on a different basis to that already argued before me. This confirms to me the inherent difficulty in the Court being able to determine that the consent can be validated by the orders sought by the Respondents.

I also note Pearlman J's comment at [31] in Noble that a declaration of invalidity of the development consent has no effect upon the development application itself. It remains on foot to be assessed and determined by the Council. This was relied on by the Applicant in submitting that a finding of invalidity would simply result in the Council either redetermining the existing development application with further material relevant to economic impact inserted and other material updated if necessary, or the Second Respondent could choose to lodge a second development application.

I consider that it is up to the Respondents to determine how they wish to proceed given my decision not to make the orders sought. Issue 3 - Do general discretionary matters apply so that an order under s 25B(1)(b) ought not be made? 33. It is not necessary that I answer this question.

34. I therefore consider that I should make an order that the development consent granted by the First Respondent is invalid and of no effect. I note that the parties requested that costs be dealt with after judgment in this matter. I will therefore reserve the question of costs.

Orders and Declarations 35. The Court makes the following declarations and orders. The Court declares that:

1. Development consent 2001/1615DA dated 7 May 2002 for construction of bulky goods retail outlet, shops, restaurants, conservation of bushland and associated parking granted by the First Respondent in relation to Lot 1 in Deposited Plan 880191 known as 4 - 6 Niangala Close, Belrose (the development consent) is invalid and of no effect.

The Court Orders that: 2. The Second Respondent, its servants and agents are restrained forthwith from acting upon the development consent. 3. The question of costs is reserved. 4. The exhibits may be returned.

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.