Chambers v Maclean Shire Council & 2 Ors

Chambers v Maclean Shire Council & 2 Ors - [2003] NSWCA 100 - NSWCA 2003 case summary — Zoe

[30]

SHELLER JA GILES JA IPP JA Friday 13 June 2003 ANITA CHAMBERS v MACLEAN SHIRE COUNCIL & 2 ORS Judgment 1 SHELLER JA: I have had the benefit of reading the reasons for judgment in draft prepared by Ipp JA. I agree with what his Honour says. I have also read the reasons for judgment in draft of Giles JA and his Honour's proposal that the matter be remitted to the Land and Environment Court for determination of the discretionary defence. With due respect, in my opinion, further consideration of the discretionary defence which has little prospect of success, will only put the parties to further unnecessary expense. If Mr and Mrs Smith wish to pursue the development of a prawn and research station on their farm property it should be considered by all parties in terms of Amendment No 1. Accordingly, I agree with the orders that Ipp JA has proposed. 2 GILES JA: I have had the advantage of reading the reasons of Ipp JA in draft. Subject to the following, I agree with them, but I propose a slightly different outcome in the appeal. 3 I agree that, with the 1998 amendments to the Environmental Planning and Assessment Act 1979, the Council had no power to consent to the development if it was a prohibited development. Jurisdictional error thus becomes available. I do not think that essential to the result, since even within Londish v Knox Grammar School (1997) 97 LGERA 1 I consider that the meaning of "area" on which the Council proceeded was not open to it. 4 Leave was given in the Land and Environment Court to raise the discretionary defence. It remains for determination, and the scope of the Court's discretion is wide, see Warringah Shire Council v Sedevic (1987) 10 NSWLR 335. There has not been the tender of evidence on that issue, or submissions beyond a degree of consideration in the appeal which, in any event, cannot be conclusive unless the evidentiary basis is complete. The discretionary defence is not promising, particularly if the Council had no power to consent to a prohibited development, but I do not think that the Council and the Smiths should be deprived of the opportunity to have the discretionary defence determined in the Land and Environment Court. Whether to continue in the Land and Environment Court in that regard is, of course, a matter for the Council and the Smiths. 5 That does not mean that this Court should hold back from making orders in the appeal. It means that there should be a remission to the Land and Environment Court so that the discretionary defence can be determined if it is maintained. 6 I agree with the orders proposed by Ipp JA, save that I propose the additional order that the matter be remitted to the Land and Environment Court for determination of the discretionary defence. 7 IPP JA:

[35]

Is leave to appeal required? 18 The matter came before this Court as an application for leave to appeal, but Mr Robertson SC, senior counsel for Ms Chambers, submitted that leave was not required, as the order Sheahan J had made was in effect a final order and Ms Chambers was entitled to appeal as of right. Mr Maston, counsel for the Council, resisted this contention. 19 The relief claimed by Ms Chambers in paragraph 5(b) of her points of claim was the same as that claimed by her in paragraph 7(b). Nevertheless, the basis for the relief claimed in paragraph 5(b) differed from the basis of the claim in paragraph 7(b). Accordingly, his Honour's order did not have the effect that Ms Chambers was finally precluded from claiming the relief in question. Although Ms Chambers failed to persuade Sheahan J that she was entitled to the relief claimed in paragraph 5(b), she still had the prospect of obtaining the very same relief on the different basis pleaded in paragraphs 6 and 7(b). 20 The same, however, cannot be said about the relief claimed in paragraph 5(a) of her points of claim. That relief was different from the relief claimed in paragraph 7(a). Therefore, the effect of the disposal of the issue raised by paragraph 5(a) was to preclude Ms Chambers, finally, from obtaining the relief she sought therein. None of the remaining issues raised by the pleadings detracted from the finality flowing from that disposition. To this extent, therefore, a final order was made: cf Becker v Marion City Corporation [1977] AC 271. 21 Mr Maston, in support of his proposition that Ms Chambers required leave to appeal, submitted that the learned judge had not made an order but only a "finding", that is, a finding that "the subject development is permissible, and that the Council was entitled to so determine". In other words he submitted that there was no final order because there was no order at all. This submission was based, largely, on the following observation made by Sheahan J in his judgment: "As leave was granted at the hearing for the Council to amend its points of defence to raise its defence of discretion, the Court proposes to make no orders in the proceedings at this stage, but merely to deal with the issue, as it is put in paragraph 4 of the amended points of claim …" 22 There is no substance in the submission so made. As I have mentioned, by a formal act of the registry of the Land and Environment Court, an order was made that "the subject development is permissible, and that the Council was entitled to so determine". Accordingly, Mr Maston's submission cannot be upheld. 23 Mr Maston also pointed to the fact that the registrar of this Court, in a previous hearing, determined that the order made by Sheahan J was interlocutory in nature and leave was required. For the reasons I have given, the order so made by the registrar was in error. It cannot bind this Court. 24 In the circumstances I conclude that Ms Chambers is entitled to appeal as of right against the order made by the Land and Environment Court, and leave is not required.

[40]

The Council's power to consent to a prohibited development 33 Division 1 of Pt 4 of the Environmental Planning and Assessment Act provides for a three-fold classification in regard to the carrying out of developments. The first category is that provided by s 76(1). Section 76(1) concerns specified developments that, by an "environmental planning instrument", may be carried out without the need for development consent. The second category of development is set out in s 76A(1) and concerns a specified development that, by an environmental planning instrument, may not be carried out except with development consent. The third category is set out in s 76B. It concerns developments that, by an environmental planning instrument, are prohibited, or a development that cannot be carried out on land with or without development consent. 34 The procedure for making applications for developments that may only be carried out with consent is set out in Div 2 of Pt 4 of the Act. It is sufficient to note that by s 78A(1) a person may apply to a consent authority for consent to carry out development. Division 2 does not apply to prohibited developments (s 77). 35 Section 4 of the Act defines a "consent authority" in relation to a development application as: "(a) The council having the function to determine the application, or (b) If a provision of this Act, the regulations or an environmental planning instrument specifies a Minister or public authority (other than a council) as having the function to determine the application - that Minister or public authority, as the case may be". 36 According to the Act, the only way in which a prohibited development may be the subject of a development application is pursuant to s 89 (which is not within Division 2). Section 89(1) provides: "The Minister may direct in writing, that specified prohibited development on specified land may be the subject of a development application for determination by the Minister if, having regard to matters that in the Minister's opinion are of significance for State or regional environmental planning, the Minister considers it is expedient in the public interest to do so".

[43]

Following Londish v Knox Grammar School , he concluded: "The Council was entitled to make the judgment that it did, and this Court should not review such a decision". 42 Mr Robertson submitted that Sheahan J had erred in concluding that the principles laid down in Londish v Knox Grammar School were applicable. He contended that, having regard to the particular legislation, there could only be one correct meaning of "area" and the question of the meaning of "area" could not be answered on the basis of whether the Council's construction was "reasonably open", but had to be answered on the basis of the correct meaning. Mr Maston, on the other hand, supported his Honour's reasoning. 43 The provisions in Div 1 of Pt 4 of the Act relating to the three-fold classification in regard to the carrying out of developments were made by an amendment to the Environmental Planning and Assessment Act which commenced on 1 July 1998 and post-dated Londish v Knox Grammar School. Section 101 of the Act, prior to that amendment, provided that the Minister might give a direction to a consent authority to refer to "to the Secretary for determination by the Minister" a development application for a prohibited development. It was then open to the Minister under s 100A(2) to grant consent to a prohibited development. Thus the Act, prior to the 1998 amendment, contemplated that a development application for a prohibited development could be lodged with a consent authority, not being the Minister, and the Minister could then direct that the development application be referred to him or her for determination. In that way, a development application for a prohibited development made to a council (being a consent authority) was not without legal utility. 44 The position changed, however, once the Act was amended in 1998. As I have stated above, the Act as amended contains no procedure whereby a development application for a prohibited development can be made to a consent authority, not being the Minister. I repeat my conclusion that a development application to a council for a prohibited development is not an application in terms of the Act in its present form. In my view, such an application has no legal force or effect. 45 Mr Robertson submitted that, by the 1998 amendment, the classification of a development, that is, whether it is permissible or prohibited, "has now become jurisdictional". He submitted that, as an application for a prohibited development was a nullity, a council had no power to consent to it. On that basis, the question of power was not to be determined by reference to what was reasonably open to the consent authority, but by what was objectively correct. 46 In my opinion, Mr Robertson's submission should be accepted. The scheme of the Environmental Planning and Assessment Act relating to the three-fold classification of developments does not suggest that the determination whether an application for development is for a prohibited development (or one of the other two forms of development applications falling within Div 1 of Pt 4 of the Act) rests upon a council's own classification of the relevant circumstances. Rather, it indicates that it is not for a council itself to determine, as a matter of its opinion, whether it has power to grant consent to a development application or whether only the Minister has such power: cf Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 149. 47 I would refer also to the statement of Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 65 that "if the factual reference is preliminary or ancillary to the exercise of a statutory power", the conclusion is likely to be a jurisdictional fact. The relevant factual reference in this case is whether the minimum performance criteria are met. Whether those criteria are met determines the character of the proposed development, namely, whether it is prohibited or not. That in turn determines whether the Council has the power to consent thereto. Thus, the factual reference is preliminary to the exercise of statutory power by the Council. 48 Therefore, the reasoning in Londish does not apply: Timbarra Protection Coalition Inc v Ross Mining NL at 63. In my opinion, Sheahan J erred in applying the approach adopted therein. The question whether the minimum performance criteria were met involves a jurisdictional fact and, according to the relevant legislation, must be answered objectively - not by reference to the subjective opinion of the Council.

[44]

Is the decision of the Council reviewable? 49 The proceedings brought before Sheahan J were by way of judicial review. Mr Maston submitted that the extent to which the Council's decision was reviewable by his Honour under the Land and Environment Court Act 1979 depended upon whether the questions raised by Ms Chambers involved questions of law or questions of fact (s 20(1)(c) and 20(2)(b) of that Act). He submitted that the questions whether the minimum performance criteria were met and whether the Smiths' development was a prohibited development were questions of fact. 50 This argument does not appear to have been raised before Sheahan J, but it can be disposed of swiftly. 51 The question before Sheahan J concerned the meaning of "area" as this word is used in cl 4 of Schedule 1 to SEPP 62. This governed the question whether the minimum performance criteria were met. 52 In Hope v Bathurst City Council (1980) 144 CLR 1, Mason J (at 10) stated if an error had been made in arriving at the common understanding of a word, and that error "was associated with an omission to relate the word to the expression with which it was associated," the error was one of construction and accordingly of law. 53 In Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389, the High Court said (at 397): "[T]he determination of whether [an] 'Act uses an expression … in any other sense than that which [it has] in ordinary speech' is always a question of law: ( NSW Associated Blue-Metal Quarries (1956) 94 CLR 509 at 511 to 512)". 54 Ms Chambers's argument is that the Council erred in that, in construing the word "area", it omitted to relate the word to its context in cl 4 of Schedule 1. She argues that term "area" does not have the meaning it bears in ordinary speech, but is to be construed in the light of cl 4 of Schedule 1 and SEPP 62 as a whole. In my view these arguments raise a question of construction and a question of law. 55 I would add that Mr Robertson submitted that, as the issue in question involved the determination of a jurisdictional fact, the Land and Environment Court had jurisdiction to review the decision of the Council. In the light of the conclusion to which I have come, there is no need to deal with that argument.

[45]

The parties' contentions concerning the word "area" and the findings of the trial judge 56 For the sake of convenience I repeat that the minimum performance criteria in cl 4 of Schedule 1 to SEPP 62 included: " Elevation Australian Height Datum (AHD) (1) Estuarine pond-based aquaculture - within an area that is above 1 metre AHD and below 10 metres AHD". 57 The critical question before Sheahan J was: what was the meaning conveyed by the word "area" in cl 4(1) of Schedule 1? That question was critical because neither the Smiths nor the Council disputed that about 40% of the site of the Smith farm was below 1 metre AHD. Indeed both the Council and the Smiths knew that this was so prior to the Council giving its consent to the development. 58 Before Sheahan J (and in the appeal) Ms Chambers submitted that the term "area" in cl 4 of Schedule 1 meant the area of the site location of the proposed development itself. On that basis, Ms Chambers said, the Smith farm did not comply with the minimum performance criteria. 59 Before Sheahan J (and in the appeal) the Council advanced a construction of "area" that it submitted overcame the fact that a substantial part of the Smith farm was below 1 metre AHD. 60 The Smiths did not participate in the hearing before Sheahan J (although they were joined as parties), but Mr Smith represented his wife and himself in the appeal. He argued for a different construction of the word from that advanced by the Council, and submitted that his construction, in a different way, also overcame the problem that a substantial portion of the Smith farm was below 1 metre AHD. 61 Sheahan J set out the contentions of the Council and the claimant as follows: "[The Council contended that] SEPP's AHD requirements refer to 'area' in a broad sense, whereas [Ms Chambers] says that compliance with those requirements must be viewed in the context of 'area' construed in the narrower sense viz 'area of the site'". 62 The Council contended that the word "area" had to be given its ordinary meaning of "district" or "region" and that it was sufficient for compliance with cl 4 of Schedule 1 that the "district" or "region," generally, was above 1 metre AHD and below 10 metres AHD. 63 Sheahan J upheld the Council's argument. He said: "The word 'area', as appearing in cl 4(1) of Schedule 1, would have no work to do if it simply meant 'site'. In the Environmental Planning and Assessment Act and the Local Government Act 1993 the word 'area' means local government area. The dictionary would suggest synonyms such as 'region' or 'tract of land'".

[49]

The Council's argument 68 Mr Maston supported the reasoning of his Honour. He first submitted, as Sheahan J had held, that the word "area" was used in its ordinary sense, that is "a more generalised" sense of a "region" or "tract of land". 69 Mr Maston submitted that the notion of a particular development being in an "area" of a certain character must be more extensive than the very site itself. He submitted that the reach of the word "area" should not be confined to the development site or even its immediate environs. The difficulty that this submission faces is that it avoids any positive definition of "area". 70 Mr Maston suggested that it would be for the particular council concerned to decide on the boundaries of the particular area. On this argument, it would not be possible to determine whether a development was permissible or prohibited until the council had selected the particular area applicable. This would give rise to practical difficulties. On Ms Chambers' argument (that "area" means the area of the site location of the proposed development itself), certainty could be achieved by conducting a survey on the site in question. Having regard to the purpose of the elevation criteria, certainty in regard to the definition of "area" is desirable. 71 The purpose underlying cl 4 is to protect the environment from pollution from acid sulphate soils. With that in mind there is good reason to construe cl 4(1) as being intended to apply to specific development sites and not to undefined, general areas. 72 In any event, the argument advanced on the Council's behalf falls foul of the same argument that results in the reasoning in Londish having no application to the circumstances of this case. As I have noted, the scheme of the Act is against the proposition that it is for a council to decide, in its discretion, whether an application for development meets the minimum performance criteria. That is the effect of Mr Maston's submission. In my view, it cannot be accepted. 73 Mr Maston pointed out that in the Environmental Planning and Assessment Act and the Local Government Act the word "area" means "local government area" and submitted that a like meaning should be attributed to the word in cl 4. I do not accept this submission. The Acts in question have no relationship with SEPP 62 and there is no warrant for giving the meaning of a word in those Acts to the same word in SEPP 62. 74 Mr Maston then submitted that Sheahan J had rightly held that, on Ms Chambers' construction, the word "area" was unnecessary. He pointed out that cl 4 could merely have provided that estuarine pond based aquaculture on land below 1 metre AHD would be prohibited. He said that "area" could not mean "an area whose limits are the site because it's speaking of the site of the development being in an area, that's the subject of the sentence". 75 In the context of SEPP 62, I am not persuaded by linguistic arguments of this kind. It would be going too far, in my view, to attribute a vague and general meaning to the word "area" merely on the ground that, had a more specific and practical meaning been intended, a different formulation would have been used.

[51]

Mr Smith's argument as to the meaning of "area" 80 Mr Smith commenced his argument by saying that the Smith farm site was at the highest elevation on Palmers Island. He said that if Ms Chambers' construction of the word "area" were to be upheld there would be no more prawn farms built on Palmers Island, and that would be contrary to the basic policy of SEPP 62 and the Aquaculture Strategy. 81 Mr Smith observed that, without a planning permit or any other permission from any authority, he could carry out earthworks on the site as long as he did not excavate deeper than 1 metre. He could use the earth so excavated to fill areas that were below 1 metre AHD. This would mean that at any particular point in time he could carry out earthworks to cause the whole farm site to be higher than 1 metre AHD. In other words, according to Mr Smith, the AHD of a particular piece of land could readily be manipulated by adding soil to increase its height. This, he submitted, would defeat the purpose of cl 4 of Schedule 1 as, in some areas, the excavation and movement of soil to build up elevation would expose acid sulphate soils and create an environmental hazard. For this reason, he submitted, the construction advanced by Ms Chambers could not be right. 82 The argument was not raised before Sheahan J and there is no evidence to support Mr Smith's submission that the excavation and movement of soil would expose acid sulphate soils and create an environmental hazard. I accept, nevertheless, that on a common sense basis it is probably correct. 83 Mr Smith submitted that the appropriate meaning of "area" was an area defined by the applicable acid sulphate soils risk map ("the ASS risk map") published by the Department of Land and Water Conservation. 84 The Aquaculture Strategy states: "The ASS Risk Maps provide details on the likely risks that acid sulphate soils are present given the broad range of soil characteristics. In addition these maps provide information on elevation and soil/landscape characteristics. The risk approach in the ASS Maps provides a useful tool for identifying areas where aquaculture ponds could be high risk, where the risks are more easily managed and areas where there is nil risk." 85 The ASS risk map applicable is a map of a large area described as Yamba. Various demarcated areas are shown within the Yamba area. These areas, broadly speaking, indicate areas where there is a high probability of acid sulphate soils, a low probability of such soils, where there is no known occurrence of such soils and where there is "disturbed terrain". Within these areas, smaller areas are demarcated which are sub-categories of the areas I have described. The Smith farm falls within one of the sub-category areas. 86 The sub-categories are demarcated by reference to various elements, including landform process class, landform element and elevation. The Smith farm is within the landform process class, "alluvial", within the landform element, "levee toe," and, relevantly, within an elevation area of 2 to 4 metres. The particular demarcated area within which it falls is described as "At2". "A" denotes alluvial, "t" denotes levee toe and "2" denotes 2 to 4 metres. 87 The elevation of 2 to 4 metres on the ASS risk map is not intended to be accurate. A note on the map records: "This map is to be used as a general guide for regional and local scale land use planning and land management only and not for the assessment of specific sites which can only be assessed by site specific soil investigation."

[52]

The map signifies that it is "only reliable at the published scale of 1:25000". An annotation records that the elevations on the map are "approximate AHD". 88 The evidence before Sheahan J was to the effect that ASS risk maps are intended to be preliminary guides for initial land use planning purposes only. They cannot be relied upon for accurate elevations on specific sites. 89 Mr Smith acknowledged that the ASS risk map applicable was not site specific and there were areas within the demarcated At2 area, in which the Smith farm fell, that in fact were below 2 to 4 metres. 90 He submitted, however, that the ASS risk map contains a practical and certain means for determining whether or not land meets the requirements of cl 4 of Schedule 1. By reference to the ASS risk map, one can tell immediately whether or not identified land meets those criteria. The map would be decisive. This answered the criticism of uncertainty inherent in the argument advanced by the Council. 91 Moreover, on this argument the soil could not be manipulated because it would not matter if levels were altered by soil from elsewhere. On this argument, there was no intention that the elevation minimum performance criteria would be site specific. One would not look at the site, there would be no need to conduct surveys, it would not matter if at a particular time levels were altered. One would always look only at the ASS risk map which, Mr Smith submitted, had been created specifically for the purpose of denoting areas of degrees of likelihood of encountering acid sulphate soils. 92 On Mr Smith's argument, the Smith farm complies with the minimum performance criteria merely because it falls within an area on the ASS risk map that is designated as being between 2 and 4 metres AHD. 93 At the time of the Council's grant of consent, SEPP 62 made reference to ASS risk maps. A note to cl 4 of Schedule 1 read: "AHD for areas may be sourced in the Acid Sulphate Soils Risk Maps published by the Department of Land and Water Conservation".

[54]

The words of this portion of the Aquaculture Strategy are identical with cl 4 of Schedule 1 to SEPP 62. 95 The Aquaculture Strategy does not form part of SEPP 62. Mr Maston, who supported Mr Smith's argument, submitted that regard could nevertheless be had to it as background material relevant to construing SEPP 62. In my view, however, the express stipulation in cl 4 of SEPP 62 that the notes do not form part of SEPP precludes any reference being made to the note to cl 4 of Schedule 1 for the purposes of construing the clause. If that were not the case, the effect of cl 4 of SEPP 62 would be negated. 96 Mr Smith sought to support his argument by reference to a Project Profile Analysis map ("the PPA map"), published pursuant to cl 12 of SEPP 62. The PPA map showed defined areas that were suitable for aquaculture. Mr Smith said that the Smith farm fell within an area coloured green on the map, and this area was indicated as being suitable for aquaculture. 97 Mr Robertson submitted that there was no evidence that the PPA map was the same map as the relevant ASS risk map and submitted that there was no evidence that the Smith farm fell within the area coloured green on the PPA map. He also submitted that the Aquaculture Strategy makes it plain that PPA maps were prepared as part of project profile analyses that had been carried out for the purposes of sustainable aquaculture according to SEPP 62. Accordingly, as the PPA maps were prepared for a purpose different to ASS risk maps, it would be dangerous, in the absence of appropriate evidence, to have regard to them. 98 The significance of the PPA maps was not explored before Sheahan J and there is substance in Mr Robertson's submissions. It is, however, not necessary to resolve these issues. 99 Mr Smith's argument has rational force but I do not think it can be accepted. 100 Mr Smith's argument that, if the construction advanced by Ms Chambers were to be accepted no aquaculture could be permitted on Palmers lsland (as his farm was on the highest point of the Island), is answered by Mr Robertson's submission that there were areas within Palmers Island that fell within the requisite minimum performance criteria and, indeed, large portions of the Smith's farm are within those criteria. Thus, aquaculture could be permitted on Palmers Island within those areas that fall within the minimum performance criteria and, had the Smiths' development application related only to those areas on their site that fell within the minimum performance criteria, there would be no basis for Ms Chambers' present objection. The fact is that the Smiths' development application embraced not only those portions of their farm that fall within the minimum performance criteria but also the remainder of their farm that do not. 101 In essence, however, Mr Smith's argument that "area" means the areas designated on the ASS risk maps applicable cannot be upheld as, once the note to cl 4 of Schedule 1 is not taken into account in construing the clause, there is no foundation for such a construction in the words of the clause itself. 102 The effect of cl 4 of SEPP 62 is that the note in cl 4 of Schedule 1 is merely a possible guide to the AHD. The inference from cl 4 of Schedule 1 is that site specific AHD are required. 103 This inference is reinforced by the fact that, while cl 4 of Schedule 1 provides for an area that is above 1 metre AHD and below 10 metres AHD, the ASS risk map concerned does not demarcate areas that are above 4 metres but below 10 metres AHD. 104 There is nothing in SEPP 62 that warrants "area" in cl 4 of Schedule 1 being determined by reference to a PPA map. 105 Thus, in my opinion, the words of cl 4 of Schedule 1 read with SEPP 62 as a whole do not permit of the construction propounded by Mr Smith.

[64]

He submitted that, by cl 18, Amendment No 1 applied to the Smiths' development application. 114 Mr Maston contended further that, as the Council's consent to the Smiths' development application is susceptible to being set aside by this Court (and was, earlier, susceptible to being set aside by the Land and Environment Court), the development application should be regarded as not having been finally determined. In the alternative, he submitted that, as a matter of discretion, the relief sought by Ms Chambers should be refused as, even if she were to be successful, the only outcome would be a procedural requirement for the Smiths to lodge a fresh development application that would fall within the amended SEPP 62, and that fresh application would inevitably succeed. 115 I am unable to accept these submissions. 116 Firstly, it is to be noted under the Act, that there is no appeal from the decision of the Council. The matter came before the Land and Environment Court by way of judicial review and to this Court by way of appeal from those review proceedings. In these circumstances, no fresh decision in regard to the development application is capable of being made either by the Land and Environment Court or this Court. Judicial review does not involve the making of a new decision. In my opinion, the Council's decision finally determined the development application. Clause 18 has no application. 117 In any event, once it is accepted that the Smiths' application for development consent did not meet the minimum performance criteria, the development concerned was a prohibited development and the Council had no power to consent to it. The consent given by the Council was accordingly invalid. In Hawkesbury City Council v Sammut (2002) 119 LGERA 171 at 181, Mason P (with whom Powell JA and Young CJ in Eq agreed) said: "A consent is an administrative act that generates significant rights. The necessary power must exist at the time the consent is given. There is a world of difference between allowing that power to turn in futuro upon prior events or matters (something that is commonplace) and altering the legal effect of a failed attempt to use the power by breathing retrospective life into a void consent and thereby altering legal rights stemming from the date of its purported exercise".

[66]

Other discretionary considerations 123 Finally, Mr Maston raised other discretionary considerations. He referred to the Council's points of defence to Ms Chambers' amended points of claim in which the Council pleaded that the Court ought not, in the exercise of its discretion, grant the relief sought by Ms Chambers or should, in the alternative, defer making any orders. 124 Particulars were given to this defence. The first particular, in effect, seeks to rely on Amendment No 1 and asserts that the effect of that amendment would be that the development consent was validly granted. The second particular is that the effect of Amendment No 1 would be that the development consent "would have been validly granted if granted after the amendment". The third particular is that "the development consent was consistent with the object and purpose of SEPP 62". The fourth particular is that "no environmental harm will occur if the development is carried out in accordance with the conditions of consent". 125 As regards the first particular, I have already concluded that Amendment No 1 does not have the effect that the development consent was validly granted. 126 As regards the second particular, I have concluded that there is significant uncertainty as to whether the Council will grant development consent if a fresh application by the Smiths is now made. 127 As regards the third particular, I am quite unable to conclude that the development consent was consistent with the object and purpose of SEPP 62. In my opinion, on the construction of cl 4 that I prefer, the development consent was not so consistent. 128 Similarly, as regards the fourth particular, I am not able to conclude that no environmental harm will occur if the development is carried out in accordance with the conditions of consent. 129 Mr Maston submitted that it would be open to the Land and Environment Court, having regard to the principles expressed in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, to refuse, on discretionary grounds, to make orders as claimed by Ms Chambers. In my opinion, on the grounds pleaded in the Council's defence, it has no prospect of success on this issue. 130 Accordingly, I would not uphold the Council's reliance on discretionary considerations.

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Parties

Cases Cited (11)

Cited By (25)