Charalambous v Ku-ring-gai Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 80, s 80A, s 96, s 98A, s 121B and s 121ZJ

Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62; Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41; CASES CITED: Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Newbury District Council v Secretary of State of the Environment [1981] AC 578; Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59; Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

APPLICANT: Dr J E Griffiths SC SOLICITORS: Maddocks LEGAL REPRESENTATIVES:

RESPONDENT: M G Craig QC SOLICITORS: DLA Phillips Fox

JUDGMENT:

• 12 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

CHARALAMBOUS v KU-RING-GAI COUNCIL [2007] NSWLEC 510

JUDGMENT 1 HIS HONOUR: On 14 September 2006, Ku-ring-gai Council granted development consent for the demolition of a dwelling and the construction of two new dwellings at No. 47 Westbrook Avenue, Wahroonga. The development consent was subject to numerous conditions, including a requirement for a cash bond or bank guarantee of $4,000 to ensure that landscape works are installed and maintained in accordance with the approved landscape plans and landscape conditions. The condition states that 50 per cent of the bond "will be refunded" once the landscape works have been satisfactorily installed and the balance will be refunded three years thereafter if the landscape works have been satisfactorily established and maintained. 2 On 11 December 2006, the council granted development consent for the demolition of a dwelling and the construction of two new dwellings at No. 49 Westbrook Avenue, Wahroonga. That development consent was also granted subject to a similar condition. 3 The applicant in each case made an application to modify the consent under s 96 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") to delete the condition relating to the landscaping bond. The council refused the modification applications. The applicant now appeals to the Court under sub-s 96(6) of the EP&A Act against the council's refusal to modify each consent 4 The applicant has raised the following question for separate determination by the Court: Whether the imposition of a condition of development consent by a local council requiring the payment of a monetary bond for the stated purpose of protecting trees and/or landscaping on private property: (a) falls outside the scope of bonds which may be lawfully imposed pursuant to the EP&A Act ; (b) fails to meet the tests established in Newbury District Council v Secretary of State for the Environment [1981] AC 578 with respect to the statutory power to impose conditions of development consent; (c) is ultra vires.

The relevant legislation 5 Section 80 of the EP&A Act states that a consent authority is to determine a development application by (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. 6 The key provision, for present purposes, is s 80A of the EP&A Act, which sets out the extent of the power to impose conditions on a development consent. A fundamental question which arises is whether s 80A is exhaustive and provides the exclusive and only source of power for a consent authority to impose conditions. Subsection 80A(1) is relevantly as follows: (1) Conditions - generally A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C(1) of relevance to the development the subject of the consent, or … (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C(1) applicable to the development the subject of the consent, or … (h) it is authorised to be imposed under sections 80(3) or (5), subsections (5) - (9) of this section or section 94, 94A or 94F. 7 Subsections 80(3) and (5) refer to deferred commencement conditions and partial consents. Sections 94, 94A and 94F refer to monetary contributions or levies for certain public amenities and public services. None of these provisions are presently relevant. Subsection 80A(5) refers to a condition requiring the modification or surrender of a consent. Subsections 80A(6) to (9) are as follows: (6) Conditions and other arrangements concerning security A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following: (a) making good any damage caused to any property of the consent authority (or any property of the corporation) as a consequence of the doing of anything to which the consent relates, (b) completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent, (c) remedying any defects in any such public work that arise within 6 months after the work is completed.

(7) The security is to be for such reasonable amount as is determined by the consent authority.

(8) The security may be provided, at the applicant's choice, by way of: (a) deposit with the consent authority, or (b) a guarantee satisfactory to the consent authority.

(9) The security is to be provided before carrying out any work in accordance with the development consent or at such other time as may be agreed to by the consent authority. 8 The applicant argues that these subsections are the exclusive source of power to require security. The council, however, relies upon the full force of sub-s 80A(1)(a), together with other provisions of the EP&A Act which concern the provision of security. One such provision is s 98A, which states: 98A Appeal concerning security (1) An applicant who is dissatisfied with: (a) a decision of a consent authority with respect to the provision (otherwise than by the imposition of a condition of development consent) of security of a kind referred to in section 80A (6), or (b) the failure or refusal of the consent authority to release a security held by it, may appeal to the Court.

(2) An appeal with respect to a decision referred to in subsection (1) (a) may be made within 12 months after the applicant received notice of the decision. (3) An appeal with respect to a failure or refusal referred to in subsection (1) (b) may be made: (a) except as provided by paragraph (b), within 6 months after the work to which the security relates has been completed, or (b) if the security is provided in respect of contingencies that may arise on or after completion of the work to which the security relates, not earlier than 6 months and not later than 12 months after the completion of the work." 9 The council submits that the words in sub-s 98A(1)(a) in parenthesis amount to a statutory acknowledgement by the legislature that conditions of consent may be imposed requiring the provision of security independently of sub-s 80A(6). I should say at once that I do not agree. The words in parenthesis refer to the provision of security otherwise than by the imposition of a condition of development consent. It does not follow, in my opinion, that such a requirement can be imposed as a condition of development consent. 10 Another provision of the EP&A Act upon which the council relies is s 121ZJ. That section appears in Pt 6 of the Act, which deals with implementation and enforcement. Section 121B in Pt 6 states that the Minister or the Director-General, a council, or a consent authority, may give an order to a person to do or refrain from doing a thing specified in the table to that section. Item 15 in the table states: "To comply with a development consent." Section 121ZJ states that if a person fails to comply with the terms of an order, the person who gave the order may give effect to the order. Subsections 121ZJ(6) and (7) are as follows: (6) If work required by the order is carried out by the person who gave the order in relation to development for which an amount of security was provided and the amount of the security is more than the costs of carrying out the work, the person, after being recompensed from the security, must pay the surplus to the person entitled to it on demand. (7) Any expenses incurred under this section by a person who gave an order (less the proceeds, if any, of any sale under this section or the amount of any security provided in respect of development to which the order relates) together with all associated costs may be recovered by the person in any court of competent jurisdiction as a debt due to the person by the person required to comply with the order. 11 The council says that the presence of sub-ss (6) and (7) assumes that a security has been provided. I again observe, however, that these subsections do not create a power to require a security: absent any provision creating a power to require a security those subsections may be taken to refer to securities authorised by sub-s 80A(6), either by way of condition of consent or by agreement.

The council's submissions 12 Mr M G Craig QC, appearing for the council, submits that taking all of these provisions in context and in their totality, demonstrates that the general power to impose conditions under sub-s 80A(1) includes a power to require a bond or the provision of security to secure the observance of conditions. He submits that the words "relate to" in sub-s 80A(1)(a) are to be broadly construed (reference was made to Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 140 LGERA 201 at [104]) and a condition will be valid if there is a connection between a matter referred to in s 79C and the subject of the condition. Mr Craig submits that sub-s 80A(6) should be confined to its own terms and is directed to the provision of security for work on public property and has nothing to say about the provision of security to secure the observance of other conditions. (Reliance was placed on Fairfield City Council v N&S Olivieri Pty Ltd [2003] NSWCA 41, unreported).

Findings 13 There is a number of answers to the council's submissions which, in my opinion, show that sub-s 80A(6) of the EP&A Act is the exclusive and only source of power for a consent authority to require the provision of security as a condition of development consent and is limited to the circumstances set out in that subsection. 14 Firstly, in Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62, Pearlman J, in allowing an appeal for the strata subdivision of a residential flat building, said in relation to a disputed condition, at [51]: Proposed condition 16 would have imposed a security bond on the applicant for the purpose of ensuring the maintenance of the landscaping. The applicant objected on the ground that such a bond did not fall within the scope of bonds permitted by s 80A(6) of the Environmental Planning and Assessment Act 1979 . These provisions of the Act empower the consent authority to require such a bond in limited circumstances and it is clear that the protection or maintenance of landscaping on private property is not amongst those permitted purposes. I decline therefore to impose this condition. 15 I acknowledge, however, that there is nothing in her Honour's judgment which suggests that the question was fully argued. There is no reference to any submissions on the question, and no reasons are given for her Honour's conclusion. 16 Secondly, the opening words of sub-s 80A(6) do not contain the well-known formula of words, "without limiting the generality of the foregoing…". As noted by Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679, such words - absent here - evince an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows. 17 Thirdly, there is a presumption of statutory construction that where a statute confers both a wide general power not subject to special limitations or qualification, and a special power that is subject to limitations or qualifications, the general power cannot be exercised to do that which is the subject of the special power: see Halsbury's Laws of Australia, vol 24, at [385-270], Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7. A parallel presumption is expressio facit cessare tacitum: where there is express mention of certain things, then anything else not mentioned is excluded. The presence of sub-s 80A(6) suggests that these presumptions apply. 18 Fourthly, a further parallel presumption of statutory construction is generalia specialibus non derogant: where there is a conflict between general and specific provisions, the specific provisions prevail. In the present case sub-s 80A(6) is clearly a special power governing conditions of development consent concerning security. 19 Fifthly, the heading to sub-s 80A(6) is expressed in terms which suggest exclusivity - "conditions and other arrangements concerning security." The word "security" is unqualified. Although a heading to a provision of an Act is not part of the Act (s 35(2) of the Interpretation Act 1987), it may be used as an aid to construction (s 35(5) Interpretation Act 1987). The heading may thus be used as an aid to construction: (a) to confirm that the meaning of the words in sub-s 80A(6) are the ordinary meaning; or (b) to determine the meaning of sub-s 80A(6), if the provision is ambiguous or obscure, as to whether its terms are exhaustive. In applying the latter aid to construction, the heading, as noted above, suggests exclusivity. 20 Sixthly, the council's reliance on the judgments of the Court of Appeal in Fairfield City Council v N&S Olivieri Pty Ltd is misplaced. In Olivieri, the council had imposed a condition of development consent requiring the developer to construct road works on adjacent land. Under s 94 of the EP&A Act, consent authorities are only able to impose conditions on consents requiring the dedication of land free of cost, or the payment of a monetary contribution, or both, for public amenities or public services - but only if they follow s 94. In Olivieri, the Court of Appeal held that the conditions for the carrying out of work, allowed by the then sub-s 91(3)(f) - now sub-s 80A(1)(f) - are not subject to the constraints of s 94. That is, s 94 only constrains the power of a consent authority to impose conditions requiring the dedication of land free of cost or a monetary contribution - it has no application to a condition requiring a developer to undertake work at its own expense. 21 The decision in Olivieri is unsurprising. However, as pointed out by Dr J E Griffiths SC, appearing for the applicant, there is a number of reasons why the decision is of no relevance to the present case. The argument in Olivieri was that s 94 applied not only to the dedication of land and the payment of monetary contributions, but extended to other commercially equivalent matters. But here, the argument is that sub-s 80A(6) is an exclusive source of power to impose a condition requiring any security and the security conditions imposed here do not fit within the subsection. Another significant distinction is that there was an alternative source of power to impose the condition in that case - sub-s 91(3)(f), since re-enacted as sub-s 80A(1)(f), noted in par [6] above. In Olivieri, Spigelman CJ attributed a particular significance to the existence of an explicit power enabling the imposition of a condition requiring the carrying out of works (at pars [23] - [25] of the judgment). No similar specific power exists to enable the imposition of the kind of conditions in dispute in this case. 22 A further difference is the detailed regime in sub-ss 80A(6) to (10) regulating the matters in respect of which security may be required, requiring that the security is to be for a reasonable amount, providing a choice as to how the security is to be provided and regulating the use to which the security may be put and how any balance is to be dealt with. If a consent authority has a general power to require a security other than as provided for in sub-s 80A(6) then it is able to avoid most of these protective provisions. 23 Seventhly, s 98A does not create a power to require the provision of security. The existence of s 98A is against the council's contentions. On the contrary, it confirms the fact that sub-s 80A(6) is the sole or exclusive power to impose a condition requiring the provision of security. What s 98A does is provide a separate right of appeal against the imposition of such a condition, including a right of appeal against the failure or refusal of the consent authority to release a security held by it - a right of appeal which does not exist under the general right of appeal under s 97 of the EP&A Act. If sub-s 80A(6) were not the sole or exclusive power to impose a condition of consent requiring the provision of security, then such a condition imposed under the general power to impose conditions would not be the subject of any right of appeal against the failure or refusal of the consent authority to release a security held by it. 24 Eighthly, neither does s 121ZJ of the EP&A Act create a power to require the provision of security, as noted in pars [10] - [11] above. Mr Craig submits that since the consent authority has a right to enter upon its own land to enforce sub-s 80A(6) then sub-ss 121ZJ(6) and (7) must refer to the provision of security generally as a condition of development consent. I am unable to agree. Section 121ZJ relates specifically to situations where a person has failed to comply with an order under s 121B. It might be suggested that if a council decides to issue an order under s 121B, then it has elected to go down that path, rather than exercise its powers under sub-ss 80A(6) to (10). If the council chooses to go down the s 121B path, then it could be said that it has elected to follow the procedures governing the giving of orders, which would in turn give rise to the need for provisions such as sub-ss 121ZJ(6) and (7). 25 I conclude, therefore, that the applicant succeeds in the first of the questions raised for separate determination, noted in par [4] above.

26 The conclusion that sub-s 80A(6) of the EP&A Act is exhaustive and provides the exclusive source of power for the imposition of a condition of consent requiring the provision of security or a bond, is determinative. It is not necessary, therefore, to consider the second question raised, namely, whether such a condition fails to satisfy the three Newbury tests of validity. The three Newbury tests or principles were re-stated and adopted by the High Court in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30, per McHugh J at [57] and Callinan J at [155], namely: a condition attached to a grant of planning consent must be for a planning purpose and not for any ulterior purpose; it must fairly and reasonably relate to the proposed development; and it must not be so unreasonable that no reasonable planning authority could have imposed it (Newbury District Council v Secretary of State of the Environment [1981] AC 578). 27 The applicant accepts that a condition of development consent requiring landscaping to be carried out in a particular manner would be a valid condition having regard to the combined application of sub-ss 80A(1) and 79C(1)(b). It is also clear that such a condition may satisfy the threefold Newbury test, depending upon the circumstances of the particular case. The applicant submits, however, that a condition requiring a bond as security is one step removed from the imposition of such a landscaping condition and could never satisfy what is known as the Newbury tests of validity. 28 In Temwood Holdings, Callinan J observed, at [155], that there seems to be some overlap between the second and third limbs of the Newbury test: It may be doubted whether the third limb of the test is necessary. It uses the language of Wednesbury [ Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223], but if, as the second limb of the test requires, the condition must fairly and reasonably relate to the proposed development, it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case. The reference therefore to Wednesbury unreasonableness serves to confuse, rather than to illuminate the issue in cases of potentially unlawful conditions. 29 It is not appropriate to determine the second question as a separate question of law.. The question of whether a condition of consent satisfies the Newbury tests depends upon the circumstances of the particular case. In the present case I am asked to determine a bare legal question, without knowing all the facts and circumstances of the particular case. It is a question which can only be determined in the course of a full hearing on the merits. It is not an appropriate question for preliminary or separate determination. 30 The applicant also submits that the condition in each case is void for uncertainty. In the present case, there is a number of conditions that have been imposed on each development consent which may or may not qualify as "landscaping conditions" and there is clear scope for disagreement as to which conditions are properly so characterised. It is submitted that in view of the consequences of non-compliance and the risk of the security being forfeited, the relevant conditions should be clearly identified. I agree. The condition in each case as drafted is too uncertain and is void for uncertainty: Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59.

Conclusion 31 I answer the question for separate determination as follows: Question: Whether the imposition of a condition of development consent by a local council requiring the payment of a monetary bond for the stated purpose of protecting trees and/or landscaping on private property: (a) falls outside the scope of bonds which may be lawfully imposed pursuant to the EP&A Act -

Answer : Yes. (b) fails to meet the tests established in Newbury District Council v Secretary of State for the Environment [1981] AC 578 with respect to the statutory power to impose conditions of development consent - Answer : It is inappropriate to answer as a separate or preliminary question. (c) is ultra vires - Answer : The particular conditions in the present cases are void for uncertainty.

I hereby certify that the preceding 31 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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.