Charara v Ku-ring-gai Council

Land and Environment Court (NSW)|2019-11-15|Before: Pain J

SOLICITORS: Automic Legal (Applicant) Sparke Helmore (Respondent) File Number(s): 19/149661

Judgment

The Applicant commenced these Class 1 proceedings under s 8.18(4) of the Environmental Planning and Assessment Act 1979 (EPA Act) challenging a stop work order dated 16 April 2019 issued by Ku-ring-gai Council (the Council) to the Applicant. The stop work order issued under s 9.34 of the EPA Act prohibited the removal of trees or building work on the Applicant's land in Burns Road Wahroonga for the specified reason that certain development consents had lapsed. It is an offence not to comply with a stop work order under s 9.37 of the EPA Act. The parties have filed statements of facts and contentions (SOFAC). I am considering the Applicant's notice of motion of 15 October 2019 which seeks an order striking out the Council's SOFAC in reply relying on r 14.28 of the Uniform Civil Procedure Rules 2005 (UCPR) and s 23 of the Land and Environment Court Act 1979 (LEC Act). Orders in the notice of motion in respect of a notice to produce served by the Council on the Applicant were not pressed.

Uniform Civil Procedure Rules 2005

The UCPR relevantly provides: Part 14 Pleadings … Division 5 General … 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).

Land and Environment Court Act 1979

The LEC Act relevantly provides: Part 3 Jurisdiction of the Court Division 1 General … 17 Class 1 - environmental planning and protection appeals The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of the following - … (d) appeals, objections and applications under sections 75K, 75L, 75Q, 75W(5), 95A, 96, 96A, 97, 97AA, 98, 98A, 109K, 121ZK, 121ZM, 121ZS and 149F of the Environmental Planning and Assessment Act 1979, … 20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement (1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of the following - … (c) proceedings under section 123 of the Environmental Planning and Assessment Act 1979, … (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings - (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, (d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract. … 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 23 Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. … Part 4 Exercise of jurisdiction … Division 3 Organisation generally … 31 Irregularity of proceedings (1) This section applies if the Court determines, on application by a party or of its own motion, that any proceedings before it are not being dealt with in the manner appropriate to the class of jurisdiction to which they belong. (2) In the circumstances referred to in subsection (1), the Court may make either of the following orders on such terms as may be necessary - (a) an order that the proceedings be dismissed, (b) an order that the proceedings be dealt with in the appropriate manner. (3) If the Court makes an order referred to in subsection (2)(b) - (a) the proceedings are taken to have been duly commenced, and (b) any step that has been taken in the proceedings is deemed to have been duly taken. (4) The Court may make such orders as it thinks fit for the future conduct of the proceedings. … 33 Exercise of jurisdiction generally (1) Classes 1, 2 and 3 of the Court's jurisdiction shall, in accordance with this Act, be exercised by a Judge or one or more Commissioners. (2) Classes 4, 5, 6 and 7 of the Court's jurisdiction shall, in accordance with this Act, be exercised by a Judge. ... Division 4 Special provisions respecting Class 1, 2 or 3 proceedings … 39 Powers of Court on appeals (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. ... (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. …

Environmental Planning and Assessment Act 1979

The EPA Act relevantly provides: Part 4 Development assessment and consent … Division 4.9 Post-consent provisions 4.53 Lapsing of consent … (4) Development consent for - (a) the erection of a building, or (b) the subdivision of land, or (c) the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section. (5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse. … Part 8 Reviews and appeals … Division 8.5 Appeals - development control orders 8.18 Appeals concerning orders (cf previous s 121ZK) (1) A person who is given a development control order may appeal to the Court against the order. … (3) The appeal may be made only - (a) within 28 days after the development control order is given to the person, or (b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person. (4) On hearing an appeal, the Court may - (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. … Part 9 Implementation and enforcement … Division 9.3 Development control orders 9.34 Orders that may be given (cf previous s 121B) (1) The development control orders that may be given under this Act are as follows - (a) general orders in accordance with the table to Part 1 of Schedule 5, … 9.35 Relevant enforcement authorities who may give orders (cf previous ss 121B, 121C) (1) Development control orders may be given by the following (a relevant enforcement authority) - … (b) a council, … 9.37 Failure to comply with order - offence (cf previous s 125) (1) A person to whom a development control order is given or is taken to have been given must comply with the terms of the order. (2) It is a sufficient defence to a prosecution for an offence against this section if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order. Maximum penalty - Tier 1 monetary penalty. … Schedule 5 Development control orders Part 1 General orders Column 1 Column 2 Column 3 To do what? When? To whom? ... Stop Work Order Building work or subdivision work is carried out - • Owner of the land 2 To stop building work or subdivision work carried out in contravention of this Act • in contravention of this Act, or • Any person apparently engaged in the work • in a manner that would affect the support of adjoining premises.

Terms of order

The stop work order issued to the Applicant on 16 April 2019 provides: TERMS OF ORDER 1.1 You are ordered to stop removing trees and to not carry out any building or other works on the Property that is not permitted under your development consent no. DA0429/10 (Consent). 2. You are ordered not to carry out any building work that is the subject of development consents as DA0431/10, DA0432/10, DA0433/10, DA0434/10 because these consents have lapsed. REASONS FOR THE ORDER 1 Development has been carried out on the Property in contravention of Section 4.2 of the Environmental Planning and Assessment Act, 1979, which states; If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: i) Such development has been obtained and is in force, and; ii) The development is carried out in accordance with the consent and the instrument. 2. Condition 64 of the Consent only permitted the removal of T7, being a Pistacia chinensis adjacent to the Property's Ancona Road Boundary. 3. The following trees have been removed from the Property: a. No. 9 - Pistacia Chinensis - Pistadal b. No. 10 - Rhododendron sp. - Broad leaf Rhododendron c. No. 11 - Chamaecyparis sp. - Cypress d. No. 16 - Eucalyptus paniculata - Grey lronbark e. No. 17 - Chamaecyparis obtuse "Crippsii" - Golden Cripps Cypress f. No. 18 - Allocasuarina torulosa - Forest Oak g. No. 19 - Chamaecyparis obtuse - Fatse Hinoki Cypress h. No. 2 - Eucalyptus paniculata - Grey lronbark 4. Those trees were not permitted to be removed under the Consent. 5. Trees 9, 10, 11, 16, and 17 were permitted to be removed under condition 54 of development consent DA431/10. However, that consent has lapsed because the deferred commencement condition imposed on it was not satisfied within the required time. 6. Trees 19 and 20 were permitted to be removed under condition 59 of development consent DA433/10. However, that consent has lapsed because the deferred commencement condition imposed on it was not satisfied within the required time. 7. The Council has informed you and your legal representatives on numerous occasions that development consents numbered DA0431/10, DA0432/10, DA0433/10, DA0434/10 have lapsed and cannot be relied upon. PERIOD FOR COMPLIANCE WITH THE ORDER The order is to be complied with immediately

Applicant's statement of facts and contentions

The Applicant's SOFAC filed 16 July 2019 provide: PART A - FACTS Subject of the appeal 1 This is an appeal from a general stop work development control order given by the respondent, Ku-ring-gai Council (the Council) to the applicant dated 16 April 2019 and numbered EPA0032/19 (Stop Work Order). 2 The Stop Work Order required the applicant: a. to stop removing trees, and not to carry out any building or other works on the property that are not permitted under the applicant's development consent DA0429/10; and b. not to carry out any building work that is the subject of the applicant's development consents DA0431/10, DA0432/10, DA0433/10 and DA0434/10 on the ground that those development consents have lapsed. The land 3 The land the subject of the Stop Work Order is the land described in Lot 1, DP 234275, commonly known as 113 Burns Road, Wahroonga NSW 2076 (Land). 4 The applicant is the registered proprietor of the Land. Statutory context 5 The Stop Work Order was issued under s 9.34 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and Part 1 of Schedule 5 to the EPA Act. 6 This appeal is brought by the applicant under s 8.18 of the EPA Act. 7 This appeal concerns: a. development consents which were granted in September 2010 pursuant to Part 4, Division 2 of the EPA Act (as then in force, being generally equivalent to Part 4, Division 4.3 of the EPA Act as currently in force); b. development consent modifications which were made in February 2015 pursuant to s 96 of the EPA Act (as then in force, being generally equivalent to s 4.55 of the EPA Act as currently in force); and c. construction certificates which were issued in September 2015 pursuant to Part 4A, Division 1 of the EPA Act (as then in force, being generally equivalent to Part 6, Division 6.3 of the EPA Act as currently in force). Circumstances leading to the appeal 8 On 20 September 2010, the Council granted the following development consents in respect of the Land: a. DA0429/10, dated 29 September 2010, which was to operate from 29 September 2010 and to lapse on 30 September 2015; b. DA0430/10, dated 30 September 2010, which was to operate from 30 September 2010 and to lapse on 1 October 2015; c. DA0431/10, dated 1 October 2010, which was subject to a deferred commencement condition and to lapse 5 years and 1 day from the date of completion of the deferred commencement condition, with the deferred commencement condition being that: within 12 months of the date of the consent, the applicant was to submit for Council's approval registered documentary evidence from the Department of Lands that the subdivision DA0430/10 has been registered and that the lot exists, and the consent was not to operate until the registered documents evidence was submitted to and approved by the Council; d. DA0432/10, dated 1 October 2010, which was to operate from 1 October 2010 and to lapse on 2 October 2015; e. DA0433/10, dated 1 October 2010, which was subject to a deferred commencement condition and to lapse 5 years and 1 day from the date of completion of the deferred commencement condition, with the deferred commencement condition being that: within 12 months of the date of the consent, the applicant was to submit for Council's approval registered documentary evidence from the Department of Lands that the subdivision DA0432/10 has been registered and that the lot exists, and the consent was not to operate until the registered documents evidence was submitted to and approved by the Council; and f. DA0434/10, dated 5 October 2010, which was to operate from 5 October 2010 and to lapse on 6 October 2015. 9 On 30 September 2014, the applicant made certain applications to the Council to have each of the development consents modified, other than DA0429/10, including, inter alia, by the deletion of the deferred commencement conditions in development consents DA0431/10 and DA0433/10. Particulars a. Development consent modification applications: i. MOD0158/14 in respect of DA0430/10; ii. MOD0159/14 in respect of DA0431/10; iii. MOD0160/14 in respect of DA0432/10; iv. MOD0161/14 in respect of DA0433/10; and v. MOD0162/14 in respect of DA0434/10. 10 On 13 February 2015, the Council granted approval to the applicant's applications for the modification of development consents DA0431/10 and DA0433/10 by deleting the deferred commencement conditions in each of those consents pursuant to s 96 of the EPA Act (as then in force). 11 Prior to the Council's approval of the removal of the deferred commencement conditions in development consents DA0431/10 and DA0433/10 on 13 February 2015, those deferred commencement conditions had not been satisfied. Actions of the applicant 12 On or about 18 September 2015, certain construction certificates under Part 4A, Division 1 of the EPA Act (as then in force) were issued in respect of the Land. Particulars a. Construction certificate CC 164/15/1 dated 18 September 2015 issued by Sam Kayellou of SK Building Solutions With Expertees Pty Ltd ACN 163 726 369 (SK Building) in respect of development consent DA0429/10. b. Construction certificate CC 164/15/2 dated 18 September 2015 issued by Sam Kayellou of SK Building in respect of development consent DA0431/10. c. Construction certificate CC 164/15/3 dated 18 September 2015 issued by Sam Kayellou of SK Building in respect of development consent DA0433/10. 13 Between 26 February and mid March 2019 certain trees were removed from the Land. Particulars a. The trees removed were those specified on page 3 of the Stop Work Order. PART B - CONTENTIONS Appeal must be upheld: validity of the development consents 14 As at the date on which development consents DA0431/10 and DA0433/10 were modified by the Council as set out above, the Council had not obtained any orders to set aside any of the development consents or to have any of the development consents declared void. The modifications to development consents DA0431/10 and DA0433/10 as set out above had the effect of removing the deferred commencement conditions in those development consents. 15 In September 2015, after the issue of the construction certificates and prior to 1 October 2015, certain work was physically commenced on the Land. Particulars a. Physical survey work was conducted on the Land in September 2015. b. Construction of partial footings was conducted on the Land in September 2015. 16 In the premises, the development consents have not lapsed and remain valid by reason of s 4.53(5) of the EPA Act. 17 To date, the Council has not obtained any orders to set aside any of the development consents as modified or construction certificates, or to have any of the development consents as modified or construction certificates declared void. 18 In the premises, the applicant says that: a. the development consents as modified and construction certificates are valid; b. the development consents as modified and construction certificates permit the work the subject of the Stop Work Order to be performed; and c. by reason of those matters, the Stop Work Order ought to be set aside and the appeal must be upheld. Appeal must be upheld: estoppel as to validity of modifications 19 On 10 February 2015, the Council represented to the applicant that: a. approval of the applicant's applications for the removal of the deferred commencement conditions in development consents DA0431/10 and DA0433/10 would allow all approved dwellings the subject of the development consents to be constructed concurrently and would achieve the applicant's request; b. the Council would not approve the remainder of the applicant's applications for modification of the development consents, because it was not necessary to do so to allow the approved dwellings the subject of the development consents to be constructed concurrently, and because the modifications could result in undersized vacant lots; and c. the applicant should withdraw the applicant's applications for modification of the development consents other than for the removal of the deferred commencement conditions in development consents DA0431/10 and DA0433/10. Particulars a. Email from Amy Bentley of the Council to Tony Moody of Whittens & McKeough, copied to others, sent on 10 February 2015 at about 11.58am. 20 On or about 16 February 2015, the Council: a. notified the applicant that the Council had granted approval to the applicant's applications for the modification of development consents DA0431/10 and DA0433/10 by deleting the deferred commencement conditions in each of those consents pursuant to s 96 of the EPA Act (as then in force); and Particulars i. Notice of determination of a section 96 application from the Council to the applicant dated 16 February 2015, with reference MOD0159/14. ii. Notice of determination of a section 96 application from the Council to the applicant dated 16 February 2015, with reference MOD0161/14. b. represented to the applicant that: i. the development consents were valid and in force; ii. the modifications to development consents DA0431/10 and DA0433/10 were valid and effective; iii. the applicant could rely upon the terms of the development consents, after those modifications; and iv. the applicant could validly undertake the work the subject of the development consents, subject to compliance with any other requirements under the EPA Act. Particulars i. The representations were implied from all the circumstances, including: 1. the Council's grant of approval to the modifications; 2. the Council's notifications to the applicant that the modifications had been approved; 3. the circumstances in which those modifications were approved; and 4. the fact that the Council did not suggest to the applicant that there were any reasons why the modifications might be invalid. 21 On or about 19 February 2015, in reliance upon the representations set out above, the applicant withdrew her applications for modification of the development consents other than for the removal of the deferred commencement conditions in development consents DA0431/10 and DA0433/10. Particulars a. Email from Andrew Crockett of Whittens & McKeough to Amy Bentley of the Council, copied to others, sent on 19 February 2015 at about 2.31pm. b. Email from Andrew Crockett of Whittens & McKeough to Selwyn Segall of the Council, copied to others, sent on 20 February 2015 at about 12.02pm. 22 Between about March 2015 and September 2015, in reliance upon the representations set out above, the applicant acted to her detriment by incurring costs and liabilities in respect of work the subject of the development consents. Particulars a. The applicant withdrew her applications for modification of the development consents other than for the removal of the deferred commencement conditions in development consents DA0431/10 and DA0433/10 as set out above. b. The applicant obtained construction certificates on all the DA's to construct all four houses, incurring cost in doing so. c. The applicant paid s94 contributions. d. The applicant entered into a home building contract with Dalim Pty Ltd on or about 3 September 2015 and paid a deposit and preliminaries against that contract. e. The applicant incurred the following costs and liabilities: i. s94 contributions - $101,108.58; ii. Lackenby Hayword - $495; iii. Archicentre Pty Ltd - $877.80; iv. Sam Kayellou (certifier) - $6,700; v. Sam Kayellou (certifier) - $108.54; vi. Fadi Habbouche (engineer and consultant) - $1,925; vii. PR & CM Drafting Pty Ltd - $3,160 viii. RCO Engineering - $30,250; and ix. Dalim Pty Limited(builder) preliminaries, site set up and home warranty in accordance with building contract dated 3 September 2015 - $115,000. f. The applicant caused members of the applicant's immediate family, being Joseph Charara and Tony Charara, to incur the following costs and liabilities: i. The applicant entered into an agreement with Joseph Charara whereby Joseph Charara purchased and renovated a property at his expense for the applicant to relocate to at 26a Pullbrook Parade Hornsby in return for a substantial share of the 4 house development on the basis that the development would proceed; ii. Had the development not been approved the applicant would not have rearranged its affairs and Joseph Charara would not have expended considerable time and funds to renovate a house to relocate the applicant; and iii. The applicant would have sold the property in 2015. 23 On or about 28 November 2017, the Council first notified the applicant of the Council's concern that development consents DA0431/10 and DA0433/10 lapsed on 2 October 2011, and that development consents DA0432/10 and DA0434/10 either lapsed or were incapable of implementation. Particulars a. Letter from the Council to the applicant dated 28 November 2017. 24 In the premises, in the event that any or all of the development consents or construction certificates are found not to be valid or not to permit the work the subject of the Stop Work Order (which is denied), the applicant says that: a. the Council is estopped from denying the validity of those development consents and construction certificates; b. the Council is estopped from denying that those development consents and construction certificates permit the work the subject of the Stop Work Order; c. the Council is estopped from denying that the work the subject of the Stop Work Order was performed contrary to the EPA Act or otherwise impermissibly, illegally or contrary to law; and d. by reason of those matters, the Stop Work Order ought to be set aside and the appeal must be upheld. Other grounds for upholding the appeal 25 Further, in the event that any or all of the development consents or construction certificates are found not to be valid or not to permit the work the subject of the Stop Work Order (which is denied), the applicant: a. repeats the matters set out above; and b. says that the Stop Work Order ought to be set aside in the exercise of the Court's discretion under s 8.18 of the EPA Act.

Council's statement of facts and contentions

The Council's SOFAC in reply filed 14 August 2019 provide: PART A - FACTS 1. The Respondent agrees with paragraphs 1 - 6 of the Applicant's statement of facts and contentions (SOFAC). 2. The Respondent agrees in part with paragraph 7 of the SOFAC but says that the modifications and construction certificates could not have been validly issued and are a nullity. 3. The Respondent agrees with paragraphs 8 and 9 of the SOFAC. 4. In response to paragraph 10 of the SOFAC, the Respondent says that on 13 February 2015, the Council purported to, but had no power to, grant approval to the modification applications. 5. In response to paragraph 11 of the SOFAC, the Respondent agrees that as at 13 December 2015, the deferred commencement conditions had not been satisfied but says that at no time did Council have power to consent to the removal of those conditions and as such the said conditions were never removed. 6. In response to paragraph 12 of the SOFAC, the Respondent says that there was no power to issue the construction certificates insofar as they related to development consents DA0431/10 and DA0433/10, because there is no power to issue a construction certificate in reliance on a development consent that has lapsed. 7. The Respondent agrees with paragraph 13. PART B - CONTENTIONS Contention One - Validity of development consents 1. The Council contends that development consents DA0431/10 and DA0433/10 (Consents) lapsed on 1 October 2011, due to the operation of section 95(6) of the Environmental Planning and Assessment Act 1979 (EPA Act), and could not have been lawfully modified. Particulars (a) The lapsing of the Consents occurred as a matter of law by the operation of the EPA Act and did not, as the applicant asserts, remain valid unless and until declared invalid by the Court; (b) The purported modification approvals by the Council to delete the deferred commencement conditions were a legal nullity and could not operate to "revive" or make operative the lapsed consents; (c) The issuing of a construction certificate in respect of a development consent that has lapsed is a legal nullity and is not capable of making operative a lapsed consent; (d) The physical commencement of work on the land pursuant to a lapsed development consent cannot make operative that lapsed consent. Contention Two - Estoppel 2. The Council is not estopped from denying the validity of the development consents and construction certificates, or otherwise in the terms alleged. Particulars (a) The Council is a body politic established under the Local Government Act 1993 and has functions conferred on it under that Act and under the EPA Act, including regulatory functions; (b) In exercising its regulatory functions, the Council acts in the public interest; (c) The Council cannot be estopped from carrying out its public functions and duties under the EPA Act; (d) The invalidity of the Consents occurred as a matter of law from the operation of the EPA Act and the Council cannot, by representation, alter the operation of the EPA Act; (e) if (which is denied) an estoppel of the kind alleged is available as a matter or law, the Council denies that its conduct gave rise to an estoppel, either as alleged or at all. Contention three - Discretion 3. For the reasons set out above, the Court should not revoke the Order as a matter of discretion.
Exhibit A was the court book. The relevant background facts for the purposes of this notice of motion are set out in the Applicant's lengthy SOFAC at pars 8-13. It is unnecessary to consider these in detail in this judgment except that I note that the Applicant has relied on the modified development consents in obtaining construction certificates and caused work to be done in reliance on these instruments inter alia. The Applicant's SOFAC state three bases for validity of the modified development consents which the Council asserts have lapsed in the reasons for the stop work order. These include that physical works have sufficiently been carried out to satisfy s 4.53(5) of the EPA Act and that the Council is estopped from denying the validity of the relevant development consents and construction certificates at pars 19-24. The Council's SOFAC generally accept matters of fact. Its contentions are that due to the operation of s 95(6) of the EPA Act the development consents could not lawfully be modified and that it is not estopped from denying their validity.

Applicant's submissions

The Applicant submitted that the Council's SOFAC in reply ought to be struck out as they disclose no reasonable cause of action known in Class 1 proceedings and are an abuse of process: UCPR r 14.28(1)(a) and (b). The Council proceeds on the basis that the relevant development consents (as modified by it) and the construction certificates are invalid and can be ignored. That issue can only be raised in Class 4 proceedings and is beyond the Court's jurisdiction in these Class 1 proceedings. The Council should commence Class 4 proceedings to seek to invalidate those modified development consents and construction certificates. It has not done so.
The Court does not have any power to invalidate or to set aside development consents or construction certificates in Class 1 proceedings. In Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53 (Greentree) at [38] I held that: … While legal questions of invalidity of a decision can be raised in Class 1 matters, a challenge to the power of the decision-maker to make the decision at all is not appropriate in Class 1 proceedings … and at [42]: … if the Applicant wishes to maintain judicial review proceedings seeking a declaration that the Stop Work Order is void this must be pursued in Class 4 proceeding before this Court.
In Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85 (Birdon) at [16] I held that: … it is not open in these Class 1 proceedings to seek to have a condition of development consent or part thereof declared invalid. and at [17]: The general principle that the validity of a condition of development consent cannot be challenged in Class 1 proceedings applies in this matter.
That reasoning was recently approved in Blacktown City Council v Satmell Holdings Pty Ltd [2019] NSWLEC 93 (Blacktown) at [44]-[45].
Further, the Court does not have power in Class 1 proceedings to render a development consent or construction certificate invalid if that is the practical effect of the Court's decision. That is, the Court cannot base its decision upon an investigation into whether or not a development consent is valid, even if the Court does not purport to make a declaration or order invalidating the consent: compare Blacktown at [30]-[31].
The Applicant says in her SOFAC that she had the benefit of development consents following their modification by the Council and that she had the benefit of construction certificates issued in respect of those development consents. The Council says in its SOFAC in reply that the development consents had lapsed (Part B at par 1), that the Council's modification of the development consents were invalid because they were made beyond power (Part A at pars 2, 4 and 5; Part B at par 1), and that the construction certificates were invalid as they have been issued beyond power (Part A at pars 2 and 6). That is, the substance of the Council's defence is that it says that the development consents as modified and the construction certificates are invalid.
Importantly, this is not a case of a development consent which merely lapses. Rather, it is a case where the Council has modified a development consent which it now says has lapsed and where construction certificates were issued in respect of the modified development consents. The Council's defence proceeds on the basis that the Council's modification of the development consents, and the construction certificates, can be ignored.
It is necessary for the Council to commence Class 4 proceedings to seek orders or declarations invalidating the development consents as modified and the construction certificates: Smith v East Elloe Rural District Council [1956] AC 736 (Smith v East Elloe) at 769-770; Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 (Ralan); and Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 96 NSWLR 434; [2017] NSWCA 263 (Bunderra Holdings). If Class 4 proceedings are commenced: 1. the Council will have to deal with whether the proceedings are statute-barred; 2. the Council bears the onus of proof of establishing its case of whether the development consents and construction certificates are void or voidable; 3. the grant of relief sought by the Council is discretionary and the Court will consider the particular circumstances of the proceedings including delay; 4. the rules of evidence apply; and 5. there are cost consequences particular to Class 4 proceedings.
The Council has not done so, but rather seeks to challenge the development consents and construction certificates indirectly in these proceedings. For the reasons set out above, the defences raised by the Council fall outside the Class 1 jurisdiction of the Court. As the Council has raised no additional defences in its SOFAC in reply, it ought to be struck out.

Council's submissions

There is no difficulty in the Council relying on the matters identified in its SOFAC in these Class 1 proceedings. This case is the same as Savellis v Sutherland Shire Council [2018] NSWLEC 100 (Savellis) and Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 (Dennes) (a similar case to Savellis).
A defence should only be struck out if manifestly untenable: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69. Greentree is different as there a judicial review ground was sought to be pursued in Class 1 proceedings. The Council does not need to seek declarations of invalidity because the statute says that no development consent exists. Practical considerations are not a matter before the Court. Greentree and Birdon are not on point as there is no challenge to the validity of the stop work order.
There is no need to seek judicial review of anything that the Council has done as by force of statute there is no consent. There is a live dispute between Pain J (in Greentree and Birdon) and Pepper J (in Blacktown) in contrast to Craig J in Australian International Academy of Education Inc v The Hills Shire Council (2013) 196 LGERA 1; [2013] NSWLEC 1 at [101]-[105]. For a strike-out order to be made the Court must be satisfied that Craig J's position is untenable.
Blacktown was a s 56A appeal from a commissioner and Pepper J's analysis was particularly focussed on the role of commissioners in Class 1 proceedings.
No abuse of process is occurring in these proceedings by the Council's SOFAC in reply. The issue is whether the Applicant can rely on the modification and that can be considered in these Class 1 proceedings.

Consideration

The circumstances leading up to the issue of the stop work order the subject of this appeal are identified in the Applicant's SOFAC which identify the terms of the stop work order and the statutory context as including development consents modified by the Council under the EPA Act and construction certificates issued under the EPA Act. There is no dispute about the matters, for the purposes of this hearing at least, identified in pars 8-11 concerning the deferred commencement conditions of the development consents issued in September 2010, the application for modification of the development consents in September 2014 by the deletion of the deferred commencement conditions, the Council's approval of those modification applications in February 2015 and that prior to the Council's approval of the deletion of the deferred commencement conditions they had not been satisfied. Three construction certificates were obtained by the Applicant in September 2015 from a private certifier (par 12).
Certain physical work has been undertaken as specified in par 15 including survey work and the construction of partial footings, which the Applicant relies on to support physical commencement of the works as required by s 4.53(5) of the EPA Act. Certain trees have also been removed and are the subject of the stop work order. The Applicant has incurred substantial costs in relying on the modified development consents and construction certificates as detailed in par 22 particulars (a)-(e), including payment of approximately $100,000 in s 94 contributions presumably to the Council, site set-up costs of $115,000 and other costs of approximately $43,000. Further financial and other consequences for the Applicant as a result of relying on the development consents and construction certificates are detailed in par 22 particular (f).
For the Council's stop work order to be valid, its assertion therein that specified development consents have lapsed by operation of s 95(6) of the EPA Act must be legally available to it. While not explicitly stated in the stop work order, the Council's position is also that the three construction certificates are also invalid. That is stated in the Council's SOFAC. The essential issue that arises is whether the Council can unilaterally re-exercise its power under the EPA Act in 2017 by asserting that the instruments issued by it in 2015, the modified development consents, are a nullity at law relying on s 95(6) (now s 4.53).
On one view the Council's actions infringe the fundamental administrative law principle that once administrative power has been exercised however mistakenly an administrative decision-maker cannot on its own re-exercise power to revoke or treat its decision, here to issue modification of development consents, as a nullity - only a court of competent jurisdiction can. Authorities supporting this principle are referred to below. This fundamental principle is subject to any relevant statutory provisions, here the EPA Act. Section 4.57 of the EPA Act provides for the revocation of development consents in certain circumstances, following a process which includes a local council notifying affected parties, a local council receiving submissions and provision for compensation for expenditure made in reliance on a consent. None of these processes have been followed here by the Council.
The Council's assertion in its SOFAC in reply at par 2 that "the modifications and construction certificates could not have been validly issued …" ignores the fact that the modifications were issued by the Council as provided for under s 96 of the EPA Act and that as a direct consequence three construction certificates were issued as provided for in the EPA Act in reliance on those modifications. Reliance has been placed on all these instruments by the Applicant. The Council's actions have given rise to substantial negative financial and other consequences for the Applicant as detailed in the Applicant's SOFAC.
A well-established principle is that a development consent including as modified is valid unless it is declared invalid by the Court: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243; [1999] NSWCA 317 (Coalcliff) at [83] (Stein JA, Meagher JA and Hodgson CJ in Eq agreeing), cited in Ferral-Smith v Villanueva (No 2) [2011] NSWLEC 206 at [8]. The beneficiary of a development consent including where modified is generally able to rely on it.
Coalcliff cited well-known authorities such as Smith v East Elloe. In Smith v East Elloe the Land (Authorisation Procedure) Act 1946 (UK) permitted a person aggrieved by a compulsory purchase order to question the validity of such an order on the basis that the authorisation of a compulsory purchase was not empowered to be granted under the Act. The appellant sought inter alia a declaration that the order was made in bad faith. The issue before the House of Lords was whether the Act provided an aggrieved person the opportunity to challenge the validity of an order on the basis that it was made in bad faith. Lord Radcliff in dissent stated at 769-70: An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.
In R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26, the prosecutor Parkes Rural Distributions Pty Ltd challenged the validity of a repayment certificate issued under the Petroleum Products Subsidy Act 1965. Wilcox J stated at 33: … it is now accepted that, however apparent the defect may be, an administrative decision remains good in law unless and until it is declared to be invalid by a court of competent jurisdiction: see Smith v East Elloe Rural District Council [1956] AC 736 at 769-70; Durayappah v Fernando [1967] 2 AC 337; Calvin v Carr [1980] AC 574 at 589-90; (1979) 22 ALR 417; and Forbes (CLR) at 277. The principle is expressed by Wade, Administrative Law, 5th ed, p 314: The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the "void" order remains effective and is, in reality, valid.
In F Hoffmann-La Roche and Co AG and Ors v Secretary of State for Trade and Industry [1975] AC 295, Lord Diplock stated at 365 (cited by Cole JA in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 88): Under our legal system, however, the courts as the judicial arm of government do not act on their own initiative. The jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give it locus standi to initiate proceedings to challenge the validity of the instrument. Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed. It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of the court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings.
All the well-known cases cited and extracted in [29]-[32] above are long-standing authority for what is stated in [27] above.
No other case in NSW of a local council acting unilaterally, as in this case, has been identified by the parties or by the Court, suggesting that the Council's actions are uncommon if not unique. Unilateral action by a council in treating a development consent or modification it issued as void or invalid would be highly likely to result in action in the Court. The only case found with broadly similar circumstances was in the Supreme Court of the Australian Capital Territory (ACT), Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the Australian Capital Territory [2019] ACTSC 58 (Capital Recycling Solutions). In Capital Recycling Solutions, the Planning and Land Authority of the ACT (the Authority) approved a development application (DA) (first decision) and subsequently voluntarily reviewed this decision, resulting in a second decision which purported to change the first decision by refusing the DA. The plaintiff successfully sought declaratory relief that the second decision was void ab initio on the basis that the Authority did not have jurisdiction to make the second decision.
In Capital Recycling Solutions, McWilliam AsJ stated at [20]-[25: 20. There is a line of authority to the effect that invalidity is required to be established by a judicial rather than an administrative determination, and any decision tainted by jurisdictional error is valid and effective in law until such a determination is made. Examples are to be found in: Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 per Aikin J at 277; Ousley v The Queen (1997) 192 CLR 69 (Ousley) per Gummow J at 130-131; and R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26 at 33. 21. If the position were otherwise, the operation of the vast number of administrative decisions made daily would be compromised, and the system would be unworkable. Indeed, to paraphrase the legal philosopher Hans Kelsen, the system would be reduced to a "state of anarchy": see State of New South Wales v Kable [2013] HCA 26; 252 CLR 118 per Gageler J at [40] quoting Hans Kelsen. 22. That statement has particular force in a planning context. As raised with the parties during the hearing, no one would be in a position to build or develop with any certainty in the Territory if a development approval granted on one day were able to be unilaterally treated as void and of no effect by the Authority the next day. 23. The proposition that invalidity is to be established by judicial determination in a planning context is consistent with what has been well-established elsewhere: see, for example, F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306 (Hannan) per McHugh JA at 327; and, GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 (GPT Re Ltd) per Basten JA at [90]. 24. In Hannan, McHugh JA stated at 327 (citations omitted): The [Environmental Planning & Assessment Act] shows in my opinion a clear intention that a breach of the Act only has the consequences which the Act provides. Questions as to whether a breach of the Act is void or voidable are beside the point. This is because the Act prescribes exhaustively the civil remedies available in respect of a breach of the Act and also because proceedings for breach can only be brought in the Land and Environment Court. Professor SA De Smith has pointed out in Judicial Review of Administrative Action, that "void acts and decisions are indeed usually destitute of legal effect; they can be ignored with impunity; their validity can be attacked, if necessary, in collateral (or indirect) proceedings; they confer no legal rights on anybody". But the provisions of the [EP&A Act] and the [Court Act] to which I have just referred make it plain that a decision made in breach of the Act cannot be attacked in other courts or in collateral proceedings. So far as other courts are concerned the decision is unchallengeable and must be acted on. This is the antithesis of a void decision. The only civil remedies for breaches of the Act are those conferred by the Act. 25. Hannan was referred to by Basten JA in Rossi v Living Choice Australia Ltd [2015] NSWCA 244 at [44], who went on to say at [45]: It follows from this analysis that even a determination which has failed to take into account a mandatory consideration is not void or invalid until declared to be so by the court.
The observations in [21]-[23] of Capital Recycling Solutions apply to all planning systems in Australia.
Turning to the construction certificates, the Council simply asserts the construction certificates must be invalid because there are no valid development consents which underpin them. The situation in relation to the construction certificates is not clear-cut given Ralan at [202] and Bunderra Holdings at [43]-[52].
A Class 1 appeal is in the nature of a merits review of the decision under appeal: see Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 at [150] and [173] and LEC Act s 39(2). The powers of the Court in a Class 1 appeal are identified in s 39 of the LEC Act. Blacktown helpfully considered the nature of the administrative review undertaken in Class 1 proceedings at [32]-[45]. That case considered whether the validity of a contributions plan in a Class 1 appeal considering the imposition of a condition requiring a s 94 contribution could be considered by a commissioner. The conclusion by Pepper J was no.
Section 8.18 gives the Court power to revoke or modify a development control order, to substitute another order in its place, to find that it has been sufficiently complied with, or to make orders "with respect to compliance" or "with respect to the development control order" as the Court thinks fit (EPA Act s 8.18(4)). As the parties identified, there is no challenge to the content of the stop work order - at issue is its underpinning legal basis. As the Applicant identified, s 22 of the LEC Act requires the Court to grant "all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party" (emphasis added). That section does not support a finding that all relevant matters necessary to resolve the issues between the parties can be considered in these Class 1 proceedings.
The circumstances underpinning the stop work order are legally complex and will require the Court to consider whether a declaration of nullity of the development consents and invalidity of the construction certificates should be made. If warranted legally and on discretionary grounds, there will be utility in making such declarations. The wide powers of the Court in Class 4 proceedings are identified in s 20(2) of the LEC Act. As the Applicant submitted, if Class 4 proceedings seeking declarations of nullity of the modified development consents are commenced by the Council, they will have to potentially overcome any statute-bar period given s 4.59 of the EPA Act (formerly s 101) and/or r 59.10 of the UCPR, the Council will bear the onus of proof of establishing its case, the rules of evidence will apply, the Court may be asked to consider whether the relevant development consents and construction certificates are void ab initio or voidable and the Court may have to consider whether to exercise its discretion to make any declarations of invalidity/nullity given the time that has elapsed and the work undertaken by the Applicant in reliance on the consents and construction certificates. Such issues are best considered in Class 4 proceedings for the reasons given by the Applicant identified in the previous sentence. Whether the construction certificates should be declared invalid in the circumstances is also best considered by a judge in Class 4 proceedings for the same reasons. Findings which may be able to be made in Class 1 proceedings will not address the legal complexity arising from the circumstances identified by the Applicant's SOFAC and no declaration of nullity or invalidity can be made in them.
The parties have referred to the competing authorities in this Court on the nature and scope of Class 1 and Class 4 proceedings. My approach in Greentree and Birdon accepted in Blacktown applies broadly in this case. Australian International Academy of Education Inc v The Hills Shire Council should be distinguished. In some Class 1 proceedings such as Savellis and Dennes, relied on by the Council, findings of whether a development consent has lapsed and cannot therefore be modified have been made. Ultimately these cases provide limited assistance as the circumstances of this matter are markedly different.
The appropriate jurisdiction of the Court to sort out the legal issues arising from these unfortunate circumstances are Class 4 proceedings for the reasons identified by the Applicant. In terms of r 14.28(1)(a) of the UCPR the Council's SOFAC in reply do not disclose a reasonable cause of action in these Class 1 proceedings.
There is a "chicken or the egg" quality to the issues that arise. The Council presumably considered at the time the modifications were issued in 2015 that it was acting lawfully. It came to a different view in 2017. Generally a change of view of the legal effect of a development consent would not enable a council to act unilaterally in issuing a stop work order based on the assumption of nullity, for the reasons I have given above. The Council's approach has considerable legal and other consequences for the Applicant because if correct she no longer has development consents which operate in rem or, potentially, valid construction certificates. The Applicant would generally expect to be legally protected in relying on the development consents as modified under the principles referred to above in [29]-[33]. An unstated consequence of the Council's approach seems to be that it is for the Applicant to approach the Court in Class 4 proceedings to seek a declaration of validity of the modified consents and the construction certificates. Hence the "chicken or the egg" issue of who should be the applicant in Class 4 proceedings as the appropriate vehicle for the issues identified. I consider the Council should be the party commencing Class 4 proceedings.
It is a matter for the Council whether it commences Class 4 proceedings. Accordingly, I intend to make the first order sought in the Applicant's notice of motion dated 15 October 2019. I will delay striking out the Council's contentions in reply in the Class 1 proceedings for two weeks to enable it to consider its position. If Class 4 proceedings are commenced, these can be heard together with the Class 1 appeal by a judge of the Court.
While the focus of this judgment is the Council's case, I note that the Applicant's SOFAC identify reliance on physical commencement of works and reliance on representations by the Council such that estoppel arises, which are also arguments more suited to Class 4 proceedings.
The Court also has power under s 31 of the LEC Act to ensure that proceedings before it are properly constituted and that is another basis for finding that Class 4 proceedings commenced by the Council are the appropriate vehicle for the resolution of the issues raised. I will not make specific orders as provided for in s 31(2)(b) and (4) at this stage unless the parties or the Court on further reflection consider these are necessary. I will list the matter before me in two weeks' time to determine what orders should be made including for the further conduct of any proceedings.

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. Decision last updated: 02 December 2019

(1999) 106 LGERA 243

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