SOLICITORS:
N/A (Applicant)
Georges River Council (Respondent)
File Number(s): 2017/103967
[2]
EX TEMPORE Judgment
The Georges River Council (the Council) has filed a notice of motion seeking to strike out the Class 1 appeal filed on 6 April 2017 because it was filed out of time, an order that the proper Applicant in the appeal is Mr Taeipo Malifa and an order that its costs of the proceedings be paid by Mr Malifa. The Applicant in the Class 1 appeal as filed is the Congregational Christian Church Samoa Parish of Sydney (the Church).
[3]
Environmental Planning and Assessment Act 1979
Section 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) specifies when Class 1 appeals can be filed as follows:
Division 8 Appeals and related matters
97 Appeal by applicant - development applications
(1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after:
(a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or
(b) the date on which that application is taken to have been determined under section 82 (1).
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Division 2 The procedures for development that needs consent
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82 Circumstances in which consent taken to have been refused
(1) A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires.
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Section 82A provides:
Division 2 The procedures for development that needs consent
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82A Review of determination
(1) If the consent authority is a council, an applicant may request the council to review a determination of the applicant's application, other than:
(a) a determination to issue or refuse to issue a complying development certificate, or
(b) a determination in respect of designated development, or
(c) a determination in respect of integrated development, or
(d) a determination made by the council under Division 4 in respect of an application by the Crown.
(2) A council must, on a request made in accordance with this section, conduct a review.
(2A) A determination cannot be reviewed:
(a) after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or
(b) after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination.
(3) (Repealed)
(3A) In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4) (c).
(4) The council may review the determination if:
(a) it has notified the request for review in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and
(b) it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be, and
(c) in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application.
(4A) As a consequence of its review, the council may confirm or change the determination.
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[4]
Chronology/evidence
The following chronology is based on the affidavit of Ms Berry Council solicitor affirmed on 3 May 2017. Attached to Ms Berry's affidavit were documents which supported her recollection of events as recorded in the text of the affidavit.
14 December 2015 Development application DA 2015/0443 (DA) lodged with the Council for a child care centre on Church premises.
25 August 2016 DA refused by Independent Hearing and Assessment Panel.
29 August 2016 Notice of determination issued to Mr Malifa.
8 December 2016 Mr Nelson Council officer advised Mr Malifa during a telephone conversation that a s 82A review application would not likely be assessed within the six month statutory timeframe.
23 December 2016 Section 82A application lodged with the Council. The application recorded the Church as applicant and was signed by Mr Malifa.
24 December 2016 The Council commenced summer shut-down period with only skeleton staff for approximately the next four weeks.
18 January 2017 The Council acknowledged receipt of s 82A application by email.
24 January 2017 Email from Council officer advising Mr Malifa that due to advertising requirements the application would not finish notification until 8 February 2017, leaving insufficient time to determine the s 82A review application within the statutory timeframe for Class 1 appeals in s 97(1). It would have no power to determine the application after this period unless an appeal was lodged in this Court.
The Council reminded Mr Malifa that his appeal rights under s 97(1) were to expire in February 2017. The Council invited Mr Malifa to withdraw the s 82A application.
30 January 2017 Email from Council officer to Mr Malifa was provided with further information in writing as to the Council's position on the legal construction of s 97 and again providing reasons for why the s 82A review application could not be determined within the statutory period.
29 March 2017 The Council advised Mr Malifa in a letter that the period for determination of the s 82A review application had expired and that a refund of the review fees would be issued.
6 April 2017 Class 1 appeal lodged.
18 April 2017 The Council wrote to Mr Malifa noting that it was of the view that the Class 1 appeal was filed in the wrong name and that the Applicant's appeal rights had lapsed under s 97(1). The Council invited Mr Malifa to discontinue proceedings without seeking any orders as to costs.
21 April 2017 Mr Malifa wrote to the Council in response to the letter of 18 April 2017.
[5]
The Council tendered an email from Ms Berry to Mr Malifa dated 10 May 2017 which became exhibit 1 in these proceedings.
[6]
Affidavit of Mr Malifa
Mr Malifa read an affidavit affirmed by him dated 12 June 2017. In his affidavit Mr Malifa deposed that he is the authorised representative of the Church in these proceedings.
Mr Malifa deposed to his and the Church's interpretation of correspondence with the Council concerning the DA and s 82A review application. Following the email of 24 January 2017 the Church noted that it did not record a decision on the review. The Church resolved to inform the Council of its concerns with the Council's construction of the EPA Act and confirm its opinion that its s 82A appeal had been lodged in time. It is the Church's opinion that the s 82A review was not determined until 29 March 2017 upon which date it approached the Council at its Rockdale office and received oral and written confirmation of the decision.
The Church sought clarification from the Court as to its appeal rights. On 22 February 2017 a member of the Court's Registry wrote to Mr Malifa quoting material available on the Court's website concerning the development appeals process and providing a link to further information on the website. Mr Malifa responded stating "I now know that I can lodge a claim at LEC within 6 months of Council's decision on our s 82A review request appeal".
In response to the letter of 18 April 2017 Mr Malifa deposed that he called Ms Berry and informed her that he would not discontinue the Class 1 appeal and that this was a matter for the Court to determine. Mr Malifa stated that Ms Berry told him that the appeal was out of time and was incompetent.
Mr Malifa deposed that the Church has frequently been reminded by the Council of the costs involved in Court proceedings. The Church is reserved in taking legal action because of these costs which if ordered would be difficult to meet. The Church does not have legal representation because of the cost involved.
[7]
Proper Applicant
As the Council submitted, the proper Applicant in this appeal is Mr Malifa. He was the applicant for development consent on the relevant application form attached to the affidavit of Ms Berry and the recipient of the notice of refusal of development consent. The Church consented to the application as the owner of the land. It was not identified as the applicant. That the Church is the owner and occupier of the land does not render it the applicant for the purposes of the EPA Act. Clause 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) specifies that any person can make a development application with the written consent of the owner of the land to which the development relates. The distinction between applicant and owner is confirmed in Sch 1 cl 1(i) of the EPA Regulation which requires written evidence of the owner's consent on the application form for development consent.
Mr Malifa's explanation that he did not put the name of the Church on the form because it was too long for the box provided does not alter the significance of the person who makes an application for development consent gaining important legal rights of appeal under the EPA Act. That two members of the Church have written to the Court on letterhead of the Church stating that Mr Malifa is authorised to commence the Class 1 appeal on the Church's behalf after the commencement of the Class 1 appeal is irrelevant to the question of whether he is the proper Applicant in this appeal.
[8]
Class 1 appeal out of time
Mr Malifa submitted that the s 82A review application was filed within six months of the refusal of development consent and the time for filing a Class 1 appeal ran until the s 82A review was determined. The letter from the Council dated 29 March 2017 was considered by him to be a determination of the s 82A review. I note that letter states that the Council was not able to determine the s 82A review as advised in emails sent in January 2017. Mr Malifa submitted that the words "application or review" in s 97(1) together with s 82(2A)(2) render his construction correct.
I agree with the Council's construction of the time limit for Class 1 appeals under s 97(1) of the EPA Act. No specific time limit to determine a s 82A review is specified in the EPA Act. The lodging of a s 82A review within six months of the refusal of a Class 1 appeal does not extend the time for lodging an appeal under s 97(1). That construction is supported by my decision in Lakeman v Ku-ring-gai Council [2013] NSWLEC 14 at [24]-[35] which considered the precise question arising in this motion after the introduction of s 82A(2A)(2) imposing a duty on a council to consider a request for a review in 2011. Further a decision not to determine the s 82A review is not a confirmation or change of the original determination. I was not advised by the Council of any change in the statutory regime I am considering since Lakeman. I adopt my finding in Lakeman at [24]-[35] as a whole.
Lloyd J in Hainbury Pty Ltd v Campbelltown City Council [2007] NSWLEC 713 at [9]-[12] considered s 82(2A) before s 82(2A)(2) was introduced. My approach in Lakeman is supported by Lloyd J's findings albeit the statutory context was not identical. I note for completeness that the time period specified in s 97(1) in Hainbury was 12 months. Section 97(1) was amended in 2011 by the Planning Appeals Legislation Amendment Act 2010 to specify six months, see Sch 1[18].
That the applicants in Lakeman and Hainbury were businesses operating for profit unlike a not for profit church is not a basis for distinguishing these decisions in relation to statutory construction issues. The written advice from the Court's Registry did not confirm Mr Malifa's construction of ss 97(1) and 82A.
The Applicant has not commenced this Class 1 appeal within the statutory limitation specified in s 97(1). The Court does not have jurisdiction to determine the Class 1 appeal and it must be dismissed. No issue of due process arises in these circumstances in that I do not consider I have any discretion to allow the Class 1 appeal on another basis. Whether the Applicant has a meritorious merit appeal is irrelevant to my consideration here of whether the Court has jurisdiction.
[9]
Costs
The Council seeks its costs of the proceedings and this motion. I agree that the presumptive rule in Class 1 appeals that each party pay its costs of the proceedings should not apply in the circumstances here. As identified in r 3.7(2) of the Land and Environment Court Rules 2007 costs should only be awarded if it is fair and reasonable to do so. Subrule (3) identifies circumstances where the Court may consider costs should be awarded. In subrule 3(a) one example is the determination of a central issue which is determinative of the proceedings. I have held that the Class 1 appeal is statute barred, a central issue which is determinative.
It is also useful to consider the circumstances leading up to the Council's motion. Mr Malifa was given ample notice in two emails sent by the Council in January 2017 that the s 82A review could not be determined in time and advised that a Class 1 appeal against the refusal of the DA had to be lodged by the end of February 2017. When the Class 1 appeal was lodged on 16 April 2017 Mr Malifa had been told in a letter dated 29 March 2017 from the Council of its view of how the limitation period operated. The Council wrote again after the Class 1 appeal was commenced in a letter dated 18 April 2017 giving Mr Malifa a further opportunity to discontinue the proceedings with no order as to costs. In an email dated 10 May 2017 (exhibit 1) Mr Malifa was told that the Council intended to rely on Lakeman in the hearing of this motion. Mr Malifa has been given a great deal of advice by the Council which he has not heeded.
Mr Malifa submitted to the Court that the Church had determined not to consider emails from the Council only letters sent on letterhead. Mr Malifa supplied his email address in the DA form when this was lodged with the Council. Given that his affidavit and Ms Berry's affidavit provide numerous examples of Mr Malifa responding to emails from the Council that does not in fact appear to occur in practice. Common knowledge suggests that sending emails is part and parcel of modern business practice in local councils. Applicants ignore council emails on matters of importance at their peril.
Mr Malifa submitted from the bar table that the Church has limited means to pay a costs order. I have no specific evidence in relation to the Church's or Mr Malifa's financial positions. Given that costs are compensatory, not punitive, a limited ability to pay costs, if it exists, is not a reason not to award costs.
The Council has had to incur the expense of filing and arguing the notice of motion today and in the proceedings more generally. It is fair and reasonable in these circumstances that Mr Malifa pay the Council's costs. These have been quantified as $3,726.00 which includes filing costs of $426.00. Professional costs of in-house solicitors are claimable per Council of the City of Sydney v Galanis [2012] NSWLEC 263 and Coshott v Spencer [2017] NSWCA 118. The parties have agreed costs of $1,200 are payable.
[10]
Orders
The Court makes the following orders:
1. The proper Applicant to the appeal is Mr Taeipo Malifa in his personal capacity.
2. The Class 1 appeal filed on 6 April 2017 is dismissed.
3. The Applicant Mr Malifa is to pay the Council's costs of $1,200 within three months of today's date.
[11]
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: 20 February 2019
Parties
Applicant/Plaintiff:
Congregational Christian Church Samoa Parish of Sydney