Conway v Leeroy Property Investments Pty Ltd

The strike out motion

1. On 5 December 2022, the first respondent filed a notice of motion. As at the hearing before me on 30 May 2023, the first respondent continued to seek the following orders (the strike out motion): 1. An order that the Summons (Judicial Review) filed on 13 September 2022 (Summons) be struck out or summarily dismissed since the proceedings were commenced contrary to rule 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) and leave under rule 59.10(2) has not been sought or obtained. [1] 2. An order that: (a) The prayers for relief at paragraphs [3] and [4] of the Summons be struck out as seeking relief that is not within the jurisdiction of the Court to grant; or (b) The prayer for relief at paragraph [3] be summarily dismissed as failing to disclose a cause of action or because the claim for that relief is doomed to fail and/or so lacking in substance so as to be frivolous and vexatious; and (c) The prayer for relief at paragraph [4] be summarily dismissed as no steps have been taken under s 88K(2)(c) of the Conveyancing Act 1919 (NSW) making the proceedings frivolous or vexatious. 3. An order that paragraph 1(b)(vi) of the Grounds be: (a) Struck out as based upon a claim over which the Court does not have jurisdiction; or (b) Summarily dismissed for the reasons put under [2(b)] above. [2] 4. Costs. 5. Any further or other order.

The transfer motion

1. On 3 February 2023, the applicant filed a notice of motion seeking the following order (the transfer motion): 1. An order pursuant to s 149B of the Civil Procedure Act 2005 that these proceedings be transferred to the Supreme Court of New South Wales.

The initial hearing of the notices of motion on 14 April 2023

1. At the initial hearing of the two motions on 14 April 2023, the parties agreed that the applicant's written submissions filed 6 March 2023 concerning the Court's jurisdiction raised a matter arising under the Constitution or involving its interpretation. That matter was submitted by the applicant to be whether this Court exercises an "exclusive jurisdiction" in Class 4 judicial review matters. Accordingly, I made a direction that the applicant give notices pursuant to s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act) to the Attorneys-General of the Commonwealth and of the States.
2. At the hearing on 14 April 2023, the parties agreed that it would not be an efficient use of the time of the Court and of the parties for the Court on that day to "hear evidence and argument concerning matters severable" [3] from the matters arising under the Constitution or involving its interpretation, namely the issue then pressed by the first respondent under r 59.10(1) of the UCPR in its strike out motion in relation to whether the proceedings had been commenced out of time. Accordingly, I made the following orders: 1. The matter is listed before me on 30 May 2023 for hearing of the notices of motion filed 5 December 2022 by the first respondent and 3 February 2023 by the applicant. 2. Seven days prior to the hearing, both parties are to file and serve evidence and submissions relating to any notices served by the applicant under s 78B of the Judiciary Act 1903 (Cth) and any responses to those notices, and in relation to the question of leave under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW). 3. The question of costs of today's hearing is reserved.
3. On 5 May 2023, the applicant gave notices to the Attorneys-General of the Commonwealth and of the States pursuant to s 78B of the Judiciary Act. The terms of the notices and the responses to them are set out below at [18] to [20].

The hearing on 30 May 2023

1. On 30 May 2023, the matter returned before me part heard. On that occasion, Mr Seymour, counsel for the first respondent, raised a potential further constitutional issue. Mr Seymour referred to the party information on the final page of the summons indicating that the applicant resides in New South Wales, whilst the registered address of the corporate first respondent is in Queensland. Accordingly, Mr Seymour said that the matter is between parties of different States so as to engage federal jurisdiction and both ss 39(2) and 79 of the Judiciary Act.
2. At the conclusion of the hearing on 30 May 2023, I made the following orders: 1. By 7 June 2023, the first respondent is to file and serve written submissions, no longer than 10 pages in length, on: (a) any further constitutional issue which may arise in the proceedings, and as to the necessity for the service of further notices under s 78B of the Judiciary Act 1903; (b) any further circumstances relating to the issue of any transfer of the proceedings to the Supreme Court; (c) if the Court is disposed to make an order for the transfer of the proceedings, an appropriate form of order for transfer; and (d) the issues remaining for the Court: (i) if it determines to transfer the proceedings; (ii) if it determines not to transfer the proceedings. 2. By 16 June 2023, the applicant is to file and serve any submissions, no longer than 10 pages in length, in response, addressing the issues set out in Order 1(a) to (d) above. 3. By 20 June 2023, the first respondent is to file and serve any submissions in reply, no longer than 10 pages in length, and if it arises, affidavits relating to the service of notices under s 78B of the Judiciary Act 1903 and any responses received to those notices. 4. Liberty to apply at 3 days' notice. The Court notes that all remaining issues on the motions filed 5 December 2022 and 3 February 2023, and the submissions to be filed pursuant to Orders 1 to 3 above, except as to costs, will be determined on the papers not before 22 June 2023.

Notices pursuant to s 78B of the Judiciary Act

1. Section 78B of the Judiciary Act provides relevantly as follows: 78B Notice to Attorneys‑General (1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court. (2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending: (a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit; (b) may direct a party to give notice in accordance with that subsection; and (c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. …
2. On 5 May 2023, the applicant served notices pursuant to s 78B of the Judiciary Act on the Attorneys-General of the Commonwealth and the States (the first s 78B notices) in the following terms: Nature of Constitutional Matter The Applicant apprehends that the matter as framed by the Notices of Motion filed on 5 December 2022 and 3 February 2022 in the proceeding give rise to a question of whether s 71 of the Land and Environment Court Act 1979 (NSW) (LEC Act) in so far as the section purports to deprive the Supreme Court of New South Wales of its supervisory jurisdiction to hear and determine Class 4 judicial review proceedings for jurisdictional error is beyond the legislative power of the State of New South Wales and ultra vires. (the first constitutional consideration).
3. The responses to the first s 78B notices were to the effect that none of the Attorneys-General of the Commonwealth or the States intended to intervene in the proceedings.
4. The response from the Crown Solicitor on behalf of the Attorney General for New South Wales dated 25 May 2023 indicated that while the Attorney General had decided not to intervene in the proceedings, the position was understood to be as follows: The Attorney General understands the position of both parties to be that the power to transfer the present proceedings under s. 149B of the Civil Procedure Act 2005 is available, notwithstanding the terms of s. 71 of the Land and Environment Court Act 1979, and that the outstanding dispute is confined to the appropriateness of its exercise in the immediate case. That position is consistent with the holding of Robson J in Connor v Smith Hire Service (Casino) Pty Ltd [2017] NSWLEC 7 at [17] concerning the operation of s. 149E of the Civil Procedure Act. In these circumstances, the Attorney General is of the view that there is no issue concerning the constitutional validity of s. 71 that needs to be considered in the present matter.
5. On 7 June 2023, the first respondent served notices pursuant to s 78B of the Judiciary Act on the Attorneys-General of the Commonwealth and the States (the second s 78B notices) in relation to a second constitutional matter said by the first respondent to arise in the proceedings in the following terms: Nature of Constitutional Matter The First Respondent apprehends that the matter as framed by the Notices of Motion filed on 5 December 2022 and 3 February 2023 in the proceeding give rise to an additional question or questions regarding the interpretation of the Constitution. … The question now arising is whether the proceedings involve: 1. A dispute between residents of different States within the meaning of s 75(iv) of the Constitution if the Applicant, a natural person, resides in New South Wales and the First Respondent, a corporation, has its registered office in Queensland; and 2. If, either because: (a) the matter does involve a dispute between residents of different States, or (b) once the proceedings involve a question involving the Constitution, or its interpretation, under a procedural motion, is the jurisdiction of the Land and Environment Court thereby to be treated as enlarged to any extent necessary to determine all substantive issues arising in the "matter". (the second constitutional consideration).
6. The responses of the Attorneys-General of the Commonwealth and the States to the second s 78B notices were to the effect that none of the Attorneys-General of the States intended to intervene in the proceedings.
7. On behalf of the Commonwealth Attorney-General, the Australian Government Solicitor responded on 13 June 2023, stating that they would write to the first respondent again when a decision had been made on the question of intervention. As at the date of this decision, the first respondent has not filed evidence in relation to any further response received from the Commonwealth Attorney-General.
8. In submissions filed on 7 June 2023, the first respondent accepted that the proceedings do not involve a federal law or constitutional matter "contrary to what was said for the [f]irst [r]espondent at the listing on 30 May 2023". Both active parties agreed that "corporations are not considered 'residents' of a State for the purpose of requiring or engaging federal diversity jurisdiction". [4] Accordingly, the proceedings do not require or invoke federal jurisdiction, and "no constitutional issue arises therefore by reason of the registered address of the [f]irst [r]espondent corporation". The second constitutional consideration does not arise to be determined.

Issues for determination on the notices of motion

1. The issues identified by the first respondent in its strike out motion filed 5 December 2022 and its written submissions filed 17 February 2023 are as follows: 1. Whether leave is required by the applicant pursuant to r 59.10(2) of the UCPR to commence the proceedings out of time (the leave issue). 2. Whether, as sought by the applicant, the whole of the proceedings should be transferred to the Supreme Court pursuant to s 149B of the Civil Procedure Act 2005 (NSW) (CPA) (the transfer issue). In the course of determining the transfer issue: 1. Whether the first constitutional consideration contended for by the applicant arises, expressed by the first respondent to be "whether the word 'exclusive' as it appears in s 71 of the Land and Environment Court Act 1979 (NSW) (LEC Act), means what it says or must be read down so as not to purport to exclude any supervisory jurisdiction of the Supreme Court". 2. If the Court considers that a transfer order ought be made, the form and content of such an order, and whether any residual issues would need to be determined prior to that order being made. 1. If the proceedings are not transferred, whether parts of the applicant's summons filed 13 September 2022 and points of claim filed 23 November 2022 ought be struck out pursuant to rr 14.28 or 12.11 of the UCPR. In the course of determining this issue (the strike out issue): 1. Whether the second constitutional consideration (contended for by the first respondent) arises concerning the status of the parties as "resident" in different States and concerning the status of the matter given the first constitutional consideration. 2. Whether, depending on the status of the "matter", the resolution of the strike out motion might depend on the scope and effect of the principle of a "pendent" jurisdiction arising for a federal or constitutional "matter", compared with the operation and scope of s 16(1A) of the LEC Act (the pendent jurisdiction question).
2. At the hearing on 30 May 2023, the first respondent no longer pressed the leave issue, although both parties made submissions in relation to it. I observe that the parties' submissions in relation to both the transfer issue and the strike out issue ultimately concern the Court's ancillary jurisdiction in s 16(1A) of the LEC Act. My consideration of the transfer issue is set out below at [41] to [77], and my consideration of the strike out issue is set out below at [78] to [96]. I also observe that in relation to the transfer issue, as framed by the first respondent, the adjective "exclusive" does not appear in s 71 of the LEC Act. Also, ultimately, as set out above at [24], the second constitutional consideration does not arise for determination.

Outcome

1. I have determined the outcome here as follows. 1. The applicant does not require leave pursuant to r 59.10(2) of the UCPR to commence the proceedings out of time. If I be wrong, I give leave to the applicant to commence the proceedings out of time (a course not opposed by the first respondent). 2. Neither of the s 78B notices raises a matter arising under the Constitution or involving its interpretation. 3. The Court has no power, pursuant to s 40(1) of the LEC Act, in Class 4 proceedings, to impose an implied easement of the kind sought by the applicant. Nor does it have jurisdiction pursuant to s 16(1A) of the Act to hear and dispose of matters in relation to an implied easement in the terms sought by the applicant. 4. In the exercise of the Court's discretion, to avoid a bifurcation of proceedings between the judicial review claims in prayers 1 and 2 of the summons and the easement relief sought in prayers 3 and 4 of the summons, and to facilitate the just, quick and cheap resolution of the issues in the proceedings, [5] it is appropriate for the entirety of the proceedings to be heard in the Supreme Court. I will order, pursuant to s 149B of the CPA, that the proceedings be transferred to the Supreme Court.

Relevant statutory provisions

1. Although the leave issue was not pressed by the first respondent at the hearing on 30 May 2023, both active parties made submissions in relation to the time for commencing proceedings. Rule 59.10(1) to (2) of the UCPR provides in relation to leave to proceed out of time: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).
2. In relation to the transfer of proceedings between this Court and the Supreme Court, s 149B of the CPA provides: 149B Transfer of proceedings between Supreme Court and Land and Environment Court (1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court. (2) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that - (a) there are related proceedings pending in the other court, and (b) it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings. (3) No appeal lies against a decision of the transferor court to make, or not to make, an order under this section.
3. In relation to proceedings which may not be commenced or entertained in the Supreme Court, s 71 of the LEC Act provides: 71 Proceedings in Supreme Court (1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court. (2) The jurisdiction conferred on the Court in respect of proceedings referred to in section 20(1)(e) is not limited by any provision of the Civil Procedure Act 2005 or the uniform rules under that Act.
4. Section 58(1) of the LEC Act provides in relation to appeals from orders or decisions of the Court in Class 4 proceedings: 58 Class 4 proceedings - appeals (1) Where a party to proceedings in Class 4 of the Court's jurisdiction is dissatisfied with an order or decision (including an interlocutory order or decision) of the Court, the party may appeal to the Supreme Court against the order or decision.
5. Section 20 of the LEC Act provides in relation to the Court's jurisdiction in Class 4 proceedings: 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 - … (e) proceedings referred to in subsection (2). (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. (3) For the purposes of subsection (2), a planning or environmental law is - (a) any of the following Acts or provisions - … Environmental Planning and Assessment Act 1979, (b) any statutory instrument made or having effect thereunder or made for the purposes thereof, including any deemed environmental planning instrument within the meaning of the Environmental Planning and Assessment Act 1979, … as respectively in force at any time, whether before, on or after 1 September 1980.
6. In relation to the jurisdiction of the Court, s 16 of the LEC Act provides: 16 Jurisdiction of the Court generally (1) The Court shall have the jurisdiction vested in it by or under this or any other Act. (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. (2) For the purposes of this Act, the jurisdiction of the Court is divided into 8 classes, as provided in this Division.
7. In relation to the additional powers of the Court in relation to the provision of easements, s 40 of the LEC Act provides: 40 Additional powers of Court - provision of easements (1) This section applies if - (a) the Court has determined to grant or modify a development consent pursuant to proceedings on an appeal under the Environmental Planning and Assessment Act 1979, or (b) proceedings on an appeal under the Environmental Planning and Assessment Act 1979 with respect to the granting or modification of a development consent are pending before the Court (whether constituted by a Judge or by one or more Commissioners). (2) The appellant may make an application to the Court for an order imposing an easement over land. (3) The parties to an application under this section include the owner of the land to be burdened by the easement, and each other person having an estate or interest in the land, as evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900. (4) In dealing with an application under this section, the Court may exercise the jurisdiction of the Supreme Court under section 88K of the Conveyancing Act 1919 and, in that event, section 88K of the Conveyancing Act 1919 applies to the Court's exercise of that jurisdiction in the same way as it applies to the exercise of that jurisdiction by the Supreme Court.

Whether leave pursuant to r 59.10(2) UCPR is required to commence proceedings out of time (the leave issue)

1. Although the first respondent, at the hearing on 30 May 2023, did not press the issue of whether leave should be granted to the applicant pursuant to r 59.10(2) of the UCPR, to commence the proceedings out of time, the parties made submissions in relation to the correct "date of the decision" within the meaning of r 59.10(1), and whether leave to commence the proceedings is required in any event.
2. The applicant filed the summons on 13 September 2022. The notice of determination, dated 14 June 2022, stated that the development application was "determined" on 10 June 2022, but the development consent was to "operate" from 14 June 2022. The first respondent submitted that the date of decision of the development application was 10 June 2022, and that leave is required to commence the Class 4 proceedings out of time. The applicant submitted that the date of decision was 14 June 2022, and that leave was not required.
3. In relation to the leave issue, the first respondent relied on the decision of Tobias JA in Pselletes v Randwick City Council [6] and the authorities cited therein at [44] to [47]. In Pselletes, Tobias JA held at [47] (applying the former numbering of the EPA Act) that "it was the determination of the consent authority under s 80(1)(a) to grant consent to a development application which constitutes the development consent and that the Notice of Determination issued pursuant to s 81(1) does not itself constitute that consent but is merely evidence of it". Accordingly, Council's determination on 10 June 2022 constituted the development consent, rather than the notice of determination issued on 14 June 2022.
4. In relation to the leave issue, the applicant submitted that the function of an order in the nature of certiorari as sought in the summons is to "remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which had, at the date of the order, a discernible or apparent legal effect upon rights", citing the plurality in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd at [28]. [7] The applicant submitted that certiorari quashes or sets aside the exercise of power that has legal effect, and that such legal effect is relevantly the "decision" for the purpose of r 59.10(1) of the UCPR. This was submitted to be further supported by r 59.10(5), which provides that "[t]his rule does not apply to any proceedings in which the setting aside of a decision is not required".
5. The applicant also relied on s 4.20(1) of the EPA Act which provides that "[a] development consent has effect on and from the date it is registered on the NSW planning portal", with the exception (not presently relevant) of "designated development" in subsection (2). In relation to the question of registration on the NSW planning portal, the applicant relied on the affidavit of Mr Farshad Amirbeaggi, solicitor for the applicant, affirmed 23 May 2021 to which was exhibited an extract from the "Development Application Tracker & Property Enquiry" on the NSW planning portal which identified the development consent as having been determined on 14 June 2022. Accordingly, the development consent had legal effect on 14 June 2022, and that this was the "date of the decision" within the meaning of r 59.10(1) of the UCPR.
6. In relation to the leave issue (not ultimately pressed by the respondent), I find that although the development consent was determined by Council on 10 June 2022, the consent did not have legal effect until 14 June 2022 when it was registered on the NSW planning portal: s 4.20(1) of the EPA Act. It follows that the "date of the decision" was 14 June 2022, that the applicant filed the summons within time, and that an order granting leave pursuant to r 59.10(2) of the UCPR is not required. If I be wrong, I give leave to the applicant to commence the proceedings out of time.

Transfer of the proceedings to the Supreme Court (the transfer issue)

1. I next consider the transfer issue, and the first constitutional consideration said by the applicant to be raised by it.

The first respondent's submissions in relation to transfer

1. In relation to whether I should order the proceedings be transferred to the Supreme Court pursuant to s 149B of the CPA, the first respondent submitted that the "conceptual divide" at the heart of the applicant's claim was "immediately obvious" in the relief sought in the summons filed on 13 September 2022. In the summons (reproduced above at [2]) the applicant seeks the following relief: 1. in prayers 1 and 2 relief in relation to the development consent (the planning claim); and 2. in prayers 3 and 4 relief in relation to "the alleged existence of an implied easement or, failing that, an order for the imposition of an easement under s 88K of the Conveyancing Act 1919" (the easement claim).
2. In relation to the planning claim, the first respondent submitted that the challenge to the validity of the development consent is properly within the jurisdiction of this Court, and inappropriate to be transferred to the Supreme Court. Had the claim been commenced in the Supreme Court, it was "inevitable" that it would have been transferred to this Court pursuant to s 72(1) of the LEC Act. [8]
3. In relation to the easement claim, the first respondent submitted that the "problem" with the relief sought is that they are "clearly not matters arising under a planning and environmental law for the purposes of coming within the statutory grant of jurisdiction in ss 20(1)(e) and 20(3) of the LEC Act". Those matters, the first respondent submitted, are not ancillary to the grounds of challenge to the development consent for the purposes of s 16(1A) of the LEC Act; and the claim in these Class 4 proceedings to impose an easement could not rely on s 40(2) of the LEC Act as the pre-conditions in s 40(1) in relation to the Court's jurisdiction are not fulfilled. Accordingly, the appropriate order in relation to the easement claim is that that the prayers for that relief and the corresponding paragraphs of the applicant's points of claim filed on 23 November 2022 be struck out.

The applicant's submissions in relation to transfer

1. In relation to the transfer issue, the applicant submitted that while "the transfer is not necessary to confer upon the Supreme Court the necessary power" to grant the relief sought in the summons, given the arguments pressed by the first respondent "regarding want of jurisdiction", a transfer of the entirety of the proceedings to the Supreme Court would be "the better discretionary choice over the bifurcation for which the [f]irst [r]espondent contends by its prayers for strike out".
2. The applicant submitted that the course proposed by the first respondent would have the practical effect of splitting the proceedings, a result which would be against the just, quick and cheap resolution of the real issues in the proceedings. [9]

The Court's power to transfer the proceedings to the Supreme Court

1. It is plainly correct that the application for judicial review of the development consent and the relief sought in the planning claim bring the proceedings within the jurisdiction of this Court by reason of s 20(1)(e) and (2)(c) of the LEC Act. It is also undoubtedly correct that by ss 5(1), 7, 8 and 9(2) of the LEC Act, this Court is constituted as a superior court of record, composed of judges with tenure who have the same rank, title, status and precedence as a judge of the Supreme Court of NSW. By ss 20(1)(e) and 20(2)(c) of the LEC Act, this Court is endowed with the same constitutionally entrenched supervisory jurisdiction as the Supreme Court to review administrative decisions and subordinate legislation made under specified planning or environmental legislation.
2. However, the applicant submitted that s 149B of the CPA does not permit the transfer of part of the proceedings only, adopting "a plain language approach" to the construction of the provision.
3. In turn, the first respondent submitted that (emphasis in original): "while there is no question of the power of the Court to order transfer of the proceedings to the Supreme Court under s 149B of the [CPA], it should not do so as a matter of discretion."

The first respondent's submissions in relation to the exclusive jurisdiction of this Court

1. In relation to transfer, the first respondent submitted that "Parliament has determined that the Land and Environment Court should have an exclusive jurisdiction over matters involving the enforcement of any right or duty, or concerning declarations involving, 'planning and environmental' laws". [10] Further, that "Parliament expressly stated that this exclusivity is not "limited" by any provision of the [CPA] or the [UCPR]". [11] The transfer of the proceedings would involve the Supreme Court deciding questions that Parliament has determined ought be heard and determined in this Court. That power, the firest respondent submitted, "should not be exercised in a manner that would detract from the letter and the spirit of ss 71(1) and (2) of the LEC Act".
2. Accordingly, the first respondent submitted, using the description of "jurisdiction" provided by Leeming (extracurially), [12] it is this Court that has the "authority to decide" any question arising under planning and environmental laws, including under the EPA Act. [13] Accordingly, "despite the pragmatic principles animating the duty to run proceedings on efficiently", [14] the Court's "higher duty is fidelity to the Parliamentary decision regarding the right forum for hearing and determination of questions arising under planning and environmental laws." The express statutory language in s 71(2) of the LEC Act was submitted to reinforce what would follow from establishing a "hierarchy" [15] in the provisions "as between s 71(1) of the LEC Act and a power such as in Pt 44 of the UCPR (i.e. for transfer)."

First constitutional consideration: s 71(1) of the LEC Act, and the supervisory jurisdiction of the Supreme Court

1. In her submissions in relation to the constitutional issue raised in the first s 78B notices concerning s 71 of the LEC Act and the supervisory jurisdiction of the Supreme Court, the applicant said that the following circumstances "give rise to the relevant 'matter' the subject of the proceedings for which the Court's jurisdiction is engaged".
2. First, the applicant seeks relief on grounds related to whether an implied easement arises, and whether any such easement is enforceable against the first respondent. The answer to that question was submitted to depend on whether the circumstances are such that there is a personal equity capable of being enforced against the first respondent. The conduct of the first respondent alleged to give rise to a personal equity which would defeat the indefeasibility preserved by s 42 of the Real Property Act 1900 (NSW) was its "unconscionable departure from the common intention that the implied covenant would continue to burden the adjoining Lots". The applicant submitted that "the terms of the [d]evelopment [a]pplication and the ensuing [d]evelopment [c]onsent constitute this unconscionable departure from the common intention". Further, having sought the declaration of an implied easement in the summons, the applicant seeks to "facilitate the reasonable use of land while ensuring that just compensation be paid for any erosion of property rights by the grant of an easement pursuant to s 88K of the Conveyancing Act".
3. Second, the applicant submitted that the "grant of jurisdiction" to this Court, together with the fact that the Court is "endowed with the necessary institutional independence and impartiality," means that the Court is a "court of a State" within the meaning of s 39(2) of the Judiciary Act and s 77(iii) of the Constitution, [16] and may exercise the judicial power of the Commonwealth. The applicant relied on the analysis of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Kirk v Industrial Court of New South Wales (Kirk) [17] at [96] to [100] (footnotes omitted): 96. In considering State legislation, it is necessary to take account of the requirement of Ch III of the Constitution that there be a body fitting the description "the Supreme Court of a State", and the constitutional corollary that "it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description". … 98. The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, "with such exceptions and subject to such regulations as the Parliament prescribes", s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the "Federal Supreme Court" in which s 71 of the Constitution vests the judicial power of the Commonwealth. … 100. This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.
4. Third, the applicant referred to s 71(1) of the LEC Act which provides that proceedings of the kind referred to in s 20(1)(e) of the LEC Act may not be commenced or entertained in the Supreme Court. The combined effect of these statutory provisions, the applicant submitted, is to "invest this Court with the supervisory jurisdiction of the Supreme Court in relation to specified matters and to redistribute work from the Supreme Court to this Court," relevantly, Class 4 judicial review proceedings. That is "the usual distribution of work across the two courts," unless this Court is satisfied in relation to Class 4 proceedings that it is more appropriate for the proceedings to be heard in the Supreme Court. Here, this "state of satisfaction", it was submitted, warrants the transfer of the proceedings to the Supreme Court pursuant to s 149B of the CPA.
5. It follows, the applicant submitted, that "the supervisory jurisdiction of the Supreme Court is distributed between the two courts depending upon the enactment under which the administrative decision was made. It in no way works to deprive or divest the Supreme Court of its original supervisory jurisdiction conferred by the Constitution at Federation". Equally, the applicant said that s 71 of the LEC Act "in no way operates to endow an exclusive jurisdiction on this Court to make a declaration of right as to the validity of a consent to use land" (emphasis added), relying on the decision of the Court of Appeal in National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (Perisher). [18]
6. In relation to the constitutional issue raised in the first s 78B notices, the first respondent said that the supervisory jurisdiction of the Supreme Court is vested by the authority of s 69 of the Supreme Court Act 1970 (NSW), and that nothing about the grant of supervisory jurisdiction in relation to State matters depends on federal jurisdiction which is the subject matter of s 77(iii) of the Constitution, or in relation to which s 39(2) of the Judiciary Act might invest this Court (or the Supreme Court) with federal jurisdiction in some matters, but which is not needed in this case, there not being any "matter" arising under s 75 of the Constitution.
7. Further, the first respondent submitted that "it is clearly within the legislative competence of Parliament to create an exclusive jurisdiction for a parallel superior court", and that the applicant's submissions in relation to a supervisory jurisdiction over environmental and planning laws being shared, rather than exclusive, was contrary to the text of s 71 of the LEC Act and the reasons of Leeming JA in Minister for Local Government v Blue Mountains City Council. [19] There his Honour said at [67] to [68]: 67. …I see no way of construing s 71 other than as preventing any substantive exercise of jurisdiction in relation to the proceedings to which it applies. As much is confirmed by the opening words of s 20(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…" 68. Those words are consistent with no position other than that the jurisdiction of the Supreme Court to hear and dispose of a certain category of proceedings is excluded by the operation of s 71. In any event, that was what was held in LDF Enterprise Pty Ltd v New South Wales, which in many respects resembled the present case, in which urgent interlocutory relief was sought from the Common Law Division of the Supreme Court notwithstanding the proceedings fell within s 20 of the Land and Environment Court Act.
8. The first respondent submitted that the only constitutional impediment to "this plenary legislative power being vested in State courts" is that "the constitutionally mandated structure of appellate review must be maintained", relying on Kirk at [98]. This is so that no court is an "island", [20] and that potential repositories of federal judicial power maintain the powers and functions of a properly identifiable Chapter III court, citing Kable v Director of Public Prosecutions (NSW). [21]

Conclusion in relation to the first constitutional consideration

1. I find, as submitted by the first respondent, that no constitutional principle is infringed by s 71 of the LEC Act. The effect of s 71 is to direct a person making a claim under a planning or environmental law to one of two parallel superior Courts of record, [22] each having its place within the system of appellate review mandated by the Constitution.
2. Ultimately, the applicant's approach to the first constitutional consideration falls into the same "conceptual confusion" identified by Basten JA in A v Independent Commission Against Corruption. [23] There, his Honour held (in a different context in relation to whether the implied freedom of political communication operated as a "mandatory consideration" in deciding whether to issue a summons) that: … there [was] an element of conceptual confusion in the suggestion that the constitutional limit on the scope of a power is a factor which must be taken into account by the authority in the course of exercising the power. The reason why the authority does not have the power cannot sensibly be described as a condition of its exercise. At least that is so where the jurisdictional limitation does not depend on the state of satisfaction of the decision-maker. Here, likewise, the applicant is seeking to invoke a constitutional principle in relation to the exercise of a discretion. Were a constitutional provision or implication infringed by s 71 of the LEC Act, the consequence would be that the provision would be invalid. However, the applicant does not contend that s 71 is invalid. The Court has had some difficulty understanding how recourse to constitutional principle could assist the applicant here.
3. I also consider the first respondent's further submissions filed on 7 June 2023 in relation to the first constitutional consideration to be misplaced. The applicant is not seeking to impugn the exercise of this Court's discretion by raising the matters addressed in Kirk. Rather, she seeks to refute the first respondent's submission that the Supreme Court cannot, despite s 149B of the CPA, exercise jurisdiction to hear and determine her judicial review claim. The applicant's submission, as I understand it, is that s 71 of the LEC Act is valid insofar as it does not deprive the Supreme Court of the decision making authority of a body fitting the description "the Supreme Court of a State" to provide relief in respect of decisions of administrative decision-making bodies for jurisdictional error.
4. As noted above at [20], the Attorney General for NSW responded to the s 78B notice given to him by the applicant, stating that there is no issue concerning the constitutional validity of s 71 that requires consideration in these proceedings. The Attorney General referred to the decision of Robson J in Connor v Smith Hire Service (Casino) Pty Ltd (Connor). [24] That case concerned Class 4 proceedings in which relief was sought under the EPA Act, as well as relief in tort for trespass to land, nuisance and negligence. The applicants in that case submitted that the Supreme Court could not hear the claims under ss 123 and 124 the EPA Act by reason of s 71 of the LEC Act. His Honour rejected that submission, and held as follows at [17]: … Whilst s 71 of the LEC Act does vest exclusive jurisdiction of the EPA Claims in this Court, it is clear that s 149E of the CP Act allows this Court to transfer that jurisdiction to the Supreme Court. With respect to the applicants, s 149E of the CP Act must be read in this way so as to give effect to the provision. Division 2A of the CP Act clearly envisages that proceedings may be transferred between this Court and the Supreme Court, and it follows that jurisdiction accordingly must flow.
5. Section 149E of the CPA provides that upon transfer of proceedings pursuant to s 149B, "[t]he transferee court has, and may exercise, all of the jurisdiction of the transferor court in relation to any proceedings to which a transfer order relates, including jurisdiction to determine any question arising in any such proceedings" (emphasis added).
6. Therefore, accepting that s 71 of the LEC Act vests exclusive jurisdiction in this Court in relation to the applicant's planning claim under s 20(1)(e) of the LEC Act, s 149E of the CPA operates to allow this Court to transfer the proceedings to the Supreme Court, and the Supreme Court to exercise all of the jurisdiction of this Court in relation to that claim.
7. No question arises here in relation to the validity of s 71. Nor does any constitutional implication arise such as to "prohibit" an exercise of State legislative power to establish a superior court with the function of judicial review over State executive actions, provided only that that court is within the system of constitutionally mandated appellate review provided for in s 58 of the LEC Act.

Discretion to transfer the proceedings to the Supreme Court

1. Having concluded that there is no Constitutional impediment to the transfer of the whole of the proceedings to the Supreme Court, I now consider whether the Court should in the exercise of its discretion pursuant to s 149B of the CPA order a transfer of the proceedings.
2. In relation to the Court's discretion, the applicant referred to J K Williams Staff Pty Ltd v Sydney Water Corporation (J K Williams), [25] where Robb J at [51] observed that there is "limited guidance in the case law as to when it will be 'more appropriate' for proceedings to be heard in another court for the purposes of s 149B(2) of the CPA." Robb J (at [53]) referred to the following statement of principle by Pepper J in Pierce v Minister Administering the Water Management Act 2000 (Pierce): [26] In Pierce v Minister Administering the Water Management Act 2000 [2012] NSWLEC 33, Pepper J stated as follows at [37]: 37. Logically, and having regard to the overriding purpose contained in s 56 of the CPA (as informed by ss 57-60 of that Act), the following factors are likely to be relevant, but few will be wholly determinative: (a) whether an issue concerning the jurisdiction of either court to hear and dispose of the proceedings exists; (b) whether either court has the power to grant the relief sought; (c) whether one court is better placed to determine the issues raised by the proceedings, having regard to each court's expertise and skill; (d) whether the transfer will result in a saving of time and cost to the parties; (e) whether the transfer will result in in a more efficient allocation of judicial resources; and (f) whether in all the circumstances the transfer is just.

The applicant's submissions in relation to the transfer motion

1. In the circumstances here, the applicant submitted that the following matters informed the "state of satisfaction" required by the Court to order a transfer pursuant to s 149B of the CPA: 1. "whether it be well founded or not, there is a debate as to this Court's jurisdiction"; 2. that "there is no doubt that the Supreme Court has jurisdiction and power to grant the entirety of the relief sought"; 3. that the easement claim and the Class 4 proceedings "arise from the same factual scenarios, involve the same parties and rely on the same evidence" and therefore, "the interests of justice lie in favour of avoiding duplication and hearing the two claims together"; 4. "while the rationale behind s 71 of the LEC Act may be to allocate to this Court specialist work, it is not an exclusive jurisdiction, and indeed appeals from this Court lie to the Court of Appeal"; and 5. there is no evidence before the Court that demonstrates or supports that the transfer would result in a less efficient allocation of judicial resources.

The first respondent's opposition to the transfer motion

1. In opposing the transfer motion, the first respondent submitted that the two "specialist" courts would be better able to deal with each of the "specialist topics" sought to be advanced by the applicant (one in planning, one in equity), and that recognition of this "adheres to the statutory separation of the functions of the two superior courts and so promotes the public interest". Further, the applicant's contention that the claims arise from the "same" factual scenarios was "clearly wrong" in that the easement claim depend on circumstances occurring before and separate to those concerning the assessment and determination of the development application. The application under s 88K of the Conveyancing Act was not something "arising" from the "same" facts. Further, nothing prevented the applicant commencing her property law dispute in the Supreme Court and having that transferred to be heard and determined with the judicial review application in this Court if there were any "true advantage" in having all the issues determined at once. The motion to transfer should be refused, and the "offending parts of the application struck out".
2. While the first respondent did not question the power of the Court to order the transfer of the proceedings to the Supreme Court pursuant to s 149B of the CPA, it submitted that the Court would not do so as a matter of discretion for the following reasons: 1. The Court should put significant weight on the "legislative injunction" [27] in s 71 of the LEC Act and/or recognition that this Court is a specialist Court concerning planning and environmental laws. This includes specialist experience with the exercise of the "unusual" functions of suspending and validating otherwise invalid development consents under Division 3 of Part 3 of the LEC Act. This specialisation was a "powerful" [28] consideration in relation to the exercise of discretion. 2. An order for transfer would create a "textual tension" between s 149D(a)(i) of the CPA (in that the proceedings would be statutorily deemed to be "duly commenced" in the Supreme Court) and s 71(1) of the LEC Act (in that proceedings under s 20(1)(e) "may not be commenced or entertained in the Supreme Court"). This added to the "significant weight" that ought be afforded the "legislative injunction" in s 71(1) of the LEC Act, as the direction in s 71(2) that the "legislative injunction" in s 71(1) not be "limited" by the CPA or UCPR. 3. The present circumstances are not sufficiently "powerful" to overcome the "legislative injunction" when considering the two factors identified by Basten JA in Young v King (Young), [29] being the nature of the proceedings and the relief sought. Analysis of those two considerations in the present case marks an "important point of difference" to those considered in Connor because: the claim in Connor, though partly under the EPA Act, was exclusively for damages. [30] Although "the planning law" was invoked, the claim (there in tort and under the EPA Act) was one to vindicate private rights through the payment of compensation, and involved the same or similar evidence, and the same parties. 4. By comparison, the claims here involved: on the one hand, public rights and duties as between the applicant and, primarily, Council (the second respondent) concerning Council's actions under environmental and planning law; and on the other hand, private rights said to arise in equity with no relationship to any environmental and planning law, and as between the applicant and the first respondent. The first respondent submitted that the evidence in relation to each claim would be qualitatively different, and the relief sought in relation to each part of the claim likewise qualitatively different. 5. A better analogy was submitted to be provided by the decision of Ward J in 363 Military Road Mosman Pty Limited v The Owners Strata Plan 72814 (363 Military Road). [31] Although her Honour there found that separate proceedings commenced in the Supreme Court and in the Land and Environment Court about whether an intercom structure should be relocated would "relate broadly to the same controversy", her Honour did not consider the two claims to be of "close" association. [32] A matter of "considerable weight" was that the evidence would be different. [33] Accordingly, Ward J refused transfer even if that meant two proceedings continuing in the two courts (although her Honour ordered a stay of the Supreme Court proceedings pending the outcome of the Land and Environment Court proceedings). [34]
3. Further, the applicant's easement claim was submitted by the first respondent to be "inherently weak to the point of being unworthy of transfer". An "implied" easement of the kind pleaded by the applicant as arising from an "intention" of a vendor but pursued against a successor in title, was "impossible to establish", citing the decision of the Court of Appeal McGrath v Campbell. [35] The nature of the "implied" easement was "one for light and air: an interest that cannot be 'deemed to exist, or … be capable of coming into existence by reason only of the enjoyment of such access, or use, for any period…' under s 179 of the Conveyancing Act". Moreover, none of the statutory matters in s 88K of the Conveyancing Act had been pleaded, the points of claim only asserting that such matters would be the "subject of expert evidence".

The applicant in reply in relation to the transfer motion

1. In reply, the applicant submitted that J K Williams, upon which the first respondent relied in relation to the "legislative injunction", was dealing with a different category of case. As in this Court, applications for judicial review of administrative decisions are commonplace in the Supreme Court. In the present case, "the specialist aspects of this court do not weigh strongly against the transfer in the prevailing circumstances of the litigation as a whole". [36]
2. Notwithstanding her submission that the proceeding in its entirety ought be transferred to the Supreme Court, the applicant referred to "the fact that the existence of the easement, whether implied or statutory, is an essential integer in the determination of the legal issues of which this Court is unquestionably seized", such that the determination of the former is ancillary to the determination of the latter for the purposes of s 16(1A) of the LEC Act. [37] In other words, the applicant did not contend that this Court does not have jurisdiction pursuant to s 16(1A) of the LEC Act to determine the issue of the implied easement.

Conclusions on the transfer motion

1. In relation to the applicant's transfer motion, I find that the proceedings ought be transferred to the Supreme Court.
2. Having regard to the overriding purpose in s 56 of the CPA Act, informed by ss 55 to 70, I conclude as follows: 1. A question has arisen as to the jurisdiction of this Court to hear and dispose of the relief sought in prayers 3 and 4 of the summons in relation to an implied easement. 2. This Court does not in Class 4 proceedings have power pursuant to s 40 of the LEC Act to grant the relief sought in prayers 3 and 4; nor does it have jurisdiction pursuant to s 16(1A) to hear and dispose of matters in relation to the alleged implied easement. I so conclude having regard to my consideration below of the Court's ancillary jurisdiction in s 16(1A) (at [79] to [96]), the ambit of the Court's jurisdiction pursuant to s 16(1A) being a question raised by both the transfer issue and the strike out issue in these proceedings. 3. The Supreme Court, on the other hand, has jurisdiction to grant the entirety of the relief sought by the applicant. 4. Whilst this Court is undoubtedly a specialist court in relation to planning and environmental laws, such specialisation does not diminish the authority of the Supreme Court to determine judicial review challenges which arise in relation to those laws. Nor could this Court's specialisation in planning law be seen to be diminished if the judicial review aspects of the proceedings were determined by the Supreme Court. As the applicant submitted, applications for judicial review of administrative decisions are commonplace in the Supreme Court. 5. A transfer of the entirety of the proceedings, rather than its bifurcation, would result in a saving of costs and time to the parties, a more efficient allocation of judicial resources, and would in all the circumstances be just. The judicial review and easement claims arise from essentially the same factual background and involve the same parties. Whilst accepting that the evidence in relation to the claims might not be the same, I find there would likely be a considerable degree of overlap. 6. I do not accept that the resolution of the transfer motion ought ultimately be resolved by reference to what the first respondent says is the applicant's "mistake" at the commencement of the proceedings in this Court. It is not a question of whether the Court would extend a "discretionary indulgence" to the applicant, rather whether the Court, in the exercise of its discretion, considers it desirable to avoid a bifurcation of proceedings. 7. It may be correct, as the first respondent submitted, that the applicant's claim in relation to the implied easement is "inherently weak", and that none of the statutory matters in s 88K of the Conveyancing Act have been pleaded. These may well be matters to be agitated by the first respondent subsequent to transfer. However, they do not arise to be determined on the transfer motion.
3. Accordingly, I will make an order pursuant to s 149B of the CPA that the proceedings be transferred to the Supreme Court.

Whether the easement relief ought be struck out from the summons and points of claim (the strike out issue)

1. Having determined, in the exercise of the Court's discretion, that the proceedings be transferred to the Supreme Court, I do not need to determine whether the easement claim and the relief sought in prayers 3 and 4 of the summons ought be struck out from the summons and points of claim. However, in the exercise of the Court's discretion, I took into consideration whether the Court has power pursuant to s 40 of the LEC Act, or jurisdiction pursuant to s 16(1A) of the Act, to grant the easement relief. Accordingly, I shortly address the parties' submissions in relation to the strike out motion.

The Court's ancillary jurisdiction in s 16(1A) of the LEC Act

1. The first respondent continued to press prayers 2(a) and 3(a) of its strike out motion, contending that it is not within the jurisdiction of the Court to grant the relief sought in prayers 3 and 4 of the applicant's summons in relation to the easement claim. The applicant submitted that it is within the Court's jurisdiction to grant such relief pursuant to s 16(1A) of the LEC Act. The applicant did not rely on s 40 as the source of the Court's power to grant the relief.
2. Accordingly, I proceed to consider whether the Court has jurisdiction pursuant to s 16(1A) of the LEC Act to grant the easement relief sought in prayers 3 and 4 of the summons as ancillary to the relief sought in relation to the development consent.

Council of the City of Sydney v Wilson Parking Australia Pty Ltd

1. Prior to the introduction of s 16(1A) of the LEC Act (on 18 June 1993 by way of Sch 2 to the Local Government (Consequential Provisions) Act 1993 (NSW)), the Court of Appeal in Perisher held that this Court, although a superior court of record, is a court of limited jurisdiction, and has no accrued or "pendent" jurisdiction of the kind exercised by the Federal Court. [38]
2. In response to the Court of Appeal's decision in Perisher, Parliament introduced s 16(1A) of the LEC Act. [39]
3. In Council of the City of Sydney v Wilson Parking Australia Pty Ltd (Wilson Parking) [40] Beech-Jones AJ at [36] to [37] assembled some of the authorities in relation to s 16(1A), including the decision of the Court of Appeal in Arnold v Minister Administering the Water Management Act 2000 (Arnold), [41] as follows: 36. In Scharer v State of New South Wales (2001) 53 NSWLR 299 at 308 ("Scharer") Stein JA described the introduction of s 16(1A) as a response to the decision in Perisher, although in Arnold v Minister Administering the Water Management Act 2000 (2008) 73 NSWLR 196 ("Arnold") at [69] Spigelman CJ described that response as "measured". In particular the phrase "ancillary" was found to be much narrower than "associated" as used in s 32 of the Federal Court of Australia Act 1976 (Nix v Pittwater Council (1994) 84 LGERA 199 at 204-205 per Gleeson CJ). It only embraced matters that were "incidental", "accessory" or "auxiliary" to the second mentioned matter in s 16(1A) (Nix at 205 and Scharer at 308). In Arnold at [74] Spigelman CJ stated that "[t]here is a concept of subservience implicit in the idea of an 'ancillary matter'". 37. In Arnold at [73] Spigelman CJ noted that "questions of fact and degree" are involved in determining whether or not one matter is ancillary to another. His Honour accepted that where the determination of a legal issue constitutes an "essential step in the course of determining an issue that is [otherwise] within the jurisdiction of a court, then the determination of the former will be ancillary to 10 the determination of the latter" (at [75]). Nevertheless his Honour accepted that this was not exhaustive of the circumstances in which one matter will be found to be ancillary to another for the purpose of s 16(1A) (Arnold at [68] and [77] to [82]). In fact, this Court's authority to determine such matters flows from the grant of jurisdiction in s 16(1) even without s 16(1A) (see Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301; Perisher at 581 per Gleeson CJ). Some observations in this Court that s 16(1A) only confers authority to decide such legal issues which are "essential" to the matters otherwise within the Court's jurisdiction do not survive Arnold at [68] (see for example Hawkesbury City Council v Dundler [2005] NSWLEC 662 at [41] per Cowdroy J).

The applicant's submissions in relation to s 16(1A) of the LEC Act

1. The applicant submitted that the analysis of Beech-Jones AJ in Wilson Parking at [44] to [45] "supports the proposition that s 16(1A) of the LEC Act operates to confer upon this Court jurisdiction to dispose of the entire ambit of the controversy brought within the necessarily narrow width of matters that form the basis for this Court's jurisdiction conferred by s 16, and thereby ss 17 - 21C of the LEC Act".
2. To the extent to which this conclusion is inconsistent with the decision of Pearlman J in NTL Australia Pty Ltd v Minister for Land and Water Conservation (NTL), [42] the applicant said that her Honour's decision was to be doubted. Beech-Jones AJ had no occasion to consider the correctness of the decision of Pearlman J in NTL as it was not argued before him.
3. It follows, the applicant submitted, that the Court in the disposition of the "matter", has jurisdiction to adjudicate in respect of the easement claims under s 16(1A), not only because it would be ancillary to the disposition of the matter within jurisdiction, but because it is part of the single justiciable controversy properly brought within the Court's jurisdiction. This conclusion, the applicant submitted, was fortified by the fact that this Court has jurisdiction to grant an easement in Class 3 proceedings under s 40 of LEC Act which "incorporates s 88K of the Conveyancing Act for the benefit of an applicant for development in a Class 3 appeal over a subservient tenement".

The first respondent's submissions in relation to s 16(1A) of the LEC Act

1. The first respondent submitted, and I accept, that the observations of Beech Jones AJ in Wilson Parking at [44] to [45], upon which the applicant relied, concerned a particular question that his Honour had identified at [38]: namely, can the Court deal with an "ancillary" matter when the "core" matter has not been pursued. The question which arose in Wilson Parking is not before the Court here, and the applicant's invitation to reconsider the decision of the chief judge in NTL and authorities following that decision should be declined.
2. The first respondent also submitted that what arises from his Honour's reasons in Wilson Parking, and from the plain text of s 16(1A) of the LEC Act, is whether the property law dispute that the applicant seeks here to agitate (concerning an "alleged equity of an 'implied easement' and/or claim under s 88K of the Conveyancing Act") is properly "ancillary" to the planning law dispute concerning the validity of the grant of development consent.

Conclusion in relation to the strike out issue

1. I conclude that the applicant's application under s 88K of the Conveyancing Act is not within the jurisdiction of this Court, taking the "widest possible view" of the Court's ancillary jurisdiction. This is because the pre-conditions to the exercise of the Court's powers in s 40 of the LEC Act which confers additional powers on the Court in relation to the provision of easements are not fulfilled. I do not consider that the use of s 16(1A) to cut across the application of s 40 of the LEC Act would promote a harmonious operation of the provisions of the Act, or would be consistent with the principle of statutory construction that general provisions are subordinated to specific ones (generalia specialibus non derogant). [43]
2. Further, having regard to how the applicant has framed the easement claim in her points of claim filed on 23 November 2022, that claim cannot be considered "a matter that is ancillary to" the planning claim. Neither s 4.15 of the EPA Act nor any provision of the Tweed Local Environment Plan 2014 (Tweed LEP) is referred to in relation to the implied easement claim, nor could the Tweed LEP be, given cl 1.9A which disapplies "any agreement, covenant or other similar instrument that restricts the carrying out of…development". [44]
3. The planning law claim involves challenges to the development consent - an allegation of a denial of procedural fairness, a claim of "constructive fraud" in the supply of assessment material, unreasonableness, and failure to consider the correct test under the various planning controls. The easement claim is not ancillary to the planning law claim because there is nothing in the matters said to give rise to the alleged implied easement (either in equity or as a consequence of s 88K of the Conveyancing Act) which can be said to be "incidental, accessory or auxiliary" to the judicial review challenges to the second respondent's decision to grant development consent. [45]
4. Matters which have been held to be insufficient to engage the ancillary jurisdiction of the Court include a claim for an injunction to remedy unlawful development with separate claims of nuisance for damages; [46] a claim for damages of a breach of a development contract with a separate claim for damages in negligence; [47] and a claim in relation to prohibited development, with a separate application for an order requiring a party to notify potential purchasers of the subject property of orders made by the Court. In the last of those cases, Pepper J held as follows: [48] 91. …I am of the opinion that the Dobrohotoffs cannot avail themselves of ss 16(1A) and 20(2) of the LEC Act. Section 16(1A) permits the court to hear and dispose of matters "ancillary" to its conferred statutory jurisdiction. The provision amplifies the range of subject matters that the court can entertain, but this is not to be conflated with the conferral of additional power to make orders where none otherwise exists.
5. On the other hand, matters which have been held to be sufficient to engage the ancillary jurisdiction in s 16(1A) include an application for an order further to a final order in relation to its enforcement or implementation; [49] an application for an advance payment of compensation in Class 3 proceedings; [50] an application for an order of refund of a payment made under a challenged condition of consent; [51] and where damages were claimed as a consequence of conditions of a development consent found to have breached the EPA Act. [52]
6. Scharer concerned a claim in relation to an easement transferred from the Supreme Court to this Court. Stein JA (Hodgson JA agreeing) held that the easement relief sought was grounded in the National Parks and Wildlife Act 1974, thus falling under the Court's jurisdiction in relation to planning or environmental laws in s 20(2)(a) of the LEC Act. [53] His Honour held the incidental claim for damages in relation to the easement relief to be "plainly ancillary to the matters which fall within jurisdiction". [54]
7. In Van Tonder v Hodgkinson, [55] Biscoe J held that this Court has no jurisdiction under the Conveyancing Act 1919 other than the "limited jurisdiction" conferred by s 40 of the LEC Act. His Honour determined that there was no matter within the jurisdiction of the Court in relation to which the claim under the Conveyancing Act (in that case, s 196A) was capable of being ancillary. [56]
8. I do not consider that the easement claim involves "matters which must be resolved as part of an accessory or ancillary subservient function in the course of determining the matter within jurisdiction." [57] The easement claim and the relief sought in prayers 3 and 4 of the applicant's summons are not incidental, accessory or auxiliary, or subservient to a matter within the jurisdiction of the Court. For the reasons set out above at [75] to [77] above), in order to avoid a bifurcation of the proceedings, I have determined that the proceedings ought be transferred to the Supreme Court. The Supreme Court has jurisdiction to hear and dispose of the applicant's claims in their entirety. Accordingly, it does not arise for me to determine the first respondent's strike out motion.

Costs

1. Having determined that the proceedings be transferred to the Supreme Court, it arises to consider costs of the steps taken to date in this Court. The first respondent submitted that that issue should be resolved before any formal order for transfer be made. That was said to be "implied" in the reasons of Preston CJ in Bathurst Regional Council v Department of Planning, Industry and Environment trading as Natural Resources Access Regulator at [15]. There the chief judge said: [58] 15. Although NRAR did not oppose the transfer of the proceedings to the Supreme Court, it did seek an order that the Council pay NRAR's costs thrown away by reason of the transfer of the proceedings to the Supreme Court. The Council initially opposed that order. The parties sought time to prepare written submissions in support of their respective positions. I agreed and directed each party to file any evidence or submissions on costs according to a timetable. Subsequently the parties have agreed on the costs orders that they seek for the Court to make. The parties have agreed that the applicant is to pay the respondent's costs thrown away by the transfer of the proceedings from the Land and Environment Court to the Supreme Court in the agreed sum of $18,900, at the conclusion of the proceedings.
2. The first respondent submitted that if it is successful on the two motions, the applicant ought to be ordered to pay its costs. If the applicant were to be successful on the motions, that would be the grant of an indulgence by the Court, despite the "mistake" made by the applicant in the commencement of the proceedings in this Court. Such circumstances, it was submitted, should not be rewarded with any order as to costs.
3. Each party has had some measure of success on the motions before the Court. The applicant has been successful on the transfer motion. Whilst I have held that the Court does not have jurisdiction in relation to the relief sought in prayers 3 and 4 of the summons, I have not determined the first respondent's strike out motion. The issues sought to be agitated by both active parties in their s 78B notices have not assisted the Court in the resolution of the issues raised on the two motions. Accordingly, I make no order as to the costs of the motions.

Orders

1. The Court makes the following orders: 1. Pursuant to s 149B(1) of the Civil Procedure Act 2005 (NSW), these proceedings be transferred to the Supreme Court of New South Wales. 2. No order as to costs of the notices of motion filed 5 December 2022 and 3 February 2023.

Endnotes

1. Order 1 was not pressed at the hearing of the notices of motion on 30 May 2023.
2. Likewise, orders 2(b)-(c) and 3(b) were not pressed at the hearing of the notices of motion on 30 May 2023.
3. Judiciary Act 1903 (Cth) s 78B(2)(c).
4. See Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290; [1922] HCA 50 at 299-300 (Knox CJ, Gavan Duffy J), 334 (Higgins J).
5. CPA s 56.
6. (2009) 77 NSWLR 287; [2009] NSWCA 262 (Pselletes) at [44] to [47] (Tobias JA, Ipp JA and Sackville AJA agreeing).
7. (2018) 264 CLR 1; [2018] HCA 4 (Probuild) at [28] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
8. Cf Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 at [59], [67], [77] to [79] (Leeming JA, Bathurst CJ and McColl JA agreeing).
9. CPA s 56.
10. LEC Act ss 71(1), 20(1)(e), 20(2).
11. LEC Act s 71(2).
12. Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) at 1 citing CGU Insurance Ltd v Blakely (2016) 259 CLR 339; [2016] HCA 2 at [31] (French CJ, Kiefel, Bell and Keane) and Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 at [6] (Gleeson CJ and McHugh J).
13. LEC Act s 20(3)(a).
14. CPA s 56(1).
15. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70] (McHugh, Gummow, Kirby, Hayne JJ).
16. Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254; Probuild at [29].
17. (2010) 239 CLR 531; [2010] HCA 1 at [96] to [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
18. (1990) 20 NSWLR 573 at 583 (Gleeson CJ).
19. (2018) 97 NSWLR 1132; [2018] NSWCA 133 at [67] to [68] (Leeming JA, Bathurst CJ and McColl JA agreeing).
20. Kirk at [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
21. (1996) 189 CLR 51; [1996] HCA 24 (Dawson J).
22. LEC Act s 5.
23. (2014) 88 NSWLR 240; [2014] NSWCA 414 at [56] (Basten JA).
24. [2017] NSWLEC 7 (Robson J).
25. [2020] NSWSC 220 (Robb J).
26. [2012] NSWLEC 33 (Pepper J).
27. J K Williams at [34] (Robb J).
28. J K Williams at [62] (Robb J); Australia YMCI Ltd v Secretary of the Department of Customer Service [2021] NSWSC 1114 at [118(1)] (Walton J).
29. [2016] NSWCA 282 at [15] (Basten JA).
30. Connor at [4] (Robson J).
31. [2012] NSWSC 263 (Ward J).
32. 363 Military Road at [22] to [23] (Ward J).
33. 363 Military Road at [44] (Ward J).
34. 363 Military Road at [48] (Ward J).
35. (2006) 68 NSWLR 229; [2006] NSWCA 180 at [102] to [104] (Tobias JA, Giles and Hodgson JJA agreeing).
36. Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2012] NSWLEC 237 at [19] (Sheahan J).
37. See Arnold v Minister Administering the Water Management Act 2000 (2008) 73 NSWLR 196; [2008] NSWCA 338 at 215 [75] (Spigelman CJ, Allsop P and Handley AJA agreeing).
38. Perisher at 578-580 (Gleeson CJ), 586 (Kirby P), 587 (Meagher JA).
39. Scharer v State of New South Wales (2001) 53 NSWLR 299; [2001] NSWCA 360 (Scharer) at [48] (Stein JA).
40. [2015] NSWLEC 42 (Beech-Jones AJ).
41. (2008) 73 NSWLR 196; [2008] NSWCA 338 at [73] (Spigelman CJ, Allsop P and Handley AJA agreeing).
42. (2001) 112 LGERA 403; [2001] NSWLEC 5 (Pearlman J).
43. Herzfeld and Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [5.210], [6.180].
44. See Carey-Evans and Quist and Executors of the Estate of Robert Rufus Carey-Evans v Wu [2022] NSWLEC 144 at [10], [59], [93] (Preston CJ).
45. Nix & Dunn v Pittwater Council (1994) 84 LGERA 199 (Nix & Dunn) at 205 (Gleeson CJ).
46. Nix & Dunn at 205 (Gleeson CJ).
47. Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95; [2001] NSWLEC 247 at [21] (Pearlman J).
48. Dobrohotoff v Bennic (2013) 194 LGERA 17; [2013] NSWLEC 61 at [91] (Pepper J).
49. Woollahra Municipal Council v Baranov (2006) 144 LGERA 96; [2006] NSWLEC 97 at [26] to [27], [32] (Jagot J).
50. Azizi v Council of the City of Ryde [2021] NSWLEC 40 at [20], [25], [49] (Moore J).
51. Newcastle City Council v Caverstock Group Pty Ltd (2008) 163 LGERA 83; [2008] NSWCA 249 at [50] (Spigelman CJ, Bell JA and Handley AJA agreeing).
52. N&S Olivieri Pty Ltd v Fairfield City Council [2002] NSWLEC 35 at [35] to [36] (Cowdroy J), noting that the development consent was held to be valid on appeal: see Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 (Spigelman CJ, Santow JA, Cripps AJA).
53. Scharer at [33] (Stein JA, Hodgson JA agreeing).
54. Scharer at [49] (Stein JA, Hodgson JA agreeing).
55. [2012] NSWLEC 86 (Van Tonder) at [23] (Biscoe J).
56. Van Tonder at [26] (Biscoe J).
57. NTL at [28] (Pearlman J).
58. [2021] NSWLEC 109 at [15] (Preston CJ). 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: 18 August 2023