No order of mandamus made
47The Council can determine the DA given that owner's consent has been provided by the Department. It deferred its decision on the DA in May 2014 and again in August 2014. The Development Assessment Report dated 18 August 2014 recommended approval of the DA. If the Council's behaviour is unreasonable and/or there was a constructive failure to determine the DA by the Council the Court can exercise its discretion to make an order of mandamus. As the party seeking relief from the Court the Applicant bears the onus of establishing that these circumstances exist.
48As the Council submitted (and the Applicant agreed), the High Court has stated on a number of occasions, most recently in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 309 ALR 209 at [37], that where an Act is silent as to the period in which a statutory decision must be made, a reasonable time period is implied. What amounts to a reasonable time is ultimately a matter for determination by the Court, having regard to the circumstances of the particular case within the context of the decision-making framework established by the Act: Plaintiff S297/2013 at [37].
49The requirement for owner's consent to a DA over land arises under cl 49(1) of the EPA Regulation. As identified in Ipoh the giving of owner's consent is an important part of the statutory framework for development assessment under the EPA Act per Hodgson JA at [4]-[5] in obiter.
50The Council is acting as the consent authority under the EPA Act in assessing the DA. Under s 79C(1)(e) the Council is required to take into account the public interest inter alia. As the Council submitted and the Applicant accepted, the range of matters relevant to the public interest is very wide: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379 at [42]; Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63. In Pilbara, the High Court confirmed (at [42]) that when used in a statute, the expression "public interest" imports a discretionary value judgment to be made by reference to undefined factual matters and is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view". The granting of owner's consent is a requirement in the development application process under the EPA Act. It is within the Council's discretion in considering a DA in accordance with s 79C to consider in the public interest whether owner's consent has been validly granted. This is confirmed by observations of Bathurst CJ (Barrett and Ward JJA agreeing) at [206] in Duncan v Ipp. More relevantly given relatively similar facts to this matter, in Duncan v ICAC McDougall J held at [112] and [119]-[120] that corrupt conduct was relevant to the assessment of a Pt 3A application under the EPA Act by the relevant Minister as part of his consideration of the public interest.
51The Applicant accepted that owner's consent purportedly given under cl 49 of the EPA Regulation may be vitiated by corrupt conduct, if established. This is supported by general law principles outlined in The Law of Consent at p 77-79.
52The letter dated 14 August 2014 from the Department identifies a substantial concern by the Department in relation to the granting of owner's consent inter alia following the conduct of the independent review and is not speculative in nature. The Applicant's submissions underestimate the strength of the view expressed in the letter that it is doubtful whether the giving of owner's consent would have been recommended. The reasons given by the Council for its decision on 18 August 2014 to defer determination of the DA include reference to the letter from the Department dated 14 August 2014. The Council's reasons are set out above in par 20 and are matters within the Council's proper contemplation given its assessment functions under the EPA Act. As the Council submitted, as summarised in par 40, an owner's consent if tainted by fraud is likely to be invalidated.
53Mulyan considered different circumstances and the requirement for owner's consent (then s 77(1) of the EPA Act), Lloyd J holding that no owner's consent had in fact been given to a DA. The consequence was that the development consent issued by the Council was not a consent in law. That reasoning can apply by analogy in that if owner's consent is found to have been fraudulently or corruptly granted in this matter there is arguably no valid DA for which development consent can be granted in this case. Owner's consent is an essential precondition for a valid DA as found in Ipoh at [34(c)] and hence for a development consent. My finding is not based on any assumption of wrongdoing by the Applicant who may have no involvement in the behaviour under investigation.
54The Applicant relied on John Alexander Graham v Hornsby Shire Council (Land and Environment Court (NSW), 4 March 1998, Pearlman J unreported) where Pearlman J held (at p 2-3):
The remedy of mandamus is a discretionary remedy. Its purpose is to compel a public authority charged with the performance of a public duty to discharge that duty (The King v The Mayor, Alderman and Councillors of Stepney (1902) 1 KB 317 at 321) and it is an appropriate remedy in circumstances where a council fails to determine the application before it (cf City of Marion v Lady Becker and Ors (No 2) (1973) 30 LGRA 288 at 322; Lee v Sydney City Council (1983) 50 LGRA 382 at 386).
The basis for the grant of mandamus was enunciated by Dixon CJ in Tooth and Company Ltd and Anor v The Council of the City of Parramatta (1955) 97 CLR 492 at 498 in the following terms:
But, where the legislature has provided for the very description of case a remedy designed as appropriate and adequate, a court should be careful that mandamus is not used to avoid recourse to the remedy or as a substitute for it. The general rule is that the court exercises its discretion against granting a writ of mandamus where a remedy is provided by way of appeal or the like which is equally convenient, beneficial and effective. If the writ of mandamus does not provide the party with a more convenient and better remedy, the court, in such a case, leaves the party with that which has been provided.
55Pearlman J at p 4-5 held:
I am satisfied that there is no equally convenient, beneficial and effective remedy available to the applicant. It seems to me that, when Dixon CJ in Tooth v Parramatta referred to "a remedy ... by way of appeal or the like", he was referring to a remedy which relates to the circumstance which it is designed to cure. In this case, that circumstance is the council's failure to determine the development application which is currently before it. The lodging of a new development application does not cure that circumstance, it merely avoids it.
... the failure to appeal is only one factor to be considered in the exercise of the Court's discretion. In particular, it does not absolve the council from its statutory duty to determine the development application.
56The reasoning of Pearlman J can be embraced, identifying as it does the discretionary nature of the remedy and that it is directed to failure of a council to determine a DA. The passage of Dixon CJ in Tooth cited above emphasises that where another remedy exists such as an appeal right mandamus would not be granted. In Graham the Council sought to postpone determination of a DA to enable a lengthy period for investigation of groundwater. In that case the absence of an appeal right at the time of the application for mandamus was recognised as a relevant factor where the appeal right had lapsed as is the case here. Pearlman J considered that no effective remedy was available the appeal right having lapsed and that an order of mandamus was warranted. Each case must be determined on its own facts and those before me differ markedly from Graham.
57The Council submitted the failure of the Applicant to appeal was a self-inflicted prejudice, as it is in the sense that the Applicant did not avail itself of the right to a merits appeal which it had (whether at December 2013 or January 2014). Mr Sanchez's explanation in his affidavit is that he was uncertain of when the appeal period lapsed given the "stop the clock" letter sent by the Council, the cost of the appeal was of concern and that the Council appeared to be considering the development actively. I view this as a neutral factor in the context of this case as the key question is whether the Council acted reasonably in deferring for an undefined time a decision on the DA in these particular circumstances, rather than whether Mr Sanchez acted unreasonably in not pursuing his statutory appeal right.
58It is not appropriate to view the relevant period of delay of the decision by the Council as commencing from when the DA was lodged in March 2013. As events show, much of the intervening period was spent by the Council assessing the DA in the usual course of its business. As the Council submitted the relevant period is from the letter from the Department to the Council in August 2014 and the subsequent decision of the Council to defer the matter on 18 August 2014. The relevant period therefore is presently about three months.
59In all of these circumstances I do not consider the Council has acted unreasonably in deferring the DA as it has done, or constructively failed to determine the DA. Refusing the DA, an option the Applicant submitted was open to the Council, is not properly open. A Council must be clear about the basis on which it is refusing a DA and it is not presently in a position to be clear on the issue of whether owner's consent was properly granted. The outcome of the ICAC investigation is unknown. As a practical matter, if the DA was refused and an appeal right exercised to the Court under s 97 the same question would presumably arise in any event with similar uncertainty until the ICAC provides findings or advises that it does not intend to investigate the matter.
60My finding that the Council has acted reasonably is not undermined by the Applicant's submission that the owner, namely the Crown, may have avenues available to it, such as preventing the use of the subject land by the Applicant as lessee. I will not speculate on whether such avenues are available in the absence of any evidence.
61Accordingly I will not exercise my discretion to make the order of mandamus sought in the Amended Summons filed by the Applicant and the Amended Summons is dismissed.