Whether common law requirements of procedural fairness have been excluded by the EPAA
117There is a preliminary question that arises by reason of the applicant's alternative argument. The applicant contended that even if the community consultation requirements did not oblige the Council to notify him or other affected or adjoining landowners, common law procedural fairness required that he, and they, be notified. He also argued that the common law required that he be notified of the proposed absence of a savings and transitional provision and that a public exhibition without the draft DCP was misleading and therefore not a valid public exhibition.
118The question whether the EPAA as a matter of construction excluded common law procedural fairness (in the sense of the right to be notified and the right to be heard) was considered in Vanmeld Pty Limited v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78 (Vanmeld). Justice Meagher said:
[181] In this case, the Council publicly exhibited its draft LEP between March and June 1992, and again from 17 August to 9 October 1992, and for five months from December 1992 until May 1993 held a public hearing into submissions received concerning the draft LEP. It may thus be seen that the Council consulted with its ratepayers as far as possible, and did nothing clandestine. But, more than that, during the public hearing there was extensive discussion about flood mitigation and flood management, which led directly to the prohibition of fill in flooding areas contained in cl13(3). The appellant must have known from this discussion in what direction policies were moving and could have said all it wanted to say on the matter either at or after the public meeting; and, indeed, despite the litany of alleged wrongs on behalf of the Council, it was never suggested that the provisions of cl 13(3) were surprising or unexpected, much less that there was a reasonable expectation that no amendment of the sort would be made.
[182] In these circumstances, I think the Act specifies exactly to what extent procedural fairness must be accorded to a ratepayer.
119Justice Powell's conclusion as to this matter was the same. His Honour expressed his view at [190]:
...it seems to me that the provisions of Pt III of Division 4 of the EPA Act are such as to indicate a legislative intention that, except to the extent of the requirements to notify, and to consult, there provided for, a council seeking the making of an environmental planning instrument was not to be subject to any duty to accord procedural fairness to any person, or body, who, or which, might be affected by the provisions of the proposed instrument...
120Chief Justice Spigelman dissented in the result in Vanmeld. His Honour's remarks on procedural fairness in the dissenting judgment are often cited in circumstances where the principles of common law procedural fairness are held to apply.
121The decision of the majority in Vanmeld appears to be based on the proposition that Parliament has evinced an intention to make exhaustive provision for community consultation of which the applicant is part and that therefore the applicant ought not be taken to be entitled to a greater right to be notified and heard than accorded to the general community in which the proposed development is located.
122The applicant submitted that the law had substantially changed since Vanmeld and referred to the decision of Saeed v The Minister [2010] HCA 23; 241 CLR 252 (Saeed). The High Court strictly construed the words "in relation to the matters it deals with" (in a statutory provision purporting to provide an exhaustive statement of the natural justice hearing rule in such matters) which left the natural justice hearing rule available in respect of matters not dealt with. The subject matter of Saeed (an application for a visa) was wholly different from the present case, which concerns development of land which requires, as a matter of statute, community consultation. The statements of principle articulated by the High Court in Saeed, while apposite to a visa application, cannot be applied without adjustment to a system of environmental planning and assessment which has, as an important feature, the consultation of the community, of which the applicant, as landowner, is part. I do not regard Saeed as overruling or undermining the decision of Vanmeld, by which I am bound.
123The EPAA has been amended since Vanmeld, in particular by the introduction of the procedure for gateway determinations and the requirement that a planning proposal be publicly exhibited rather than the draft proposed instrument itself. I do not consider the statutory amendments give rise to any relevant distinction or indeed any different conclusion than was reached by the majority in Vanmeld that the right to be heard and notified that would otherwise arise at common law has been excluded by statutory implication. The applicant, as with other affected landowners, is part of the community that is required, in accordance with the Minister's gateway determination, to be consulted, unless the Minister determines under s 56(3) and s 73A of the EPAA that there be no consultation.
124The applicant also sought to distinguish Vanmeld from the present case on the basis of the following circumstances of which (1)-(3) are extracted in terms from his written submissions:
(1)"the Council would gain a secret benefit in proceedings before the Court [the Second Class 1 Proceedings] by making the Amendment without providing advance notice to the Applicant";
(2)"the Planning Proposal as exhibited was incomplete or misleading in that it was expressed to remove the floor space ratio and maximum building heights for the Subject Land [the Site] even though the Council knew and intended that new controls would be placed in the (also unpublished) March DCP. This was an additional way that the Council was intended to gain a secret benefit in the proceedings without providing advance notice to the Applicant.";
(3)"the fact that the Council held the Minister's delegation to make the Amendment made the Applicant particularly vulnerable to the Council's exercise of the power to make the Amendment";
(4)The making of the Amendment without a savings or transitional provision would render the proceedings nugatory.
(5)The LEP was Site-specific and the applicant was the sole owner of the Site.
125I do not accept that any of these bases, whether taken together or separately, provides any warrant to distinguish the finding that the EPAA has by necessary implication excluded the rules of procedural fairness as the right to be notified and heard are concerned. To the extent to which the expression "secret benefit" is alleged, I do not consider it to be an apposite term. It connotes bad faith and I do not understand there to be any basis for the allegation. I do not regard the Council as having acting in any clandestine way.
126I do not see any basis on which the applicant could be said to be entitled to procedural fairness as to whether a savings and transitional provision would be included in Amendment 13. One might, in any event, think that the applicant could reasonably be expected that it would not be. The Planning Proposal which became Amendment 13 was specific to the Site. It represented what the Council envisaged for the Site. The LUA which was the subject of the Second Class 1 Proceedings was inconsistent with Amendment 13. Amendment 13 could be rendered of no effect if there was a savings and transition provision, such as clause 1.8A of the 2010 LEP (set out above), because it would, in that event, have left open the possibility that the Commissioner in the Second Class 1 Proceedings would approve the LUA.
127The evidence established that the applicant was well aware of the progress of the draft LEP in that he knew that it had been forwarded to the Department to be made. What he did not know (and what the Council might not have been able to tell him) was the precise date on which Amendment 13 would be published and accordingly take effect and whether the Second Class 1 Proceedings would be determined prior to that date. It is, in my view, inconceivable that the applicant did not appreciate that there was, effectively, a race against time and that his only chance of obtaining approval for the development was if the Commissioner decided the Second Class 1 Proceedings before Amendment 13 took effect.
128Mr Seymour argued that the making of the LEP was not "imminent and certain" (a well-established description: see the authorities referred to at [46]-[47] in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; 129 LGERA 195). My reading of his client's statement of facts and contentions filed in this Court in the Second Class 1 Proceedings was that his client appreciated that that was precisely its status as at 12 February 2014 when the statement was filed.
129Where a party to proceedings is also in a position to change the law which may render the proceedings nugatory and does so, this may in exceptional circumstances give rise to a special costs order (see the discussion in Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; 182 LGERA 370 at [298]-[308]; and Australians for Sustainable Development Inc v Minister for Planning (No. 2) [2011] NSWLEC 70 per Biscoe J). However I do not see any basis for considering that an applicant's status as a party to proceedings gives rise to a right to be notified and heard by the relevant decision-maker (the Council) where such a right has been otherwise excluded by statute.
130Of the matters identified by the applicant above, the only one which in my view is not foreclosed by Vanmeld is the question whether the failure to exhibit the proposed March DCP rendered the public exhibition misleading such that it cannot be considered to be a public exhibition. This question has already been considered in the context of the statutory requirements and will be referred to further below.
131However, in any event, I consider that common law principles of procedural fairness, even if applicable, have been complied with in the present case. The applicant, as I have found, was aware of the Planning Proposal, by receipt of the letter and also by the same processes as were used by the Council to inform the community of it. Furthermore the adjoining and affected landowners were accorded natural justice by similar means (internet and public exhibition, and in some cases by letter). I do not consider that a personal letter was required to accord natural justice to each of these people in the present case.