Defence Housing Australia v Randwick City Council

Land and Environment Court (NSW)|2013-02-18|Before: Pain J

Judgment 1Defence Housing Australia (DHA) brings an appeal under s 56A of the Land and Environment Court Act 1979 (the Court Act) from the decision of two Commissioners in Defence Housing Australia v Randwick City Council [2012] NSWLEC 1181. The Commissioners held that they did not have jurisdiction to hear DHA's appeal under s 97(1) Environmental Planning and Assessment Act 1979 (the EPA Act). A s 56A appeal must identify a question of law. 2An extension of time for filing the s 56A appeal was granted at the outset of the hearing. 3DHA is established by s 11(1) of the Defence Housing Australia Act 1987 (Cth) (DHA Act) as a body corporate which may sue and be sued. It is vested by the DHA Act with a range of powers relating to the development and management of land and houses.

Background 4According to DHA's submissions, on 3 March 2011 DHA lodged with Randwick City Council (the Council) development application DA315/2011 (the DA) for the subdivision of land at Argyle Crescent, Randwick and the construction of eight semi-detached dwellings, garages and associated works. 5Since the Council had not made a determination of the DA, on 1 November 2011 DHA filed a Class 1 appeal with the Court under s 97(1) of the EPA Act. 6After DHA had filed the Class 1 appeal but also on 1 November 2011, the Council made a determination to refuse the DA. On 8 November 2011 the Council informed DHA of its determination. 7On 9 July 2012 the Court dismissed the s 97(1) proceedings, holding that: (i)it did not have jurisdiction, because the DA was a "Crown development application" (Crown DA) in respect of which there was no right of appeal under s 97(1); (ii)determination of a Crown DA was governed by s 89 of the EPA Act, as a discrete and self-contained provision; (iii)pursuant to s 89(1)(a) of the EPA Act the Council did not have power to refuse the DA without the Minister's approval and since no approval had been given, the Council's determination on 1 July 2011 was unlawful and of no effect and was not a determination for the purposes of s 97(1); and (iv)pursuant to s 89(2) of the EPA Act DHA or the Council could refer the DA to the joint regional planning panel (the Panel) at any time before the end of the period prescribed by the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation). 8Whilst having held it had no jurisdiction, the Court proceeded to determine the merits of the Class 1 appeal in favour of DHA, rejecting the Council's claim that the DA involved unacceptable loss of street trees or that it had a subsequent adverse impact on the streetscape and neighbourhood character. 9By letter dated 24 July 2012 DHA requested the Regional Panels Secretariat to refer the DA to the Sydney East Joint Regional Planning Panel for determination as a "Crown development application". 10On 7 September 2012 DHA, after seeking advice, commenced the present appeal under s 56A of the Court Act. 11By letter dated 12 October 2012 from Mr Marcus Ray, Executive Director, Assessment System General Counsel of the Department of Planning and Infrastructure (the Department), the Regional Panels Secretariat notified DHA that it had not accepted the referral because the Panel did not have jurisdiction. The letter advised that, having obtained the advice of the Crown Solicitor's Office, it was of the view that the DA was not a "Crown development application".

Commissioners' decision 12In Defence Housing Australia v Randwick City Council the parties agreed DHA had lodged a Crown DA with the Council. At issue was whether the Court had jurisdiction under s 97(1) following refusal of the DA by the Council. The Commissioners stated at [10], [11], [13] - [16], [18] and [19]: 10 The applicant argues that the Court has jurisdiction to determine the Crown development application under s 97(1) of the Act because s 39(2) of the Land and Environment Court Act 1979 (LEC Act) vests the Court with the functions, discretions and powers of the Council in the assessment and determination of the Crown development application. It submits that the Court can cure the breach of s 89(1) by giving effect to the Act and granting consent to the application. In support of this submission the applicant refers the Court to the following authorities: MLC Properties v Camden Council (1997) 96 LGERA 52; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J; R v Marks; Ex parte Australian Building, Construction Employees Builders Labourers' Federation (1981) 147 CLR at 484-485. 11 In the alternative, it submits if the Court determined to refuse the application or approve it subject to conditions, which were unacceptable to the applicant, then it would be obliged to comply with the limitations within s 89 of the Act. ... 13 After a consideration of the evidence and the parties' written and oral submissions we are of the opinion that there is no right of appeal under s 97(1) of the Act in the circumstances of this case. 14 We accept the Council's submission that s 89 operates as a self-contained and discrete provision that specifies the statutory framework for the determination of Crown development applications. 15 It was never open to the Council to lawfully refuse the application without the Minister's approval. Therefore, the Council's decision to refuse the Crown development application, without the Minister's approval, is contrary to s 89(1)(a) and is not a determination for the purposes of s 97(1) of the Act. Therefore, the Council's determination is not a legal impediment to the determination process continuing as prescribed under s 89. 16 The Council's failure to deal with the application within the prescribed period did not create a right of appeal on "a deemed refusal basis" in circumstances where s 89(2) of the Act specifies that either party may refer the application to the regional panel for a decision. Nor did the Council's decision to refuse the application, without the approval of the Minister, enliven an appeal right under s 97(1) of the Act. The applicant and/or the Council may refer the Crown development application to the regional panel at any time after or before the end of the prescribed period. ... 18 Accordingly, for the reasons stated we have decided that the Court does not have jurisdiction to deal with this appeal and, therefore, the appeal must be dismissed. However, if we are wrong in our interpretation of the legal issue, we have also dealt with the discrete merit issues raised by the law and the evidence. 19 While the council opposes the development on the basis of an unacceptable loss of street trees and subsequent adverse impact on the streetscape and neighbourhood character, we find the application on the evidence before us acceptable on its merits for the following reasons.

Amended grounds of appeal 13The questions of law finally articulated after much discussion during the hearing are: (i) Accepting the application is a Crown DA, whether the Court erred in holding it did not have jurisdiction under s 97(1) of the EPA Act (at [13], [18]), in that whether the DA was: (a) a Crown DA within s 89(2) of the EPA Act (first sentence par 16); or (b) a refusal of a Crown DA under s 89(1) of the EPA Act (second sentence par 16). the Council did not make a determination amenable to appeal under s 97(1) of the EPA Act (at [16]) (ground 1). (ii) Whether the Court erred in holding that the DA was a "Crown development application" for the purposes of s 88 of the EPA Act (at [1] - [18]) (ground 2). 14After discussion at the hearing it was decided that the Court need not determine a third ground of appeal and I do not need to set this out. 15The two remaining grounds of appeal are potentially conflicting given the unusual circumstances before the Court. Before the Commissioners DHA and the Council agreed that the DA in question was a Crown DA. The Commissioners found the Court did not have jurisdiction to hear an appeal under s 97(1) of the EPA Act by virtue of the operation of s 89. Following the Class 1 appeal DHA sent the DA to the Panel for determination as a Crown DA. The DA was sent back by the Panel's secretariat because the secretariat obtained legal advice that the Panel did not have jurisdiction because the DA is not a Crown DA. 16While events since the Commissioners' determination have resulted in DHA now wishing to submit that its DA is not a Crown DA in ground two, ground one asks the Court to assume that it is a Crown DA and that the Commissioners erred in resolving there was no appeal available under s 97(1). DHA maintains outside the construct of this litigation that it is not pursuing a Crown DA, in agreement with the advice of the Crown solicitor to the Regional Panels Secretariat. It is not desirable that the Court determine a hypothetical case, and depending on which ground of appeal is determined first there may be no need to entertain the other ground. It seems to me that ground 2 should be considered first as that is the important issue that arises from the present understanding by DHA of its position that the DA is not a Crown DA. Ground 1 requires an acceptance that the DA is a Crown DA, a hypothetical case given DHA's view.

Ground 2 17While the ground of appeal states the Commissioners were in error in holding that the DA was a Crown DA, there was no need for the Commissioners to in fact so hold. They appropriately adopted the agreed position of the parties. The first issue that therefore arises in considering this ground is whether in this s 56A appeal DHA can change its stated position at the Class 1 hearing before the Commissioners and now argue that its application is not a Crown DA but is in fact a usual DA. To the extent DHA's written submissions submitted that this was not a new issue that is clearly incorrect in light of the parties' agreement on a fundamental matter in the Class 1 appeal.

DHA's submissions 18DHA submitted that it should be able to raise this issue in this appeal because the issue went to the Court's jurisdiction. DHA accepts that generally parties on appeal are bound by the issues identified at first instance but a court has discretion to allow changes in issues in exceptional cases as identified in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7 and Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71. 19The misapprehension that the DA was a Crown DA was a matter that went to the condition precedent affecting the existence of jurisdiction of the Court, similar to Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343. As the matter goes to the Court's jurisdiction it has a serious impact on the rights of DHA which is otherwise denied access to the Court. 20The approach of Mason P in Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631 is broader than in Holcombe and Metwally (No 2) and allows an appellate court wider discretion, there in the context of a rehearing, to allow a new point on appeal if the appellate court finds it expedient and in the interests of justice to entertain the point. 21The necessity for DHA's change of position is clear from events following the Commissioners' judgment. The DA was referred as a Crown DA to the Panel which obtained advice from the Crown Solicitor's office that the Panel did not have jurisdiction as the DA was not a Crown DA. The Council is aware of the Panel's view but has continued to maintain that the DA is a Crown DA in this s 56A appeal.

Council's submissions 22The Council opposes DHA putting a different position in this s 56A appeal. At the Class 1 hearing DHA submitted that its DA was made by or on behalf of the Crown pursuant to s 88(1) of the EPA Act. This contention was based on DHA's view of s 89(1). It was common ground between the parties that the DA was made by or on behalf of the Crown. 23DHA utilised the services of the Court to obtain careful consideration of its application on the basis it promoted and caused the Commissioners to consider, address, and deal with the issues presented. Authorities emphasise that a party on appeal is bound by the way it conducted the case at first instance. This is not only a new point, but a reversal of an agreed and established position upon the faith of which both parties proceeded and the Court made a decision. The principles in Coulton v Holcombe and Metwally (No 2) suggest discretion should not be exercised in DHA's favour. The observations of Mason P (Gleeson CJ and Priestley JA agreeing) in Multicon also apply.

New issue can be raised 24In Coulton v Holcombe an application to amend grounds of appeal to add an issue not adverted to at trial was considered by the Court of Appeal. The reason given for the failure to raise the new issue at trial was that the point had been overlooked. Gibbs CJ, Wilson, Brennan and Dawson JJ held that this was impermissible and stated at 11 that: ... The respondents must be bound by the conduct of their case at the trial. It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied. ... 25In Metwally (No 2) the appellant sought to vacate an earlier order made by the High Court to allow a new issue to be raised. The High Court had made orders assuming the validity of the Racial Discrimination Act 1975 (Cth), the appellant then sought to challenge the constitutional validity of that Act. The High Court unanimously held that it would not vacate its orders and stated at 71 that: ... It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. ... 26In Multicon the appellant sought to raise a new issue for the first time in an appeal by way of re-hearing. Mason P stated that the applicable principle in the case of an appeal by re-hearing (at 645) is that: ... A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court "may find it expedient and in the interests of justice to entertain the point": Water Board v Moustakas (1988) 180 CLR 491 at 497 27Along with other members of the Court of Appeal, Mason P (Gleeson CJ and Priestley JA agreeing), refused to allow the new matter to be raised (at 646) on the basis that: ...it would not be "in the interests of justice" to permit Multicon Engineering to repudiate on appeal the stance it adopted at all stages in the trial. That would make it a classical case of a party having elected to fight on one basis, and lost, seeking a new trial to be allowed to fight it on another basis. 28A useful summary of relevant principles is also found in a decision of the Western Australian Court of Appeal in Rizhao Steel Holding Group Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 287 ALR 315 at [48]-[54], identifying that the High Court has stated that a new point on appeal is only allowed in exceptional cases and only if two requirements are met. The interests of justice must require determination of the new point and there must be no prejudice to the party against whom the new point is taken. 29These cases confirm that while the Court has discretion to allow a new issue to be raised in this appeal, such discretion must be applied sparingly, particularly where it is a limited appeal on a question of law. I consider that given the unusual circumstances before me these do amount to exceptional circumstances suggesting that it is in the interests of justice that DHA be allowed to change its position to submit that it is not pursuing a Crown DA in this s 56A appeal. While this is contrary to a fundamental position of DHA before the Commissioners, subsequent events with the refusal by the Panel to accept the DA mean that DHA has no obvious means of pursuing this DA under the EPA Act, it being dependent on successfully arguing ground 1. It is a question that goes to the Court's jurisdiction to determine the merits of the DA and can therefore be taken into account in exercising discretion: Kuswardana at 343. If the position is really that the DA is not a Crown DA, a matter the Court has yet to determine, then it can be considered as a usual DA under the EPA Act and the Court does have jurisdiction. Further, for the reasons given above at par 16 as to why ground 2 should be considered first, by allowing this ground of appeal to be argued the real issue now between the parties can be determined. 30The Council has not identified any particular prejudice to it if this course is taken. There is the obvious one of incurring costs arguing matters that may now be irrelevant. The Court's resources have also been expended with the Commissioners determining an issue they need not have considered if DHA is successful on ground 2. I do not consider these are trivial matters but I do not understand that there is otherwise material prejudice to the Council's position in the appeal overall if this new issue is raised now. Costs can be dealt with by an appropriate costs order in due course if warranted. The Commissioners are in a position to resolve the merits of the DA on a usual basis having already considered merit issues, and if further merit issues arise in the event that the DA is a usual DA. For the above reasons I consider that DHA can pursue the issue that its DA is not a Crown DA, as identified in ground 2.

Not a Crown DA? 31I will now consider for the first time in this Court whether the DA is a Crown DA as part of determining whether the Court erred in holding that the DA was a Crown DA for the purposes of s 88 of the EPA Act.

Environmental Planning and Assessment Act 1979 32The relevant sections of the EPA Act are: 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: public authority means: (a) a public or local authority constituted by or under an Act, or (b) a government Department, or (c) a statutory body representing the Crown, or (d) a chief executive officer within the meaning of the Public Sector Employment and Management Act 2002 (including the Director-General), or (e) a statutory State owned corporation (and its subsidiaries) within the meaning of the State Owned Corporations Act 1989, or (f) a chief executive officer of a corporation or subsidiary referred to in paragraph (e), or (g) a person prescribed by the regulations for the purposes of this definition. 6 Act to bind Crown This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. Div 4 Crown developments 88 Definitions (1) In this Division: applicable regional panel for development means the regional panel for the part of the State in which the development is to be carried out. Crown development application means a development application made by or on behalf of the Crown. (2) A reference in this Division to the Crown: (a) includes a reference to a person who is prescribed by the regulations to be the Crown for the purposes of this Division, and (b) does not include a reference to: (i) a capacity of the Crown that is prescribed by the regulations not to be the Crown for the purposes of this Division, or (ii) a person who is prescribed by the regulations not to be the Crown for the purposes of this Division. 89 Determination of Crown development applications (1) A consent authority (other than the Minister) must not: (a) refuse its consent to a Crown development application, except with the approval of the Minister, or (b) impose a condition on its consent to a Crown development application, except with the approval of the applicant or the Minister. (2) If the consent authority fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the consent authority may refer the application: (a) to the Minister, if the consent authority is not a council, or (b) to the applicable regional panel, if the consent authority is a council. (2A) A Crown development application for which the consent authority is a council must not be referred to the Minister unless it is first referred to the applicable regional panel. (3) An applicable regional panel to which a Crown development application is referred may exercise the functions of the council as a consent authority (subject to subsection (1)) with respect to the application. (4) A decision by a regional panel in determining a Crown development application is taken for all purposes to be the decision of the council. (5) If an applicable regional panel fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the panel may refer the application to the Minister. (6) The party that refers an application under this section must notify the other party in writing that the application has been referred. (7) When an application is referred under this section to an applicable regional panel or the Minister, the consent authority must, as soon as practicable, submit to the panel or the Minister: (a) a copy of the development application, and (b) details of its proposed determination of the development application, and (c) the reasons for the proposed determination, and (d) any relevant reports of another public authority. (8) An application may be referred by a consent authority or applicable regional panel before the end of a relevant period referred to in subsection (2) or (5).

Environmental Assessment and Planning Regulation 2000 33The relevant clauses of the EPA Regulation are: 226 Prescribed persons: section 88 (cf clause 81MM of EPA Regulation 1994) (1) The following persons are prescribed for the purposes of Division 4 of Part 4 of the Act (as referred to in section 88 (2) (a) of the Act): (a) a public authority (not being a council), (b) a public utility, (c) an Australian university within the meaning of the Higher Education Act 2001, (d) a TAFE establishment within the meaning of the Technical and Further Education Commission Act 1990. (2) The following persons are prescribed under section 88 (2) (a) of the Act (as modified by section 109R (1) of the Act) for the purposes of section 109R in relation to Crown building work for which development consent is required under Part 4 of the Act: (a) the Luna Park Reserve Trust, (b) the Sydney Light Rail Company (ACN 064 062 933), (c) the Pyrmont Light Rail Company Pty Ltd (ACN 065 183 913), (d) the Light Rail Construction Company Pty Ltd (ACN 067 246 897. [not applicable] (3) The following persons are prescribed under section 88 (2) (a) of the Act (as modified by section 109R (1) of the Act) for the purposes of section 109R in relation to Crown building work that constitutes an activity within the meaning of Part 5 of the Act: (a) a determining authority that is a proponent of the activity within the meaning of Part 5 of the Act, (b) a company SOC, within the meaning of the State Owned Corporations Act 1989, that is the subject of a certificate under section 37A of that Act in respect of that activity. 277 Public authorities (1) For the purpose of the definition of public authority in section 4 (1) of the Act, Australian Rail Track Corporation Ltd is prescribed, but only so as: (a) to enable the corporation to be treated as a public authority within the meaning of Part 3A of the Act in relation to development for the purposes of rail and related transport facilities that is declared to be a project to which Part 3A applies under State Environmental Planning Policy (Major Development) 2005, and (b) to allow the corporation to be a determining authority within the meaning of Part 5 of the Act for: (i) development for the purposes of rail infrastructure facilities, development in or adjacent to rail corridors and development for prescribed railways or railway projects that is permitted without consent by a public authority under State Environmental Planning Policy (Infrastructure) 2007, and (ii) any other development for the purposes of rail infrastructure facilities and development in or adjacent to rail corridors within the meaning of that Policy that is permitted without consent under any other environmental planning instrument. (2) To avoid doubt, the Western Lands Commissioner is prescribed as a public authority for the purposes of the definition of public authority in section 4 (1) of the Act.

Interpretation Act 1987 34The relevant sections of the Interpretation Act 1987 provide: 5 Application of Act ... (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. 12 References to New South Wales to be implied (1) In any Act or instrument: (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales. (2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words "New South Wales" or "of New South Wales" merely because those words form part of the body's name or title. 13 Sovereign and Crown In any Act or instrument: (a) a reference to the Sovereign (whether the words "Her Majesty" or "His Majesty" or any other words are used) is a reference to the Sovereign for the time being, and (b) a reference to the Crown is a reference to the Crown in right of New South Wales. 65 References to Acts generally An Act passed by Parliament, or by any earlier legislature of New South Wales, may be referred to by the word "Act" alone.

DHA's submissions (DA is not Crown DA) 35DHA submitted the DA was not a DA made by or on behalf of the Crown within the definition of Crown DA in s 88(1) of the EPA Act so that DHA did not act by or on behalf of the Crown in right of NSW. While it is an entity of the Crown in right of the Commonwealth and therefore bound under s 6 of the EPA Act, it is not the Crown for the purposes of Div 4 sections 88-89L of Pt 4 of the EPA Act. The DA can be considered as a usual DA.

(a) Not a development made "by or on behalf of the Crown" 36DHA does not act by or on behalf of the Crown in right of NSW. This is not a Crown DA within the definition of Crown DA in s 88(1). Section 88(2) clarifies which entities are included or excluded from the Crown in Div 4. There is no definition of the Crown for the purposes of s 88(1) or Div 4 generally. Section 4(1) of the EPA Act does not define the Crown. Pursuant to s 13(b) of the Interpretation Act reference to the Crown is a reference to the Crown in right of NSW.

(b) DHA not a person prescribed by cl 226(1) of the EPA Regulation 37DHA is not a person prescribed by cl 226(1) of the EPA Regulation to be the Crown for the purposes of Div 4 and therefore s 88(2)(a) of the EPA Act.

DHA not within (a), (b), (c), (d), (f), (g) of definition of "public authority" in s 4 38DHA does not fall within any of par (a), (b) or (d) to (f) in the definition of "public authority". DHA is not a local authority, nor a public authority constituted by or under an Act within par (a) of the definition. The word "Act" in par (a) means a New South Wales Act. DHA is not a government department within par (b), nor does it fall within par (d) to (f) of the definition.

39Pursuant to par (g) of the definition of "public authority", cl 277 of the EPA Regulation prescribes the Australian Rail Track Corporation Ltd (with limitations) and the Western Land Commissioner. No other person has been prescribed by the EPA Regulation to be a public authority.

40In the context of the EPA Act, DHA is not a "statutory body". The expression "statutory body" in par (c) is not defined in the EPA Act. Pursuant to s 12(1)(a) of the Interpretation Act the reference in par (c) to "statutory body" is a reference to a statutory body in and for New South Wales. 41No contrary intention to oust the Interpretation Act as to the meaning of "statutory body" appears in the EPA Act. Paragraph (c) of the definition of "public authority" thus refers only to a statutory body in and for New South Wales. The definition of "public authority" does not include a statutory body established by a Commonwealth statute, and hence does not include DHA. 42Nor does DHA represent the Crown for the purposes of par (c). The word "Crown" in par (c) is not defined. As noted above, s 4(1) of the EPA Act provides no definition of "Crown" where used generally in the EPA Act. Assistance may again be sought in s 13(b) of the Interpretation Act, which provides that a reference in a NSW Act to the Crown is a reference to the Crown in right of NSW. 43No contrary intention appears in the EPA Act, for the following reasons. Section 88(2)(a) provides clarification as to what is included in a reference in Div 4 of Pt 4 of the EPA Act to "the Crown". Section 88(2)(b) provides clarification as to what is excluded in a reference in Div 4 to "the Crown". However s 88(2)(a) and (b) do not define "the Crown". The words "the Crown" in the definition of "Crown development application" in s 88(1) are apt to cover the Crown as a body politic and other entities that are not expressly included, provided they have not been expressly excluded. Section 88(2) does not purport to set out a "code" as to all the entities which are "the Crown". 44No entities have been prescribed pursuant to s 88(2)(b) as excluded from a reference in Div 4 to the Crown. Entities have been prescribed pursuant to s 88(2)(a) to be included in a reference to the Crown for the purposes of Div 4, as set out in cl 226(1) of the EPA Regulation. They are public authorities (not being councils) considered above, public utilities, and universities and TAFE establishments identified in relevant New South Wales statutes described in cl 226(1)(c) and (d). Clause 226(1) cannot be assumed to be an exhaustive account of the persons that could be covered by a reference in Div 4 to the Crown. However "public authority" in cl 226(1)(a), by reason of the broad definition of that expression in s 4(1) of the EPA Act, provides clarification that broad classes of persons are included. However none of those classes of persons covers DHA. Nor does DHA fall within the remaining coverage of the expression "made by or on behalf of the Crown" in s 88(1). 45Even if the construction advanced above is not accepted, and s 88(2) is taken to provide an exhaustive definition of references to the Crown, s 88(2) applies only to references to the Crown "in this Division", that is in Div 4 of Pt 4. Section 88(2) cannot govern the meaning of the word "Crown" generally in the EPA Act. Section 13(b) of the Interpretation Act applies to the construction of the words "the Crown" outside Div 4 of Pt 4. No contrary intention appears generally in the EPA Act. It is the general meaning of "the Crown" that applies where the words occur in par (c) of the definition of "public authority" in s 4(1). 46Since the DA is not a "Crown development application", s 89 is inapplicable to its determination. The DA was required to be determined in the ordinary way under Div 1 and 2 of Pt 4 of the EPA Act.

Council's submissions (DA is Crown DA) 47The Interpretation Act operates only where the statute in question does not manifest a contrary intention: s 5(2) Interpretation Act. The Interpretation Act s 13(b) states that a reference to the Crown is a reference to the Crown in right of NSW in any Act. There is a contrary intention exhibited in the EPA Act. Firstly, it is the intention of the Parliament of NSW that the EPA Act should bind the Crown in all its capacities, s 6 of the EPA Act, which includes the Crown in right of the Commonwealth. DHA remains the Crown by operation of the definitions in s 88(1) of the EPA Act together with s 6 of the EPA Act. 48Contrary intention need not be express per Forsyth v Deputy Commissioner of Taxation [2004] NSWCA 474; (2004) 62 NSWLR 132, at [28] Spigelman CJ held it can appear from the scope, nature and subject matter of legislation. McHugh J held similarly in Pfeiffer v Stephens [2001] HCA 71; (2001) 209 CLR 57 at [56]. A reference in an Act that its terms bind the Crown are sufficient to make the provisions of the Act applicable to the Crown, and to subject the Crown to the effect of its provisions. 49Further, s 88(2) states that a reference to the Crown includes persons prescribed by the regulations to be the Crown. Section 4(1) of the EPA Act defines "public authority" as including a statutory body representing the Crown. If DHA is not the Crown it is clearly a statutory body representing the Crown. The section reflects a legislative intention other than one which confines a reference to the Crown as meaning no more than what appears in s 13(b) of the Interpretation Act. Section 88(2) necessarily displaces the default position in the Interpretation Act. The section is similar to that considered in Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte the Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410. 50Further positive indication of a contrary intention appears in s 88(2)(a) of the EPA Act, which includes a reference to a person prescribed by the regulations to be the Crown for the purposes of Div 4. Clause 226 of the EPA Regulation prescribes the persons to whom s 88(2)(a) refers and includes a public utility, undefined in the EPA Act. A public authority in cl 226 is defined in s 4 to include a statutory body representing the Crown. By contrast, it refers to various other authorities which are expressly limited by their NSW connection. Section 88(2)(b) provides that reference may be made to a capacity of the Crown that is prescribed by the EPA Regulation not to be the Crown for the purposes of this division. That language echoes the language of s 6 of the EPA Act and refers to the Crown in all its other capacities not only in right of NSW. No regulation excludes the Crown in right of the Commonwealth. 51Section 88(2) displays such a contrary intention because: (a) it authorises in s 88(2)(a) an unlimited range of persons who would not necessarily be "the Crown in right of the State of New South Wales"; and (b) it only excludes from the totality of the various capacities in which the Crown may appear, those specific capacities (if any) prescribed by the Regulation. 52Further, authority suggests that DHA is the Crown for the purposes of the Division. The principles in Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 per Kitto J at 337-8 apply. In Henderson the High Court was considering whether the appellant was the Commonwealth for the purposes of s 64 of the Judiciary Act 1903 (Cth). Brennan CJ said that it had been sufficient to assume that it is. McHugh J asserted that it was. The reasoning of Kirby J at 501 applies. 53Division 4 Pt 4 of the EPA Act was intended to operate as a separate scheme for the determination of Crown DAs. DHA is the Crown for the purposes of that Division.

Not a Crown DA 54Construction of the particular statutory regime is determinative of whether DHA's DA is a Crown DA for the purposes of Div 4 of Pt 4 of the EPA Act. The issue I must determine is whether "the Crown" in s 88 of the EPA Act means the Crown in right of NSW, as the Crown is defined in the Interpretation Act. I consider that the submissions of DHA's counsel that it is not the Crown for the purposes of Div 4 are correct. 55The Crown is not defined in the EPA Act in s 4 (definitions) or in s 6. Section 6 identifies that the Crown is bound by the EPA Act, meaning the Crown in all its capacities. Division 4 of Pt 4 headed "Crown developments" does not define the Crown. The definition of Crown DA in s 88(1) refers to a DA made by or on behalf of the Crown and takes the issue no further. 56Section 88(2) provides a mechanism for including, and excluding, an entity (person) as the Crown for the purposes of the Division through the making of regulations. Division 4 provides a discrete scheme within the EPA Act to consider Crown DAs. 57EPA Regulation cl 226 specifies entities that are prescribed for the purposes of s 88. One provision of cl 226 that could potentially apply to DHA is cl 226(1)(a), a public authority. That term is defined in s 4(1) of the EPA Act (a) - (g) and the definition does not include DHA for reasons given by DHA. As DHA submitted in par 38 - 42, none of the subsections (a) - (d) and (f) in the definition apply. In particular a public authority constituted under an Act (subsection (a)) means a NSW Act, pursuant to the Interpretation Act s 65 and therefore cannot include DHA. Contrary to the Council's submission, DHA is not a statutory body representing the Crown; subsection (c). The Interpretation Act in s 12(1) defines statutory body as a reference to a statutory body in and for New South Wales. Nor can subsection (e) apply, as DHA is not a State owned corporation. 58I adopt in large part the submissions of DHA in relation to s 88 and its operation, set out at par 43 - 45, to the extent that whether or not s 88(2) is an exhaustive definition of the Crown, it applies only to the Crown in Div 4 Pt 4. Section 88(2) explicitly states that it is concerned (only) with the Crown in Div 4. As submitted s 88(2)(a) and (b) are not drafted to exhaustively define the Crown given the references to "include" and "does not include". To the extent that the Crown has been defined, persons identified in cl 226 of the EPA Regulation do not include DHA for the reasons given in par 57. No regulation has been made which excludes a capacity of the Crown from the operation of Div 4. Further as also submitted by DHA, s 88(2) does not govern the meaning of Crown generally in the EPA Act. Section 6 does not inform any definition of Crown in s 88. This reasoning means that I do not accept the Council's submissions in par 51 that a contrary intention in relation to the application of the Interpretation Act is identified in s 88(2)(a) because a wide range of persons could be included as the Crown in right of NSW. To the extent that such persons have been prescribed in cl 226 they do not encompass DHA. The possibility that they could provide for the inclusion of DHA is not persuasive given that particular persons have been identified in cl 226. 59The Council's submission that s 88(2)(b) provides for exclusion of a wider range of entities appears to be a neutral factor in weighing up the scheme given the lack of definition of Crown in s 88 and the EPA Act generally. 60It is not in dispute that DHA is the Crown in right of the Commonwealth. The Council referred to cases which have considered whether particular entities are the Crown. In Inglis the High Court considered whether the Commonwealth Trading Bank of Australia was "the Commonwealth, or a person ... sued on behalf of the Commonwealth" for the purposes of s 75(iii) of the Constitution. Barwick CJ, Kitto and Windeyer JJ, Owen J dissenting, held that the Commonwealth Trading Bank when sued as the emanation by which the Commonwealth operates in the field of general banking is within s 75(iii) of the Constitution. Kitto J considered that the pertinent question was what intention appeared from the provisions relating to the Commonwealth Trading Bank in the relevant statute (at 338). While the Council relied on these principles they do not assist in construing the statutory scheme in the EPA Act in this case which does not hinge on finding that DHA is the Crown in right of the Commonwealth. 61Another case relied on by the Council, Superannuation Fund Investment Trust v Commissioner of Stamps of the State of South Australia (1979) 145 CLR 330, considered whether a particular body was a statutory corporation. That is not in issue here given the particular statutory context before me. 62Henderson considered whether DHA was the Crown in right of the Commonwealth in relation to s 64 of the Judiciary Act. Gleeson CJ assumed that DHA is or represents the Crown in right of the Commonwealth for the purposes of s 64 of the Judiciary Act (at 428). Dawson, Toohey and Gaudron JJ held that it was unnecessary to decide whether DHA was the Crown in right of the Commonwealth for the purposes of s 64 (at 448). McHugh J held that DHA is plainly the Commonwealth within the meaning of s 64 (at 460). Gummow J held that DHA "may be classified as 'the Commonwealth' within the meaning of s 64" (at 474). Kirby J also assumed for the purposes of the Judiciary Act that DHA is "the Commonwealth" (at 510). As already observed above at par 60, that is not the issue requiring resolution here. 63At issue is whether DHA is the Crown for the purposes of Div 4 of Pt 4 of the EPA Act. As DHA submitted, it does not follow from Henderson that DHA is the Crown in all its capacities in all statutory contexts. 64As a result of my findings above, the only provision relied on by the Council which supports its position is s 6. Section 6 alone does not suggest an intention contrary to the application of the definition of Crown in the Interpretation Act in Div 4. While the Council submitted that contrary intention can be implied, as held in Forsyth and Pfeiffer, the statutory regime does not give rise to such an inference. As DHA submitted the EPA Act can continue to operate effectively if the Crown means the Crown in right of NSW in Div 4. DHA is otherwise bound by the terms of the EPA Act by virtue of s 6. 65DHA is successful in relation to the second ground of appeal and it is unnecessary to consider the first ground. The DA in question can be considered as a usual DA. Section 89 of the EPA Act does not apply. 66While there was consideration of merit issues by the Commissioners, which were determined in favour of DHA, the issue arises whether I should grant conditional development consent or refer the matter back to the Commissioners. The Council submitted at the end of the hearing that as the matter had previously been considered by the Commissioners on the basis that the DA was a Crown DA, the merit issues raised may vary if the DA is not a Crown DA. This suggests the matter should be referred back to the Commissioners for their further consideration of the merits, if any is required. If not, they are in a position to grant conditional development consent in accordance with the draft conditions tendered as exhibit A unless these require further amendment. 67The appeal is upheld. I remit the matter to the Commissioners solely for the consideration of merit issues if necessary to do so and otherwise for the grant of conditional development consent.

Orders 68The Court makes the following orders: (1)Appeal upheld. (2)Matter remitted to Commissioners for final determination including of merit matters, if any.

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