Eco-Villages Australia Pty Ltd v Pittwater Council

The issues 6Having regard to the submissions made on behalf of the parties at the hearing of the notice of motion, there were three issues that emerged for consideration. They were: (i) whether the conduct of the Council, following receipt of the Amended Development Application, evidenced agreement to the amendment proposed by that application as was required by cl 55 of the Environmental Planning and Assessment Regulation 2000 ( the Regulation ); (ii) assuming the conduct of the Council did evidence its agreement to the amendments sought by Eco-Villages, whether that agreement had any legal consequence for the purpose of cl 55 of the Regulation or otherwise, given that the consent authority for the purpose of determining the development application was the Joint Regional Planning Panel (the JRPP); and (iii) whether the provisions of s 39(2) of the Land and Environment Court Act 1979 ( the Court Act ) operated so that, upon commencement of the appeal pursuant to s 97 of the EPA Act, the Court was the sole repository of power to agree to the amendment of the development application for the purpose of cl 55 of the Regulation. It was not submitted on behalf of the Council that the changes sought to be made by Eco-Villages were not an amendment of the development application within the meaning of cl 55. 7Although not an issue identified by the parties, having regard to the circumstances existing at the time the motion was argued, a matter that does need to be addressed arises from the subsequent discontinuance of the appeal proceedings. The issue raised by that circumstance is whether the reserved judgment should be delivered at all as any decision following discontinuance is moot. 8Like most courts, this Court does not have jurisdiction to provide advisory opinions. However, a recent decision of the Court of Appeal has indicated that circumstances may exist where, although the decision ultimately made is moot, circumstances may indicate the existence of a discretion to deliver judgment on an issue that arose prior to the decision becoming moot ( People with Disability Australia Inc v Minister for Disability Services [2011] NSWCA 253). That discretion may be exercised when there was a real contest at the time at which the proceeding or interlocutory application was made but subsequent events have resulted in the controversy between the particular parties being resolved. The principles were stated by Beazley JA (Allsop P and Handley AJA agreeing) in the following terms (at [12]-[14]): "12 The Court does not have an advisory jurisdiction. At the time this appeal was filed, there was a real dispute between the parties, namely, whether the Appeal Panel had erred in holding that there was no reviewable decision of the Minister in respect of the two centres subject of the application. As the centres have been closed, there is now no relevant controversy between the parties in respect of which a decision of this Court would have any effect. In short, in respect of these two centres, the appeal is moot and of no utility. 13. As a general rule, the Court, in such circumstances, would not entertain the appeal. However, the rule is a general one only and the Court retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned. 14. One of the factors which will cause the Court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases: ... " 9The decision in that case was subsequently followed in D'Anastasi v Environment, Climate Change & Water NSW [2011] NSWCA 374 per Young JA (Campbell JA agreeing) at [28] and Sackville AJA at [104]. 10At the time at which the present notice of motion was argued, it was necessary to decide the question posed in order to determine whether the provisions of s 97B of the EPA Act were engaged. Thus, there was a live controversy between the parties requiring resolution at that time. Although the controversy then existing between the parties, including that as to costs of the amendment, has been resolved by discontinuance of the proceedings, the parties have requested that judgment be delivered, apparently because the issue raised by the notice of motion is likely to arise in other proceedings. 11Although the determination of the notice of motion now "comes perilously close to inviting the Court to give an advisory opinion" ( D'Anastasi at [104]), the possible utility of a judgment on the matters agitated favours an exercise of discretion in favour of delivery of judgment.

Further facts 12The development application form first lodged with the Council in September 2010 indicated the estimated cost of the proposal to be $14,381,785. That figure was not altered when the Amended Development Application came to be lodged in December 2010. 13In short, it was accepted that the capital investment value of the proposed development, within the meaning of cl 3 of the Regulation, exceeded $10M. This had the consequence that a joint regional planning panel had the function of determining the development application pursuant to the provisions of State Environmental Planning Policy (Major Development) 2005 ( the Major Development SEPP ). 14The development application was referred by the Council to a number of external authorities and instrumentalities, including those whose general terms of approval were required because the development application was integrated development: s 91A of the EPA Act. One such authority was the Heritage Council. Assessment of the application on behalf of the Heritage Council was undertaken by the Heritage Branch of the Department of Planning. That Branch indicated that it would not support the application as proposed but would, in principle, support an application involving the redesign of four of the houses proposed for the Site. It was that recommendation which led to the preparation of the Amended Development Application. 15As I have earlier indicated, the Amended Development Application involved the request for a staged development consent pursuant to s 83B(2) of the EPA Act, involving completion of all work contemplated by the original application as Stage 1, save for the four houses identified by the Heritage Branch as requiring revision. The Amended Development Application sought concept plan approval only for those four houses, with Stage 2 of the development application being the submission of detailed plans for those houses. The original application had not sought the grant of a staged development consent. 16Following receipt of the Amended Development Application, the Council took a number of steps. In accordance with the Council's practice, the development application had been recorded on the Council's website. This was a generally accessible website enabling any person to track the progress of a development application from the time of lodgement until its determination by the Council. At some time after 21 December 2010 the description of the development application that appeared on the website changed so as to accord with the description of the Amended Development Application. This is apparent from the references to the development as a "Staged Development Application" followed by a description of all activities proposed in each of Stage 1 and Stage 2. The reference to staging and the description of each stage is consistent only with the Amended Development Application. 17The other steps taken by the Council after 21 December 2010 that are of present relevance involve the referral of the Amended Development Application to a number of authorities and instrumentalities, including those to whom the original application had been provided as authorities whose input was required as a result of the integrated development application process. By way of example, on 14 January 2011 the Council wrote to the Water Management Division of the New South Wales Office of Water stating in the first paragraph of its letter: "This is a statutory referral of the amended application to the integrated referral bodies." The letter described the proposal by reference to the "staged development application" and indicated that the application "was amended by the applicant and received by Council on 24 December 2010". "Comments" in relation to the amended application were sought. 18The Amended Development Application was referred to all other statutory authorities in similar terms. In addition, the Planning Department of the Council sought comments in relation to the Amended Development Application from other departments within the Council and also from consultants that had been retained. All of these referrals were made in terms identifying the Amended Development Application as the application to which consideration should be given. 19Each of the referral letters that the Council wrote indicated that the JRPP was the consent authority but that the Council would "assess the application". As would be apparent, the context in which those observations were made was the Amended Development Application. 20Against that factual background, I turn now to consider the three issues that I have earlier identified.

Issue One: The Council's agreement to amendment of the development application 21The amendment of a development application is addressed in cl 55 of the Regulation. The clause relevantly provided: " 55 What is the procedure for amending a development application? (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. ... (3) If the development application is for: ... (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body." The Regulation does not make any provision for the manner in which the "agreement" referred to in cl 55(1) should be evidenced. 22Eco-Villages relies upon the evidence to which I have referred as manifesting the agreement of the Council to the amendment of the original application in the form of the Amended Development Application. For its part, the Council does not concede that it did so agree but accepts that on the evidence to which Eco-Villages refers, it is well open to me to find, as a fact, that the Council "may be taken to have agreed" to the amendment. The words in parenthesis are those used by Mr C W McEwen SC, counsel for the Council. Mr McEwen did not advance any argument against the sufficiency of the evidence to manifest the Council's agreement. 23I accept the submission of Mr A E Galasso SC, who appeared on behalf of Eco-Villages, that the evidence does indicate the agreement of the Council to the amendment. Its website following lodgement of the Amended Development Application and its many referral letters and memoranda following receipt of the amended application are consistent with its agreement to the amendment to the application that Eco-Villages sought. 24Further, in notifying those instrumentalities whose input was required pursuant to the integrated development provisions of the EPA Act, I would assume, in the absence of any evidence to the contrary, that the Council did so conformably with its obligation under subclause (3) of cl 55 of the Regulation. The obligation imposed by the subclause to forward a copy of the Amended Development Application to those authorities is predicated upon the amendment having been made conformably with subclause (1), that is, with the agreement of the consent authority. 25The substantive debate between the parties relates to the identity of "the consent authority" whose agreement to an amendment is required in accordance with subclause (1). It is that debate which gives rise to issues two and three as I have identified them.

Issue Two: Joint Regional Planning Panel as "consent authority" 26It is not disputed that the JRPP was the "consent authority" for the purpose of determining the Amended Development Application, at least in the absence of any appeal to this Court. The matter to be determined by reference to this issue is whether its role as consent authority extended to decisions in relation to matters that relate to the processing of the application and are preliminary to the determination of the development application. In the present case, the JRPP had not considered nor had it been asked to consider the amendment of the original application in the form of the Amended Development Application. 27The consideration of this issue requires identification of the statutory and regulatory context, as it was at the relevant time. 28Section 23G of the EPA Act provided for the constitution of a joint regional planning panel for particular parts of the State as well as the functioning of such a panel. By subsection (2), the functions conferred upon a panel included: "(a) any of a council's functions as a consent authority that are conferred on it under an environmental planning instrument". 29Subsections (5A) and (5B) of s 23G provide: "(5A) Subject to the regulations, a regional panel is, in the exercise of functions conferred under subsection (2)(a), taken to be the council whose functions are conferred on a regional panel as referred to in subsection (2)(a). (5B) A regional panel is to exercise functions conferred as referred to in subsection (2)(a) to the exclusion of the applicable council (subject to any delegation under this Act)." 30When considering the provisions of s 23G(5A) it is necessary to notice cl 123D of the Regulation. For the purpose of that clause, it provides that a regional panel "is not taken to be the council" for the purpose of a number of identified sections under which certain functions are to be performed by "the consent authority". However, for present purposes the provisions of cl 123D and the sections which it qualifies can be put aside for the purpose of considering the issues raised in the present case. 31The functions conferred upon the JRPP in the present case, for the purpose of s 23G(2) of the EPA Act, are those found in the Major Development SEPP. Part 3 of that Policy is headed "Regional development". By cl 13B, the Part is expressed to apply to development having a capital investment value in excess of $10M. As a consequence, the present development application is one to which the Part applies. 32Clause 13F, also in Pt 3, identifies functions that may be exercised by a regional panel as a consent authority. Subclause (1)(a) of that clause allows the exercise of consent authority functions by a regional panel for "the determination of development applications" to which the Part applies. 33Subclause (2) of cl 13F contains an important qualification upon the operation of subclause (1). Relevantly, it provides: "(2) However, the following functions of a council as a consent authority are not conferred by this clause on a regional panel: (a) the functions conferred by section 79B of the Act (other than section 79B(9)), ... (d) the receipt and assessment of development applications, (e) the determination and receipt of fees for development applications, (f) notification of determination of development applications, ... ". 34Subclause (3) of the same clause then provides: "(3) The council remains the consent authority for development to which this Part applies, subject to the exercise by regional panels of functions conferred on them by this clause." 35On behalf of the Council, it is submitted by Mr McEwen that the function of the JRPP in the present case is governed by the broad terms in which cl 13F(1) of the Major Developments SEPP is expressed. Any function which requires a determination, even if it is one precedent to the ultimate determination of the development application, is to be undertaken by the JRPP unless expressly excluded by the provisions of subsection (2) of the clause. As the function of agreeing to an amendment to the development application pursuant to cl 55 is not the subject of express qualification or exclusion in subsection (2), it would follow that, in the ordinary course, the JRPP is the "consent authority" for the purpose of the provisions of cl 55 of the Regulation. 36While there is force in these submissions, I do not accept them as determining the present issue. The Major Development SEPP clearly distinguishes between the role of the JRPP as consent authority to determine a development application (cl 13F(1)(a)) and the retained functions of the Council, as consent authority, pertaining to that development application (cl 13F(2)). Each of the JRPP and the Council has a role as "consent authority" for the purpose of applying the relevant statutory and regulatory provisions (cl 13F(3)). 37Relevantly, a "consent authority" function retained by a council which is otherwise a consent authority is the "receipt and assessment of development applications" (cl 13F(2)(d)). By retaining the right of a council to "assess" a given development application, the terms of cl 13F indicate something more than a mere mechanical process. Judgement or opinion on the part of the council is called for in respect of a development application to which the Major Development SEPP applies short of that judgment or opinion that results in the "determination" of that development application. 38In the context of cl 13F, it seems to me that "the receipt and assessment" of a development application by a council involves both the "mechanical" processing of the application and the formation of those judgments and opinions in respect of it that are precedent to the determination of that application by a planning panel. While it is correct to observe that cl 13F(2) does not, in terms, retain for a council, as a consent authority, the power to exercise any function identified in the Regulation directed to the "assessment" of a development application, the application of those provisions of the Regulation is, so it seems to me, implicit. 39By was of example, cl 54(1) of the Regulation enables a consent authority to request such additional information about the development application "as it considers necessary to its proper consideration". Clearly, such a request can only be made once an opinion is formed or judgment made as to the sufficiency of the material provided in or with the development application as submitted by the applicant. This necessitates "assessment" of the development application and by operation of cl 13F(2)(d) is a function properly to be undertaken by a council in its role as "consent authority". 40By parity of reasoning, I am of the opinion that the process of assessment retained by a council as consent authority under cl 13F(2) includes the function of agreeing to an amendment of the application sought by an applicant in accordance with cl 55(1) of the Regulation. In no way can that agreement to an amendment be comprehended as "the determination of a development application" within the meaning of cl 13F(1)(a) of the Major Development SEPP 41Under cl 55(1) of the Regulation, an amendment may be sought "at any time before the application is determined". The function of agreeing to an amendment sought may involve consideration of a number of factors. While they may pertain to the extent to which resources have been devoted to processing of the development application up to the time at which the amendment is sought, the one matter always calling for opinion or judgement ("assessment") is whether the amendment sought is so significant as to convert the application first made into a new or original application ( Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292 at [8]). That judgement is, in principle, no different in the manner of its making than that called for by cl 54 when determining whether, having regard to the application as lodged, additional information is required to aid its proper consideration. Neither involves a determination of the ultimate merit of the application but only whether the judgement called for by a provision of the Regulation, directed to the processing of the application, is engaged. 42For these reasons I am satisfied that the role of the Council as consent authority was preserved by cl 13F(2)(d), such that it was empowered to agree to the amendment of the development application sought by Eco-Villages pursuant to cl 55(1) of the Regulation. As I indicated when first addressing this issue, the conclusion that I have just expressed assumes that, notwithstanding the appeal to this Court by Eco-Villages, the provisions of the Court Act have no relevant impact upon the conclusion. Whether this assumption is correct is to be addressed by reference to issue three to which I now turn.

Issue Three: Operation of s 39(2) of the Court Act 43As my earlier recitation of facts indicates, the appeal to this Court by Eco-Villages was filed one day after its Amended Development Application was lodged with the Council. Eco-Villages does not suggest that the Council had agreed to the amendment of the development application prior to filing the appeal. 44In these circumstances, the Council submits that only the Court could agree to the amendment of the development application in the manner proposed by Eco-Villages. It founds this submission on s 39(2) of the Court Act which provides: "(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal." The reference to "an appeal" in that subsection includes reference to an appeal brought to the Court pursuant to s 97 of the EPA Act: s 39(1). 45The entitlement of Eco-Villages to appeal to this Court was founded upon the Council's "deemed" refusal of the development application. The Council was "deemed" to have refused the application by operation of the provisions of s 82 of the EPA Act. That section has significance in the determination of the present issue. The section relevantly provides: " 82 Circumstances in which consent taken to have been refused (1) A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of s 97, taken to have determined the application be refusing consent on the date on which the period expires. (2) Nothing in subsection (1) prevents a consent authority from determining a development application after the expiration of the relevant period referred to in that subsection, whether on a review under s 82A or otherwise. (3) A determination pursuant to subsection (2) does not, subject to subsection (4), prejudice or affect the continuance or determination of an appeal made under s 97 in respect of a determination that is taken by subsection (1) to have been made. (4) If a determination pursuant to subsection (2) is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made) withdrawn at any time prior to the determination of that appeal." The "relevant period" for present purposes was 60 days from 22 September 2010: cl 113 of the Regulation. 46Mr Galasso SC, who appeared on behalf of Eco-Villages, submits that where an appeal is brought under s 97 of the EPA Act, founded only upon the deemed refusal of a development application by a consent authority, the function of the Court when addressing an amendment to a development application differs from that which obtains when such an appeal is founded upon an actual refusal. In the latter case, the power of the consent authority to address any further aspect of the development application is spent. This has the consequence that it is only the Court, exercising its power under s 39(2) of the Court Act, that can agree to the amendment of a development application currently before the Court for determination. 47However, s 82(2) of the EPA Act expressly preserves the power of the consent authority to determine a development application even after an appeal has been brought pursuant to s 97. He submits that the power to determine the application carries with it the power to agree to an amendment preceding that determination. I accept that submission as correct. 48Clearly enough, the purpose of s 82(2) is to preserve the right of a consent authority to determine a development application when the power so to do has not been spent. That right, so it seems to me, carries with it the entitlement to exercise those functions that are incidental to the determination of the application. 49The right to determine a development application carries with it the entitlement to grant consent subject to the imposition of conditions: s 80(1)(a) of the EPA Act. The consent authority may determine to grant the consent for part only of the development that is the subject of the application: s 80(4). Either as a result of the exercise of power afforded by the latter provision or by the imposition of conditions upon the grant of consent, the effect of a determination made in exercise of the right preserved by s 82(2) may be that the development proposed by an applicant is altered ("amended") from that originally sought. The power to impose conditions of consent that have the potential to alter the development from that proposed by an applicant may be found in s 80A(1), paragraphs (a) and (g), and also in the provisions of s 80A(4). It would make no apparent sense to interpret s 82(2) as authorising the consent authority to alter the development proposed by the manner in which it frames its determination of the application yet denying to it the function of agreeing to an amendment of that application prior to making that determination. 50There is further textual support for the interpretation that I favour from the provisions of s 82(2) itself. The entitlement of a consent authority under the subsection to determine a development application taken to have been refused for the purpose of s 97, includes the right to make that determination "on a review under s 82A". A review under s 82A does not confine an applicant for consent seeking a review to that development which is the subject of the determination sought to be reviewed. In requesting a review by the consent authority, an applicant may make amendments to the original development application: s 82A(3A). Having regard to this provision, I would not interpret the legislative intent to have been that amendments made for the purpose of determining a development application on review may be accepted but the consent authority lacks power to agree to an amendment under cl 55 of the Regulation sought prior to the application first being determined. 51Interpreting s 82(2) in a manner that allows a consent authority to agree to an amendment of a development application while an appeal is pending is not inconsistent with the other provisions of the section as they stood when Eco-Villages lodged its appeal in December 2010. It seems to me that the purpose of subsections (3) and (4) of s 82 was to ensure that the terms in which any determination made by the consent authority after the appeal was commenced did not determine the outcome of the appeal: s 82(3). An applicant for consent retains an entitlement to pursue the appeal even if the determination made is to grant development consent: s 82(4). These provisions do not speak against an agreement by the consent authority to an amendment of the development application prior to the determination able to be made pursuant to s 82(2). 52This conclusion as to the effect of s 82(2) is not inconsistent with the provisions of s 39(2) of the Court Act. It will be noticed from the terms in which the latter subsection is expressed that the functions and discretions that the Court "has" include those which (relevantly) the consent authority "had" in respect of the development application which is the subject of the appeal. The function of the consent authority to determine the development application is a function which it retains ("has") notwithstanding the institution of an appeal under s 97. The grammar and syntax indicates that s 39(2) of the Court Act does not remove a function retained by the consent authority. For reasons already expressed, that function includes agreeing to an amendment of a development application in accordance with cl 55(1) of the Regulation. 53It is clear that s 39(2) of the Court Act will have work to do in respect of an appeal brought pursuant to s 97 of the EPA Act. Where the power of a consent authority in respect of a development application is spent by determination, the provisions of s 39(2) will be a source of power for the Court to exercise those functions which the consent authority otherwise "had" in respect of the development application. Thus, where an appeal pursuant to s 97 of the EPA Act is founded upon a determination actually made by a consent authority, there would be no relevant residual functions retained by it in respect of the development application. In such a case if amendment to a development application is sought by an applicant, agreement to the amendment rests wholly with the Court ( Radray Constructions Pty Ltd v Hornsby Shire Council at [3] and [8]). 54Likewise, where an appeal has been brought to the Court, founded upon the "deemed" refusal of a development application, and in respect of which the Council takes no further step directed to determination, the provisions of s 39(2) of the Court Act would be a source of power enabling the Court to exercise the functions of the Council in respect of that development application, including agreement to an amendment sought by the applicant. This is but a further example of the provisions of s 39(2) of the Court Act and s 82(2) of the EPA Act operating in a complementary manner. 55I am conscious of the fact that the Court's Practice Note for Class 1 Proceedings contains provisions directed to the amendment of a development application that is the subject of appeal to the Court. Paragraph 27 of the Practice Note would, by its terms, require that any amendment to the development application in respect of which the appeal was brought could not be relied upon unless the leave of the Court is obtained to that amendment. 56For reasons earlier given, s 82(2) of the EPA Act authorises, in the present circumstances, the consent authority to agree to the amendment of the development application. This statutory conferral of power cannot be removed or circumscribed by the provisions of the Practice Note. I did not understand the latter proposition, as a statement of principle, to be contested by Mr McEwen on behalf of the Council.

Conclusion 57Having received the Amended Development Application from Eco-Villages on 21 December 2010, the subsequent actions of the Council in respect of that amended application are only consistent with its acceptance of the amended application as that which was to be determined. For the purpose of cl 55(1) of the Regulation, that course of conduct was sufficient to manifest the agreement of the Council to the amendment. There was no provision of either the EPA Act or the Regulation which prescribed the manner in which that "agreement" should be made evident. 58Further, the "consent authority" able to agree to the amendment conformably with cl 55(1) was the Council. Although cl 13F(1) of the Major Development SEPP required that the JRPP be the consent authority to determine the development application, cl 13F(2)(d) of that Policy preserved the function of the Council as a consent authority to receive and assess that development application. In undertaking the "assessment" of the development application, the Council was able to exercise the function of agreeing to the amendment sought by Eco-Villages. 59Moreover, the Council retained its role as an appropriate functionary to agree to the amendment sought in the Amended Development Application notwithstanding the institution of the appeal to this Court pursuant to s 97 of the EPA Act. That function was preserved by s 82(2). It was a function that was not usurped by s 39(2) of the Court Act.

Costs 60As I indicated early in these reasons, the issues that I have addressed were advanced in order to determine whether the provisions of s 97B(1) of the EPA Act were engaged. If those provisions were engaged, the Court would have been required to make an order for costs in favour of the Council, conformably with s 97B(2). 61The entitlement of the Council to an order for costs under s 97B(2) was predicated upon a decision made by the Court to allow Eco-Villages, as an appellant under s 97, "to file an Amended Development Application" (s 97B(1)). For the reasons I have given, no order of the Court was necessary to allow an amended application to be filed: the Amended Development Application had been lodged with the Council and it, as consent authority, agreed to that amendment.

Orders 62The parties have agreed that no substantive order should be made in respect of the notice of motion, including any order for costs. As the proceedings were discontinued, that is an appropriate course to take. 63The only formal order to be made is:

1. Exhibits may be returned.

Amendments 21 March 2012 - typographical error: Class "4" amended to Class "1" Amended paragraphs: 55 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2012