F & D Bonaccorso Pty Ltd v City of Canada Bay Council

F & D Bonaccorso Pty Ltd v City of Canada Bay Council - [2007] NSWLEC 649 - NSWLEC 2007 case summary — Zoe

[19]

5 The leading case on s 25B of the Court Act is Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333 where the Court of Appeal decided that it is not limited to invalidity arising from preliminary steps. In that case the error of the council which led to potential invalidity of a development consent was that a measure with respect to pedestrian safety by construction of a school drop-off facility was not included in the conditions of consent, but rather in a deed between the council and the second respondent. The primary judge, Lloyd J held that it was an appropriate case for the application of s 25B because the error was "technical", being a simple failure to impose a condition to give effect to the council's intention. His Honour suspended the operation of the consent and specified terms which would validate the consent: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 147 LGERA 118 at [25] - [26]. The council complied with those terms. Thereafter Lloyd J made orders upholding the validity of the consent in which he again described the error as "technical": [2006] NSWLEC 539 at [8]. His decision was upheld on appeal (2007) 150 LGERA 333. Hodgson JA held at [21]: "The general intention was that technical breaches should be capable of being rectified, and there can be technical breaches which are not matters arising from preliminary steps". Tobias JA agreed with the reasons of Hodgson JA: at [27]. McColl JA agreed with both Hodgson and Tobias JJA: at [40]. Tobias JA added some further observations which indicated, obiter, that s 25B might be applied in some circumstances where there had been failure to consider matters required to be considered under s 79C of the Environmental Planning and Assessment Act 1979 (NSW): at [32] - [33]. 6 In Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257, which was approved by Tobias JA in Kindimindi at [33], McClellan CJ held at [85]: Apart from the question of whether s 25B is available, where the council's decision-making process has miscarried, as opposed to a failure to consult with or obtain the concurrence of another authority, I do not consider it to be an appropriate course in this case… 7 In the present case, the council's decision-making process has miscarried.

[20]

8 Subsequent to the decision of the primary judge, but prior to the Court of Appeal's decision, in Kindimindi, Talbot J in Belmore Residents' Action Group Inc v Canterbury City Council (2006) 147 LGERA 226 declined to make an order under s 25B in circumstances where the consent was found to be invalid for failure to take into account Draft State Environmental Planning Policy (Application of Development Standards) 2004. His Honour held: 32 Although Lloyd J decided to apply the provisions of s 25B in Kindimindi it is appropriate to appreciate the circumstances under which he made that decision. He determined at [25] that the error of the council amounted to a discrete matter of a technical nature that could be considered in isolation from other matters. It was a simple failure to impose a condition to give effect to the council's intention and accordingly was an appropriate case for the application of s 25B. The circumstances considered by Lloyd J in Kindimindi are clearly distinguishable from the nature of the invalidity under consideration in the other authorities and in particular in the present case. 33 In Centro Properties I also declined to make an order pursuant to s 25B of the Court Act as the steps to be undertaken involved the weighing of the provisions of the same Draft SEPP under consideration in this case as part of the total consideration required pursuant to s 79C and generally. Whatever matters are found to be relevant, if any, must be balanced and weighed against all the other matters that are relevant to the Council's consideration. As I said in Centro this step necessitates a reopening of the whole process. It is not, in my view, the intention of s 25B or the other provisions within Pt 3 of Div 3 to allow the consent authority to reopen the whole of its consideration. 9 Subsequent to Kindimindi, Jagot J in Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Limited [2007] NSWLEC 411 considered whether an order under s 25B was appropriate in circumstances where a consent was found to be in breach of provisions of a local environmental plan which required council to consider the external design of the development and ss 76A(1) and 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979. The council left the external design of the building for later deferred consideration. The consent did not enable the council to identify the development to be carried out and the building to be erected in accordance with the consent. Jagot J held that it was appropriate in the circumstances to grant an order under Division 3 of Part 3 of the Court Act. Her Honour held at [46]: Section 25B is different. The Court is obliged to consider making such an order instead of declaring a consent invalid (s 25E of the LEC Act). In Kindimindi Investments Pty Ltd v Lane Cove Council & Anor (2007) 150 LGERA 333 ( Kindimindi No 2 ) the Court of Appeal held that the provisions are not limited to invalidity arising from preliminary steps. Although Hodgson JA referred to the provisions as being intended to allow rectification of technical breaches (at [21]), Tobias JA considered the provisions capable of relating to a failure to consider any one or more of the matters in s 79C(1) of the EPA Act (at [32] and [36]). Tobias JA also placed weight on s 103 of the EPA Act as supporting the width of these provisions. Section 103 enables the consent authority to revoke a development consent to which s 25B applies whether or not the terms of the Court's order have been complied with (at [37]). This approach is supported by s 25C of the LEC Act enabling the Court, amongst other things, to declare that a consent has been validly regranted. 10 Recently in Bungendore Residents Group Inc v Palerang Council (No 4) [2007] NSWLEC 536 Pain J declined to exercise the discretion under s 25B and observed at [42]: There are several cases not overturned by Kindimindi in which this Court has held that matters that are fundamental to the granting of consent should not be the subject of s 25B orders; see Centro Properties v Hurstville City Council , (2004) 135 LGERA 257, Belmore Residents' Action Group Inc v Canterbury City Council (2006) 147 LGERA 226, and GPT Re Ltd v Wollongong City Council (No 2) (2006) 151 LGERA 158. In Kindimindi , Tobias JA referred at [33] to Centro Properties as an example of a case where the application of s 25B was not considered appropriate. As identified at [31] - [33], the breaches I have found in this matter are substantive breaches, and I consider are similar in nature to the cases cited above where s 25B has not been applied. 11 Omaya submitted that the error of the council was a simple failure to publicly repudiate special condition 17; did not involve a reopening of the whole assessment process or go to the root of the consent; could be simply fixed as indicated in my earlier judgment in these proceedings at [141]; and there was no benefit that would be secured by declaring the development consent invalid.

[50]

45 I reject the applicant's submission that the council also be ordered to pay its costs in relation to the interlocutory injunction. That issue was decided adversely to the applicant in my costs judgment in the earlier proceedings between the parties F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 3) [2007] NSWLEC 569, as follows: 43 The applicant claims costs against the council for the whole of the proceedings. The council submits that there should be excepted from such an order the applicant's costs of obtaining an injunction against the second, third and fourth respondents to prevent works to demolish heritage items on the site. Council points to the fact that in the applicant's notice of motion seeking the injunction and in the notice of motion as amended from time to time, the applicant never sought costs against the council but only against other respondents. In oral submissions the applicant conceded this point. It seems that this was understood by council to be conceded from the outset because council in its written submissions noted that it appeared that the applicant, properly, did not seek to recover those costs from council. Accordingly, when making an order that the council pay the applicant's costs for the proceedings, I propose to make an exception in relation to the costs of obtaining the injunctions. … 49 The costs of the applicant's notice of motion seeking the injunction against Omaya were reserved. The applicant now claims from Omaya its costs of obtaining that injunction. Omaya were joined as respondents as a result of carrying out demolition works in reliance upon the 2003 development consent, which council subsequently conceded to be invalid, and in the context of the applicant seeking and obtaining an injunction to restrain them from carrying out such work. The issues relating to such demolition works were, in effect, transferred to be determined with proceedings No 40171 of 2007 in which the applicant claimed that a development consent granted by council in February 2007 was invalid. Omaya submits that all relevant breaches of law as determined by the Court in these proceedings were breaches by the council and not by Omaya and that, as such, no order for costs should be made against them.

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