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[1998] NSWLEC 17
Land and Environment Court (NSW)
1998-06-18
Lloyd J
Original judgment source is linked above.
CITATION : AUSTRALAND HOLDINGS PTY LTD v. HORNSBY COUNCIL 18 June 1998 [1998] NSWLEC 17 PARTIES : AUSTRALAND HOLDINGS PTY LTD v. HORNSBY COUNCIL 18 June 1998 FILE NUMBER(S) : 10338 & 30078 of 1997 CORAM: Lloyd J KEY ISSUES: :- Environmental Planning and Assessment Act 1979, subss 94(1), (2), (7) & (8) LEGISLATION CITED: Land and Environment Court Act 1979, s 56A Land and Environment Court Rules 1996, Pt 13 r 35 Gallo v Dawson (1990) 64 ALJR 458 at 459; Jackamarra v Krakouer [1998] HCA 27; (1998) 8 Leg Rep 33 at 35; Palata Investments Ltd v Burt and Sinfield Ltd [1985] 1 WLR 942 at 946; Vilenius v Heinegar (1962) 36 ALJR 200 at 201; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; CASES CITED: Coulton v Holcombe (1986) 162 CLR 1 at 8; Holcombe v Coulton (1988) 17 NSWLR 71; Coles v Woollahra Municipal Council (1986) 59 LGRA 133; Trehy and Ingold v Gosford City Council (1995) 87 LGERA 262; R v Immigration Appeal Tribunal; Ex parte Khan [1983] 1 QB 790 ; In North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435; Holcombe v Coulton DATES OF HEARING: 5 June 1998 DATE OF JUDGMENT: 06/18/1998
M H Tobias QC & D P Wilson LEGAL REPRESENTATIVES: B J Preston
The contribution rate will be adjusted in accordance with movement in the implicit price deflator if not paid during this financial year.
Subdivision application No. 7241 pursuant to Pt 12 of the Local Government Act 1919 be approved upon final plans and fees being submitted and be subject to the following conditions which are to be complied with prior to release of the final plan of subdivision.@
(a) the dedication of land free of cost; or (b) the payment of a monetary contribution,
(2) A condition referred to in subs (1) shall be imposed only:
(a) (Repealed) (b) to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services mentioned in that subsection.
(7) When granting consent to a development application made on or after 1 July 1993, a council may impose a condition referred to in this section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94AB.
(8) A condition of a kind allowed by a contributions plan may be disallowed or amended by the Court on appeal because it is unreasonable, even if it was determined in accordance with the plan.
Issue 1: Extension of Time for Appeal 7. It is relevant to consider any explanation for the failure of the Council to institute any appeal within the twenty eight day time limit under Pt 13 r 35 of the Court=s Rules and for the further delay in making this application for an extension of time. The position is best understood by reference to the following chronology of events: 14 November 1997 The assessor=s reserved judgment is delivered. 17 November 1997 A copy of the assessor=s judgment is forwarded to the Council by its solicitors.
12 December 1997 The time for any appeal against the assessor=s judgment expires.
8 January 1998 The error in condition 30 of the consent granted by the assessor is first noted in a telephone call by an officer of the Council to its solicitors.
14 January 1998 The Council discusses the error in condition 30 at a meeting at which representatives of Australand are present.
30 January 1998 The Council=s solicitors are instructed to take action to rectify the error in condition 30. 3 March 1998 A notice of motion is filed for an order pursuant to the Land and Environment Court Rules , Pt 15 r 9(e) for condition 30 to be amended. (Pt 15 r 9(e) enables the Court to set aside or vary an order Aif the order does not reflect the intention of the Court.@)
19 March 1998 The notice of motion is heard by Sheahan J and is dismissed on the ground that the orders made do in fact reflect the Court=s intention at the time of their making.
30 March 1998 Counsel is briefed to advise the Council on the appropriate actions to rectify condition 30.
7 April 1998 The Council=s solicitors receive counsel=s advice.
8 April 1998 The present proceeding is commenced by being filed.
15 April 1998 The present proceeding is served on Australand=s solicitors.
Australand=s Submissions 10. Mr M H Tobias QC who with Mr D P Wilson appears for Australand, submits that the Land and Environment Court Rules Pt 13 r 35(2) should not be exercised in favour of the Council for the following reasons: Australand would suffer prejudice if the extension of time is granted because of the extra $100,000 (approximately) in s 94 contributions which may be imposed if the appeal is successful. ?. There is a significant period of unexplained delay in the Council=s actions between 12 December 1997 and 8 April 1998, viz between 14 and 30 January 1998; between 30 January and 3 March 1998; and between 19 March and 30 March 1998. ?. Australand has commenced development of the site the subject of the consent granted and has therefore exhibited reliance upon the Court=s orders. There is a public interest in maintaining the certainty of consents which are granted by the Court. ?. The Council agreed to the contribution amount which appears in condition 30 and should be bound by such conduct (although not estopped by its conduct). ?. The questions raised by the Council in the s 56A appeal do not constitute an arguable case.
Relevant Principles 11. The proper exercise of the discretion of the Court to an application for an extension of time within which to appeal requires a consideration of whether strict compliance with the Rules will work an injustice ( Gallo v Dawson , at 459). In determining this question the court may have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of the grant or refusal of the application for an extension of time and the prospects of the applicant succeeding in the appeal ( Gallo v Dawson , at 459). The court must also bear in mind that when the time for appeal expired, the party in favour of whom judgment had been given has a vested right to retain the judgment unless an extension of time for appealing should be obtained ( Vilenius v Heinegar (1962) 36 ALJR 200 at 201; Gallo v Dawson , at 459). It is arguably more correct, however, to say that the party for whom judgment has been given has a legitimate expectation rather than a vested right to retain the judgment unless an extension of time for appealing is obtained. Recently the High Court has, by majority, succinctly refined these considerations to the following main factors: length of delay, reason for delay, whether there is an arguable case, and the extent of any prejudice suffered ( Jackamarra v Krakouer ).
Delay 12. The history of the proceeding and the instances of delay on the part of the Council are set out in par 7 above. There is a number of unexplained instances of delay. It could not be said, for example, that the Christmas and New Year holiday period led to the failure of the Council to institute an appeal within time. The twenty eight day period for the institution of an appeal expired on 12 December 1997, before the holiday period. There is next the unexplained delay to 8 January 1998 when, it seems, the Council=s error in propounding condition 30 was first noted. Mr Preston submits that this and subsequent delays were due to the fact that this was the holiday period. In Vilenius v Heinegar , however, the High Court (Kitto J, with whom Windeyer and Owen JJ agreed) held that the fact that the period was the Christmas/New Year holiday period did not constitute a special reason for granting special leave to appeal out of time. As Kitto J said in that case (at 201): AWhen the judgment was delivered on 13th December it must have been obvious that the time of the year was such that one had to be careful about these matters, and two courses were open if the appellant had apprehended either that he would not or that he might not be able to comply with the rules. One was to appeal to the Full Court of Queensland, either at once or by virtue of an extension of time; the other was to apply to this Court for an extension of time. Neither course was taken. The result was that the rules were not complied with, and when 3rd January had expired the party in favour of whom judgment had been given, the plaintiff, had a vested right to retain the judgment unless either this Court under sub-r (2) of r 6, for special reasons, should give special leave to appeal, or an extension of time for appealing to the Full Court of the Supreme Court of Queensland should be obtained.@
Kitto J then went on to hold (at 201) that no special reason existed for depriving the successful party of the benefit which she obtained by the expiry of the time despite the fact that this occurred at the time of the year when offices are often closed and people are perhaps understandably apt to forget questions of time. 13. Although the matter was raised at a Council meeting on 14 January 1998, there is a further unexplained delay to 30 January 1998 when instructions were given to the Council=s solicitors to rectify the error in the judgment. There is then a further unexplained delay between 30 January 1998 and 3 March 1998 when the notice of motion was filed seeking an order under Pt 15 r 9(e) of the Court=s Rules. There is yet a further unexplained delay between Sheahan J=s judgment on the notice of motion on 19 March 1998 and the briefing of counsel to advise on 30 March 1998. Some of these delays involve significant periods of time, particularly the delays between 14 November 1997 and 8 January 1998, the delay between 14 January 1998 and 30 January 1998, and between 30 January 1998 and 3 March 1998. Even after the Council had discovered the error in the judgment it could not be said that it had acted otherwise than at a leisurely pace. As I have noted, Pt 13 r 35(1) of the Court=s Rules provide for the institution of an appeal within 28 days. It was fifty-five days after the judgment before the error was noted on 8 January 1998, seventy-seven days before the Council=s solicitors were instructed to rectify the error, one hundred and nine days before the Council=s solicitor=s filed the notice of motion under Pt 15 r 9(e) of the Court=s Rules and a total of one hundred and forty five days before the present application was filed. 15. The length of delay and the reasons for it are not insignificant. In Jackamarra v Krakouer , Kirby J referred to the discretion of a court to extent time in the following passage (at 66.2): ABut where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application ( Hall v Nominal Defendant (1966) 117 CLR 423 at 429). Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred. Neither a party nor its legal advisers may simply assume that a request for an extension of time will always be acceded to ( Hall , at 435).@
In my view, in the absence of any other explanation, these delays are inexcusable. As did the High Court in Vilenius v Heinegar , I do not regard the intervention of the Christmas and New Year holiday period as a special factor which should be taken into consideration. These considerations alone lead to the view that the Council=s application should be refused. A party which is out of time for instituting an appeal cannot sit on its right to apply to extend the time and expect that such an application will be granted as a matter of course. Such a party must act promptly if it wants an exercise of the court=s discretion in its favour.
The Conduct of the Case 16. The next relevant matter for consideration is the conduct of the parties ( Gallo , at 459); in this case, the conduct of the Council in particular, since it is the applicant for an extension of time. Condition 30 as imposed by the assessor was in accordance with that which was propounded at the hearing by the Council. 17. In University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, the High Court (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) held (at 483): AIt 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 had 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.@
To allow a party to raise in an appellate court a matter which was not litigated in the trial court not only undermines the respective functions of the trial and appellate courts and the policy of law but perhaps more importantly it deprives the appellate court of the benefit of the views of the trial court.@
The Effect on the Party having the Benefit of the Judgment 21. One of the consequences of the delay on the part of the Council is the effect of such delay on the other party to the litigation and the further consequences for the parties of the grant or refusal of the application for extension of time ( Gallo , at 459). I have described in par 8 above the steps taken by Australand in implementing the development consent since the date of the assessor=s decision. I have referred above to Mr Preston=s submission that no prejudice will be caused to Australand by an extension of time and in particular to his submission that there is no evidence that Australand would not have proceeded with the development if the condition is amended in the manner now sought by the Council. 22. I am mindful, however, of the principle explained by the High Court in Vilenius v Heinegar that once the time for instituting an appeal has expired, the party in favour of whom judgment has been given obtains the benefit of Aa vested right to retain the judgment@ unless, for Aspecial reasons@ the court grants leave to appeal, or extends the time. In Jackamarra v Krakouer Brennan CJ and McHugh J followed Vilenius v Heinegar . Their honours J said (at 4): AIn that class of case [an application for an extension of time to lodge an appeal], the respondent to the application has a vested right to retain the judgment ( Vilenius v Heinegar , at 201; Gallo v Dawson , at 459), the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent.@
An Arguable Case 26. The abovementioned conclusions are, in this case, sufficient to call for an exercise of the court=s discretion against granting the Council=s application. Since, however, both the question of an arguable case and the arguments on the appeal itself were the subject of contention, then I should also comment thereon. 27. Mr Preston, on behalf of the Council, submits that the statutory scheme outlined in s 94(7) does not permit the Council or the court to vary the contribution amount imposed from that in a Contributions Plan approved under s 94AB of the Act. The words Aof a kind allowed by@ and Adetermined in accordance with@ in subs (7) mean that a Council or the Court cannot impose a condition under subs (1) of s 94 which requires payment of a contribution in a different amount than that in the Contributions Plan, and this interpretation is affirmed by the Minister=s second reading speech when introducing the Bill for the Act into the Parliament, which refers to the importance of the consistent imposition of contributions under s 94. Accordingly, the only power which the Court could have been exercising in varying the contribution required from that in the Contributions Plan, in Mr Preston=s submission, is found in subs (8). Subsection (8) requires a finding that the condition imposed under the Contributions Plan is unreasonable before the Court=s power to either disallow or amend that condition is enlivened. (This provision prevails over Land and Environment Court Act s 39(2) as to the Court=s status in appeals from a decision of a council). 28. Mr Preston submits that the Court did not turn its mind to this question of the unreasonableness of the monetary contribution in the Contributions Plan (as is required by subs (8)), as is evidenced by the fact that there is no reference in the judgment to the unreasonableness of the contribution established by the Contributions Plan. The Court cannot rely on the parties= agreement on a matter if to do so circumvents a statutory mandate, and the requirement for the Court to determine whether the amount imposed by the Contributions Plan is unreasonable under subs (8) is such a mandate, in Mr Preston=s submission. He further submits that the Court cannot delegate its determination of this question under subs (8) to the parties, because the Court must satisfy itself that it has the jurisdiction or power to decide a matter. 29. Mr Preston submits that if the interpretation of s 94 which he advances is not accepted by the Court, then in the alternative, if the Court was acting within the power of subs (7) in imposing condition 30, it was obliged to have regard to the Contributions Plan to determine the appropriateness of the condition, and also was obliged to give reasons for its decision to deviate from the contribution amount in that plan. 30. Mr Tobias QC, on the other hand, propounds on Australand=s behalf a different interpretation of subss (7) and (8) of s 94. He submits that subss (7) and (8) are separate sources of power. Subsection (7) permits the Court or the Council to impose a condition which differs from that in a Contributions Plan, provided that the condition is Aof a kind allowed by@ and is Adetermined in accordance with@ that Contributions Plan approved under s 94AB. This simply means that the condition must not be inconsistent with the Contributions Plan, which indicates that the Council or the Court can impose a contribution under subs (7) of s 94 which is a lesser sum than that prescribed in the Contributions Plan. 31. Mr Tobias therefore submits that the construction of s 94 advanced by the Council would lead to an unacceptable restriction on Councils in that it would not permit them to impose a contribution under subs (1) in a lesser amount than that in the Contributions Plan when determining development applications, and that the legislature would not have countenanced such a limitation on the power of Councils to vary the contributions required under s 94 from those established in Contributions Plans. 32. Mr Tobias further submits that the ( obiter ) words of Talbot J in Trehy and Ingold v Gosford City Council (1995) 87 LGERA 262 at 276, that a Council has no discretion under subs (7) (apart from the discretion of whether or not to impose a condition) are not contrary to the interpretation of the subsection which he advances. Mr Tobias does not submit that the words of subs (7) invest in Councils a discretion, but only that a condition which imposes a lesser amount than the amount in the Contribution Plan can nevertheless be Ain accordance with@ that plan. 33. In this regard Mr Tobias submits that the power under subs (8) is restricted. It can only be exercised by the Court. It limits the Court=s power to disallow or amend a condition even if it was determined in accordance with the plan only to those circumstances in which there is a finding that the condition is unreasonable. Subsection (8) takes its flavour from the words Awas determined@, which would indicate that this power is only able to be exercised in an appeal which includes an appeal against a condition determined by a Council under s 91 of the Act. This would inappropriately limit the Court=s power in disallowing or amending a condition to deviate from a Contributions Plan, by, for example, excluding from the Court=s purview under subs (8) a deemed refusal of Council under s 96. In the Council=s reading of subs (8) the words Awas determined@ would therefore have to be read liberally so as to allow the Court a power to disallow or amend a condition where there has been no determination under s 91. 34. Moreover, in Mr Tobias= submission, under the Council=s interpretation of the provisions of s 94, subs (2) (which deals with, inter alia , the reasonableness of the conditions imposed and contributions required under subs (1)) would be left without utility. It is subs (2), and not subs (8), which operates to ensure the reasonableness of conditions imposed under s 94. 35. In the alternative, if the Court finds that subs (8) was the relevant power exercised by the assessor (because the words of subs (7) require the condition imposed to be the same as that in the Contributions Plan), Mr Tobias submits that the imposition of condition 30 was nevertheless a valid exercise of the Court=s power. This is so because, firstly, there is no need for the Court to go behind the parties= agreed statement of issues and agreed conditions of consent. An agreed amount was put before the Court, which triggers the power under subs (8), because the Court can be satisfied that the contribution established by the Contributions Plan was unreasonable if the parties have agreed on an alternative amount. Secondly, in the absence of any evidence to the contrary, it should be presumed that the Court fulfilled all of the necessary investigative steps prior to the exercise of its power under subs (8). 36. There is a number of issues which arise from the competing interpretations proffered by counsel on behalf of the Council and on behalf of Australand. If Mr Preston=s submissions are accepted then the following would, in my opinion, be the proper construction of s 94 of the Act: (1) There is no power under subs (7) for Councils or the Court to impose contributions under subs (1) which differ from those in the Contributions Plan. The only option for either a Council, or the Court when standing in place of the Council (pursuant to Land and Environment Court Act 1979 s 39(2)), is whether to impose a condition in the form which is in the Contributions Plan or to not impose a condition at all. (2) The power to vary conditions from the Contributions Plan is vested solely in the Court under subs (8) on appeal from the decision of a Council in circumstances in which there is a finding by the Court that the condition imposed is unreasonable. (3) Such a finding of unreasonableness cannot be inferred merely from the parties= agreement on a figure which differs from that in the Contributions Plan. (4) The words >was determined= in subs (8) must be read liberally so as to also include matters outside of those determined by Councils under s 91 of the Act. A narrow reading of those words would leave neither a Council nor the Court on appeal with any power under either subss (7) or (8) of s 94 to impose a condition which differs from that in the Contributions Plan in instances of a deemed refusal of a development application by a Council. 37. If, on the other hand, the submissions of Mr Tobias for Australand are accepted, the following would, in my opinion, be the proper construction of s 94 of the Act: (1) Subsection (7) only imposes a requirement on a Council and the Court when standing in the place of the Council that a condition which is imposed not be inconsistent with the Contributions Plan. The words of subs (7) Adetermined in accordance with@ and Aa kind allowed by@ do not fetter a Council=s or the Court=s ability to impose a contribution amount under subs (1) which is lower than the amount specified in the Contributions Plan. (2) Subsection (8) is not the provision which the legislature intended to be employed to vary a contribution from that in the Contributions Plan. It is only relevant to development applications which were determined under s 91 and does not apply to, for example, a deemed refusal or a failure to determine a development application by a Council (such as in the present case). (3) In those instances where the Court=s power under subs (8) is able to be enlivened, if the parties put before the Court an agreed figure which differs from that in the Contributions Plan, then the Court can conclude that the amount specified in that plan is unreasonable. 38. There is substance in the argument of both counsel for the Council and for Australand. The Council satisfies the test of having an arguable case on its primary submissions as to the proper construction of s 94, and its secondary submission that under this interpretation the assessor erred in law by failing to turn his mind to the unreasonableness of the contribution specified in the Contributions Plan. 39. This issue, however, is only one of several which is of relevance to the question of whether the Court should in the exercise of its discretion grant an extension of the time within which to institute an appeal. I have considered above the issue of the Council=s delay, much of which is unexplained. I concluded above (in para 15) that Athe length of the delay and the reasons for it are not insignificant@. I have also considered the fact that condition 30 imposed by the assessor was identical to that propounded by the Council at the hearing, and have referred to the authorities which suggests that a party is bound by its conduct of the case. I have also considered the principle of securing finality in litigation, and the invidious effect that the commonplace granting of applications to extend the time for appeal would have on this principle. The legitimate expectations as well as the actions of the party in favour of whom judgment has been given in reliance on the judgment must also be considered. It is against these factors that the existence of an arguable case must be weighed. It is clear that in an objective view of all of these factors, the existence of an arguable case and the other factors to which Mr Preston refers is not enough to outweigh the other factors to which I have referred in this judgment, in particular the extensive and unexplained delay by the Council in instituting this proceeding.
Issue 2: The Section 56A Appeal 40. Having arrived at the above conclusion, the Council=s appeal under s 56A of the Land and Environment Court Act does not need to be decided. The above discussion under the heading of >An Arguable Case= effectively canvasses the same issues as those relevant to the s 56A appeal. In the present case it would serve no utility for me to express any opinion on which of the competing interpretations of s 94 of the Act is correct, because whatever is said would be in the category of obiter dictum . 41. The only matter on which I should say something is Mr Preston=s submission that, in exercising its power under s 94(8), a Court is not entitled to accept, without comment or reasons, an agreed fact put forward by the parties as evidence that the amount which appears in the Contributions Plan is unreasonable. I do not consider that this submission is correct. It is abhorrent to the nature of the adversary system and would present the Court with an unworkable administrative burden in cases where numerous conditions are agreed to by the parties. 42. In R v Immigration Appeal Tribunal; Ex parte Khan [1983] 1 QB 790 Lord Lane CJ (with whom Lord Ackner and Lord Oliver agreed) said (at 794) that it must be apparent from the statement of reasons that the tribunal has considered the point which is in issue between the parties. In North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 Kirby ACJ said (at 442): AThis Court has held many times that it is an incident of judicial duty to give reasons which extend to expressing findings upon issues which are critical to the point in contention in the case: Y@ (my emphasis)
In the present case condition 30 was neither a point which was in issue between the parties nor was it a point in contention. 43. Although I have referred to it above (par 19) it is pertinent to again cite a passage from the judgment of McHugh JA in Holcombe v Coulton (at 77-78): AUnder the adversary system of justice, the function of the trial court is to determine disputes in respect of issues formulated by the parties, and the function of an appellate court is to correct any error of the trial court in making its determination Y
To allow a party to raise in an appellate court a matter which was not litigated in the trial court not only undermines the respective functions of the trial and appellate courts and the policy of law but perhaps more importantly it deprives the appellate court of the benefit of the views of the trial court.@
I certify that this and the 21 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.
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.
Gallo
Dawson
(1990) 64 ALJR 458
(1962) 36 ALJR 200
(1985) 59 ALJR 481
(1986) 162 CLR 1
(1988) 17 NSWLR 71
(1995) 87 LGERA 262
(1995) 87 LGERA 435
(1966) 117 CLR 423