Gee v Gosford City Council & Anor

APPLICANT Mr EG Romaniuk (barrister) SOLICITORS Abbott Tout

FIRST RESPONDENT Mr M Fraser (barrister) LEGAL REPRESENTATIVES: SOLICITORS PJ Donnellan & Co

SECOND RESPONDENT Michael Bowe (solicitor) SOLICITORS Michael Bowe

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40175 of 2001

19 August 2002 ELIZABETH GEE Applicant v GOSFORD CITY COUNCIL First Respondent

RICHARD WHITINGTON Second Respondent Ex Tempore Judgment

1 These are Class 4 proceedings commenced by the Applicant seeking a declaration that Development Consent No. 11672/01 dated 17 July 2001 granted to the Second Respondent by the First Respondent (the Council) for additions to an existing dwelling and construction of a new studio at Lot 75, DP 14817 otherwise known as 11 Onyx Road Pearl Beach is void and of no effect. 2 The Applicant argues that the development consent no. 11672/01 granted pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act) to the Second Respondent by the First Respondent (the Council) is invalid, and should be declared void, because it was granted by a Council officer outside the terms of the instrument of delegation of the General Manager of the Council the "Delegations Policy D8.01 90.33.00". The delegation does not extend to any application: which is subject to more than two (2) submissions representing objections provided that the objection is not of a minor nature or is specific to the development proposal. Section B2(iv)(2) Consequently the Council officer had no power to grant the development consent. 3 The parties agreed on the relevant facts before the Court and the [Draft] Agreed Statement of Facts before me are as follows: 1. On about 18 April 2001 the Second Respondent made application no. 11672 of 2001 for development consent under the Environmental Planning and Assessment Act 1979. 2. Mr Grant Killen (Killen) had delegated authority pursuant to the Delegations Policy D8.01 90.33.00 and that delegation, pursuant to Section B of the instrument, provided Killen with delegated power to determine by consent or refusal development applications of a type which included the Second Respondent's application no. 11672 of 2001. 3. The instrument of delegation conferring power upon Killen contained an "exemption" to that delegated power and that exemption is set out on page 4 of the instrument document. (see par 2 above) 4. Killen purported to exercise his delegated power and purported to grant consent subject to conditions to the Second Respondent by Notice of Determination of a Development application dated 19 July 2001. 5. Prior to 19 July 2001 and prior to the purported consent granted subject to condition described in the Notice of Determination: a. the First Respondent had received a letter from Mr Larry Nolan dated 30 June 2001 on 3 July 2001. b. The First Respondent had received a letter from the Applicant dated 2 July 2001 on 6 July 2001. c. The First Respondent had received a letter from Carol Long dated 2 July 2001 on 6 July 2001. d. The First Respondent had received an e-mail letter from Michelle Andriga dated 4 May 2001 on 5 May 2001. e. The First Respondent had received a letter from Beverly Lapacek dated 4 May 2001 on 5 May 2001. f. The First Respondent had received a letter from Larry Nolan dated 1 May 2001 on 5 May 2001. g. The First Respondent had received a letter from Larry Nolan dated 25 April 2001 on 27 April 2001. h. The First Respondent had received a letter from Carol Long dated 26 April 2001 on 30 April 2001. i. The First Respondent had received a letter from Mr & Mrs H C Bartholemew dated 30 April 2001 on 3 May 2001. The First Respondent had received a letter from Robert Farrah on 15 May 2001 on 15 May 2001 [sic]. 4 No factual issues were raised before me. The only matter for determination is the statutory construction of the meaning of s B2(iv)(2) of the delegation of the General Manager. I should note the Second Respondent joined with the First Respondent's submissions and made no separate submissions. Applicant's argument 5 The Applicant submitted that the "exemption" to the delegation operates to preclude the exercise of delegated power where there are more than two submissions representing objections and the objections are not of a minor nature and/or are specific to the development proposal. The "exemption" to the delegated power only requires that either the objections not be of a minor nature or the objection be specific to the development proposed to be dealt with by the delegate. The purpose of the delegation power in the present case is to permit objections of a similar nature or objections that are not specific to the development proposed to be dealt with by the delegate. 6 The Council contends that the "exemption" will only operate where there are more than two submissions representing objections provided that the objection is not of a minor nature and provided that the objection is not specific to the development proposal. In effect, it is suggested that the "exemption" will only operate in the present case where the objection is not specific to the development proposal. 7 Further, it seems to be the contention of the Council that the "or" in the text of the "exemption" clause requires, in effect, both "proviso" to be satisfied before the "exemption" has effect. Such a construction of the delegation instrument leads to an absurdity or an inconsistency within the delegation instrument. In Fitzgerald v Masters (1956) 95 CLR 420, Dixon CJ and Fullager J said: Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency. Council's argument 8 The Council argued that the exception to the delegation, read giving the words used their ordinary meaning in context, has the following ingredients: 2.1. The application must be subject to more than two (2) submissions. 2.2 The submissions must be in the nature of objections 2.3 Each such objecting submission must be either 2.3.1 of a minor nature or 2.3.2 not specific to the development proposal 9 In short, an objecting submission will not figure in the count of "more than two submissions" if it is either of a minor nature or not specific to the development proposal. The objecting submission might be both minor and non-specific, the word "or" in this context connoting cumulative alternatives. The context does not suggest or even allow for an interpretation of "or" to connote exclusionary alternatives, such that if an objection is both minor and non-specific that it would not be counted. In this context "or" means "and/or". Both proviso need not be satisfied before the "exemption" has effect. The objections were thus not caught by the exception within the delegation. Mr Killen was empowered to determine the application by consent or conditional consent. 10 The purpose which the Applicant ascribes to the delegation power that it "permits objections of a minor nature or objections that are not specific to the development proposed to be dealt with by the delegate", contrasts to the meaning of the delegation as drafted, which permits objections of a minor nature or objections that are specific to the development to be dealt with by the delegate. The purpose the Applicant proposes is contrary to that intended on the face of the delegation and can only be achieved by amending the exception. 11 Having regard to the purpose of the delegation, that is to make running of the Council more efficient, the ordinary meaning of the delegation as contended by the Council makes sense. It can be seen to fulfil that express purpose and has been unchanged since 1993. 12 The nature of the further exceptions to the delegation power at s B2(iv)(1), (3) and (4) confirm that the exceptions to the delegation power seek to catch and exclude from administrative disposition large ($4m, exception 1), controversial (elected representative requests the DA be dealt with by Council, exception 2) or significant (in the opinion of a specified Director, exception 4). In the same way, exception 2 seeks to catch any application which is not otherwise caught by exception 1, 3 or 4 where there are more than two objections, but not to trouble the Council if they are minor or do not raise issues of wider ramification, as exceptions 1, 3 and 4 do. 13 Alternatively, if the Court is of the view that the terms of the delegation did not empower Killen to deal with the development application, then the Court ought to make an order pursuant to s 25B(1) of the Land and Environment Court Act 1979 suspending the operation of the consent in whole, and specifying terms, compliance with which will validate the consent. 14 There is no suggestion that the nature of the objections were of such magnitude or content that refusal of the development application, if it had been dealt with by the Council, might have followed. Even if this be so, the practical operation of s 25B(2) enables the making of orders compliance with which by the First Respondent will validate the consent. Such orders can and ought be made by the Court.

Finding 15 It seems to me that there are two constructions open for the words of the relevant clause of the instrument of delegation before me. These are reflected in the conflicting submissions of the Applicant and the Council. In my view the construction of the Council is to be preferred in the circumstances. Both parties urged on the Court a purposive approach to construction, albeit with a different purpose. In the overall context of the terms of the delegation instrument and taking into account the other clauses (1), (3) and (4) of the instrument of delegation in the same subsection policy as the section before me, I accept the Council's submission that the purpose of the instrument is fulfilled on the face of the instrument as currently drafted. The delegated authority can be exercised if the development application is subject to more than two submissions which are objections, as in this case, provided the submissions are of a minor nature or, used in the alternative, are specific to the development proposal. That is the situation in the actual case before me. Accordingly the council officer was empowered to determine the application as he did. I do not consider the clause in question applying the Council's interpretation requires amendment to arrive at that result.

16 One of the cases referred to by the Council was useful in my reasoning on the question of statutory construction in this case. In Mills v Meeking (1989) 91 ALR 16 at 30 there is reference to the High Court decision of Cooper Brookes (Wollongong) Pty Limited v FCT (1981) 147 CLR 297. The relevant passage set out in Mills v Meeking is as follows: "Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended." However, the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to which one would not, especially where that purpose is set out in the Act. 17 Applying that approach, in my view the Council's interpretation is the correct one to be applied.

18 I did also hear argument from the Council that the application of s 25A and s 25B of the Land and Environment Court Act 1979 would be appropriate in these circumstances. It is not necessary that I deal with this issue given my earlier finding, but by way of obiter remark, my preliminary view is that I do not think I would have applied it in this matter in the event the decision made pursuant to the Council's delegation policy was beyond power. HER HONOUR: At this stage I have not made any decision on costs. Do the parties wish me to reserve on that matter?

HER HONOUR: I will now reserve on costs. That would leave you to put a motion on in relation to costs.

ROMANIUK: Your Honour I would have thought it would be a matter that could be dealt with today, that the cost of the motion to seek costs by the respondents would be an unnecessary additional cost. It could be dealt with now. The issue is not difficult, the case has been decided in favour of the respondents, effectively, and costs would normally follow the event. I'd be interested to hear what the basis of the resistance to a costs order would be, to see whether it's justified in putting it off than beyond today. My submission is it ought to be dealt with now.

FRASER: Obviously we will need to take some instructions in relation prosecuting on appeal and we'll do that. In the interim it would be appropriate, we say, that the costs be reserved. Or at least if you Honour was mindful to make an order as to costs we'd seek a stay of the order of costs pending the outcome of the appeal. But we don't have those instructions so we need to…

HER HONOUR: Generally the usual rule is the costs follow the event.

HER HONOUR: If you want to consider it I am happy to go off the Bench and come back on again. I don't know if that really assists you though, thinking what you've just said.

FRASER: For our part we will want to seek some instructions in relation to an appeal. We will need to obtain a transcript of your Honour's reasons, consider those matters.

HER HONOUR: That doesn't normally stop a decision on costs being made.

FRASER: No it doesn't. And we will just seek that the order as to costs be stayed pending the prosecution of an appeal. In effect, if we don't file an appeal then the costs order becomes effective. If we do, then the costs order is stayed until the appeal is determined. But we have to--

HER HONOUR: Is that a very usual costs order, or even usual costs order?

ROMANIUK: Enforcement of costs is usually done at the final conclusion of the proceedings, so if we were to pursue costs - an appeal, then the matter continues to be, in effect, in dispute between the parties.

HER HONOUR: yes and I understand that. But I must say I've not seen many costs orders where it's contingent on there being an appeal made. That's your application?

ROMANIUK: It is. HER HONOUR: Mr Fraser have you got any comment on that?

FRASER: Just the submission that the fact that an appeal is being contemplated is a reason for the matter not to be finalised as it is, and the appropriate procedure would be for the applicant to apply for a stay of the order in the event they lodge an appeal. And I'm confident that if appeal was lodged, and that application was made, it may be consented to. But I don't have any instructions about that. But that's the appropriate procedure. No reason not to deal with the matter finally today.

HER HONOUR: Does the second respondent have any comments on costs?

BOWE: Just on that logic, the first respondent, there'd be no costs orders made, ever.

HER HONOUR: But just apart from that, do you have any comments on costs?

BOWE: Costs for the second respondent, yes. HER HONOUR: You are seeking costs, such as they are?

HER HONOUR: It seems to me, having heard that, it is appropriate that I make a costs order that would be the usual course taken in this Court, and I simply order that costs follow the event. So the applicant is liable for the costs of the first and second respondents in this matter.

Order The Court orders that: 1. The Class 4 application is dismissed. 2. The Applicant is liable for the costs of the First and Second Respondents in this matter.

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