DECISION
51 There are two questions under s 39(2). First, what is the "matter the subject of the appeal"? Secondly, do the "functions and discretions" which the council "had in respect of the matter the subject of the appeal" include its functions and discretions as the roads authority in granting consent under s 138 of the Roads Act and (in relation to that consent) its functions and discretions as the determining authority under Pt 5 of the EPA Act?
52 As to the first question, the matter the subject of this appeal, in my view, is the proposal to demolish the existing dwelling, subdivide the land into two parts and to provide vehicular access from Birrell Street as a result of the proposed roadwork. The "matter" the subject of an appeal is a wider concept than the "decision" the subject of the appeal: see the authorities cited at [33] above. Although the proposed roadwork does not require development consent, it is a vital part of the overall proposal and many of the council's reasons for refusing the development consent were to do with the proposed roadwork and the consent under s 138 of the Roads Act. Thus, in the particular circumstances of this case, the refusal of development approval, the proposed roadwork and the matter of a s 138 consent were inextricably intertwined such as to constitute the "matter" contemplated by s 39(2).
53 As to the second question, if the proposed roadwork on Birrell Street had required a development application, this Court on appeal from a refusal of development consent, would have had power to grant consent under s 138 of the Roads Act: Gibson v Mosman Municipal Council (2001) 114 LGERA 416 and Connery v Manly Council (1999) 105 LGERA 451. The applicant in the present case relied on those decisions. In Gibson the applicant appealed to this Court from the respondent council's refusal of its development application to carry out work on a property and within a public road. The proposed works included the rebuilding of existing stairs and construction of a new driveway on the public road. Development consent was required for the proposed work on the public road as well as consent under s 138 of the Roads Act. Talbot J held that the matter the subject of the appeal was the works proposed within the applicant's property and within the public road. His Honour held that the Court had jurisdiction, by reason of s 39(2) of the Court Act, to grant consent pursuant to s 138 of the Roads Act.
54 In Connery this Court upheld an appeal against a council's refusal of development consent for construction of a private road through an unformed section of a public road so as to provide access to certain land. The condition imposed by the Court was that the council approve a road reserve lease. Subsequently the council refused the application for such a lease. The applicant applied to this Court pursuant to s 96 of the EPA Act to modify the consent by deleting the condition and inserting a new condition which provided that the consent operated as a consent pursuant to s 138 of the Roads Act. Cowdroy J held that the Court had power under s 39(2) of the Court Act to give the consent required by s 138 of the Roads Act. His Honour held that the subject matter of the appeal concerned the entitlement of the applicant to use the road and that issue formed part of the "matter" the subject of the appeal. Since the council was the relevant roads authority, it was held that its function to grant consent under the Roads Act was now vested in the Court by s 39(2).
55 In my view, Gibson and Connery advance the applicant's case some way insofar as they take s 39(2) of the Court Act into s 138 Roads Act territory. However, ultimately, they are distinguishable. In those cases development consent was required for proposed works on a council road. Consequently, the regulatory regime of Pt 4 of the EPA Act applied to the proposed roadwork and a merits appeal lay to the Land and Environment Court: s 97 EPA Act, s 17 Court Act. The subject matter of the development application was the same as the subject matter of the s 138 consent. The present case is different. No development consent is required and Pt 5, not Pt 4, applies. Furthermore, there is no express right of appeal against a determination to which Pt 5 applies.
56 However, it might be thought a strange result if, under s 39(2) of the Court Act, the Court, on an appeal against refusal of a development consent, has power to grant consent under s 138 of the Roads Act, if development consent is required for associated roadwork, yet has no such power if no development consent is required for associated roadwork: cf Mayoh at 278 per Cripps JA. Yet that is the issue in this case and it arises because the Court would have to exercise functions and discretions under Pt 5 of the EPA Act before granting consent under s 138 of the Roads Act.
57 On the broad approach to s 39(2) of the Court Act, which I have earlier said I propose to adopt, it appears, prima facie, to extend to the council's functions and discretions in relation to the s 138 consent and under Pt 5 of the EPA Act. The real issue is whether the legislature has by necessary implication manifested a contrary intention.
58 The main thrust of the council's submission was that the legislature could not have intended s 39(2) of the Court Act to include Pt 5 functions and discretions because of the amplitude of the consideration obligation in s 111 of the EPA Act; the potential to receive "recommendations" from a bureaucrat and "advice" from a Minister under ss 113 and 114; the potential requirement for concurrence of a concurrence authority under s 112C; the possibility that the Court might have to make a contestable decision whether to bar inspection on public interest confidentiality grounds under s 113; and the potential administrative difficulties under s 113, particularly in exhibiting an environmental impact statement (if required) in the registry of the Court.
59 Where a court exercises judicial functions (for example, the Supreme Court or this Court in its Class 4 jurisdiction), legislation that required or enabled a Minister to give "advice" or a bureaucrat to make "recommendations" to the court as to the decision it should make, in my view, would undermine the doctrine of separation of powers. Public confidence in the impartial exercise of judicial functions depends on the independence of the courts from the legislature and the executive government. This is notwithstanding that the New South Wales Constitution, which governs the state of New South Wales, is not predicated on any separation of legislative, executive and judicial powers, in contrast to the separation of powers entrenched in Chapter III of the Commonwealth Constitution: see Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 118 per McHugh J. The principles of separation of powers and judicial independence, in my opinion, should inform the interpretation of legislation in a case where one available interpretation would undermine those principles but another available interpretation would not. In the absence of clear language, an intention to undermine those principles should not be attributed to the legislature.
60 However, in my view, those principles have little application to a non-judicial function, such as merits review, with which a court may be invested. In acknowledgment of the Land and Environment Court's extraordinary merits appeal jurisdiction, the Court was constituted not only by judges who alone exercise the Court's judicial functions, but by Commissioners who must be appointed on the basis of their special knowledge of and expertise in the administration of local government or town planning and other relevant qualifications and experience: s 12 Court Act. It is the Commissioners who are delegated to hear and decide the vast bulk of merits review cases, or who otherwise usually assist a judge in the relatively small number of such cases heard by a judge. The Court's armoury to hear merits review cases is not limited to the Commissioners. It includes the power to inform itself in such manner as it thinks appropriate and as proper consideration permits, the power to obtain the assistance of any person having professional or other qualifications, an ample power to give directions, and the exclusion of the rules of evidence: s 38 of the Court Act.
61 Stakeholders in planning decisions are not limited to parties to the proceedings but may include the wider community. Therefore it is unsurprising that legislation has democratised the process, including by providing for notifications to, and comments, recommendations or advice by, relevant bureaucrats or Ministers before the decision is made. Thus, local environmental plans (which must be taken into consideration under s 79C(1) of the EPA Act) commonly compel a consent authority to notify and take into consideration comments (which no doubt may include advice) from bureaucrats. A random example is cl 30 of the Newcastle Local Environmental Plan 2003 which provides: "Before granting consent to the demolition of a heritage item of state significance, the consent authority shall notify the Heritage Council of the proposed demolition and take into consideration any comments received in response within 28 days from the date of notification". Section 39(6) of the Court Act provides:
(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body:
(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and
(b) in a case where the concurrence or approval has been granted - the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.
62 The council submitted that s 39(6) does not extend to concurrence under s 112C in Pt 5 of the EPA Act. In my view, that is not so in the circumstances of the present case because the development application and the s 138 Roads Act application were enmeshed and, consequently, the appeal relates to both. If that is incorrect, nevertheless I do not accept the council's submission that s 112C subjects the Court to control of a bureaucrat or political officer. The Court would make its decision independently of the decision of any concurrence authority. Even in the context of Pt 4, where there has been no such consultation, concurrence or approval, s 39(6) does not preclude the Court, in its discretion, from directing the consent authority to consult or seek the concurrence or approval before the Court determines the appeal.
63 I do not give significant weight to the council's submission that the legislature would not have intended the Court to become involved in the machinery of public participation by making contestable decisions under s 113(2). A decision under s 113(2) not to permit inspection of part of an environmental impact statement which would be contrary to the public interest is not alien to decisions which this and other courts are accustomed to make. For example, this Court, when standing in the shoes of a determining authority in a merits appeal from refusal of a development application, has to take into consideration, among other things, the public interest: s 79C(1)(e) EPA Act, s 39(4) Court Act. Another example concerns evidence excluded by a court in the public interest under s 130 of the Evidence Act 1995 or at common law. The common law formulation of public interest immunity was stated in Sankey v Whitlam (1978) 142 CLR 1 at 38 by Gibbs ACJ: "the Court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it".
64 As to the council's spectre of administrative difficulties, s 39(2) does not state that the Court is the body whose decision is the subject of the appeal. Rather, it states that the Court has all the functions and discretions of that body. That should be kept in mind when working out the practical application of the Court's powers under ss 38 and 39. For example, s 113 provides that a "determining authority" shall give notice that a copy of an environmental impact statement prepared by or submitted to it may be inspected at the office of the determining authority. Since the Court is not the determining authority, the Court, in my view, may make directions that the council, which is the determining authority, shall give the notice and that it may be inspected at the council's office.
65 In my opinion, for these reasons, in this case s 39(2) includes the functions and discretions of the council under Pt 5 of the EPA Act and s 138 of the Roads Act.
66 It may be that the Court when proceeding to hear this appeal, will not have to proceed beyond the requirements of s 111 of the EPA Act so far as concerns the s 138 Roads Act issue. That is, other provisions of Pt 5 may not arise for consideration. That remains to be seen.