Goldberg v Waverley Council

Environmental Planning and Assessment Act 1979 ss 78A(8), 79C, 97, 110, 111, 112 ,112A, 112C, 112D, 113, 114, 115, 119 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 cls 228(1), 243 Land and Environment Court Act 1979 ss 4, 38, 39 Roads Act 1993 ss 6(1), 7, 138, 139(1)

Bailey v Forestry Commission of NSW (1989) 67 LGRA 200; Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413; Connery v Manly Council (1999) 105 LGERA 451; Gibson v Mosman Municipal Council (2001) 114 LGERA 416; Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353; Jarasius v Forestry Commission of NSW [No 1] (1988) 71 LGRA 79; Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Kogarah Municipal Council v Kent (1981) 46 LGRA 334; McDougall v Warringah Shire Council (1993) 30 NSWLR 258; Mirvac Projects No 2 Pty Ltd v Concord Municipal Council (1993) 81 LGERA 441; North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740; CASES CITED: Paino v Woollahra Municipal Council (1990) 71 LGRA 62; Prineas v Forestry Commission of NSW (1983) 49 LGRA 402; Prineas v Forestry Commission of NSW (1984) 53 LGRA 160; Rundle v Tweed Shire Council (1989) 68 LGRA 308; Sankey v Whitlam (1978) 142 CLR 1; Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733; Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104; Smith v Wyong Shire Council (2003) 132 LGERA 148 (CA); Strathfield Municipal Council v Drew (1985) 1 NSWLR 338; Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724; Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329; Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598

APPLICANT: Mr A Galasso SC SOLICITORS: Landerer & Company LEGAL REPRESENTATIVES: RESPONDENT: Mr T Robertson SC SOLICITORS: Staunton Beattie

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10058 of 2007 PAUL ANTON GOLDBERG v WAVERLEY COUNCIL

JUDGMENT 1 HIS HONOUR: This case concerns the extent of the Court's power to exercise, pursuant to s 39(2) of the Land and Environment Court Act 1979 (Court Act), the functions and discretions of a council on an appeal from a decision of that council to refuse a development application. Specifically, it raises the question whether, on such an appeal, the Court has the power to grant consent under s 138 of the Roads Act 1993 (Roads Act) to the carrying out of work on a public road owned by the council in circumstances where, in order to do so, it has to exercise the functions and discretions of the council under Pt 5 of the Environmental Planning and Assessment Act 1979 (EPA Act). There is no authority precisely on point. 2 The following preliminary questions of law are before the Court: Does the Court have the following functions and discretions of council under s 39(2) of the Land and Environment Court Act 1979 : (a) The functions and discretions of council in its capacity as determining authority under Pt 5 of the EPA Act? (b) The functions and discretions of council in its capacity as roads authority under s 138 of the Roads Act 1993 ? FUNCTIONS AND DISCRETIONS 3 The appeal is a merits appeal in Class 1 of the Court's jurisdiction. The Court has jurisdiction to hear such an appeal under s 17(1)(d) of the Court Act and s 97 of the EPA Act. The functions and discretions of the Court on such an appeal are stated in s 39 of the Court Act which relevantly provides: 39(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (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. 3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. (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. … "Functions" includes powers, authorities and duties: s 4.

4 Whether the Court has the functions and discretions of the council which are the subject of the preliminary questions depends upon the width of the words in s 39(2) "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". 5 When considering the questions it is relevant to take into account that the practical exercise of the Court's powers on the hearing and disposal of a merits appeal in these classes of the Court's jurisdiction is governed by s 38 of the Court Act, which provides: (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit. (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. (3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person. (4) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing. (5) In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings. CIRCUMSTANCES OF THE CASE 6 On 10 July 2006, the applicant made a development application to the respondent council for "Demolition of existing dwelling; subdivision of land into 2 lots; Extension of local road; and new driveway" at 362 Birrell Street, Tamarama. The council refused the application by notice of determination dated 4 December 2006. The applicant appealed to this Court. 7 The subject land does not have vehicular access. This is notwithstanding that the allotment fronts an unformed "road" as defined in the Roads Act. That road, Birrell Street, is vested in the council. The applicant is entitled, as of right, to access across the boundary of its land and Birrell Street under s 6(1) of the Roads Act which provides: The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road. 8 The applicant intends to exercise the right of access conferred by s 6(1). In order to give effect to that access, the applicant requires the construction of a partial extension of Birrell Street for a distance of about 40 metres from the point where it ceases to be formed to an alignment with the subject land sufficient to provide vehicular access. Such construction constitutes work in, on or over a public road which is prohibited otherwise than with the consent of the appropriate road authority under s 138(1) of the Roads Act which provides:

138 (1) A person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Maximum penalty: 10 penalty units. 9 A consent referred to in s 138(1) may be granted on the appropriate road authority's initiative or on the application of any person: s 139(1). Birrell Street is an existing public road, partly unmade, for which the respondent council is the roads authority under s 7. 10 The Statement of Environmental Effects accompanying the development application stated: "Accompanying the DA is an application under Section 138 of the NSW Roads Act 1993 proposing the construction of an extension of Birrell Street and a driveway access to the subject land". A separate piece of paper constituting such an application is not in evidence and may not have been enclosed. Nothing turns on that. It is plain that the applicant was intending to make an application for consent under s 138 of the Roads Act. The council proceeded on that basis because in its notice of determination one of the reasons that it gave for refusing the development application was: That Council refuse its owner's consent to the extension of Lower Birrell Street as proposed in development application No. 412/06 as the local road authority and vested owner of the subject land under Section 138 of the Roads Act 1993. 11 Other reasons for refusing the development application included the following that related specifically to the proposed formation of the unformed part of Birrell Street: … 6. Adequate access is provided to the site to service its reasonable future development and the provision of a road to the site is not warranted. 7. The proposal will result in safety concerns for motorists travelling east by providing an inappropriate stopping distance given the gradient of the road. 8. The proposed road gradient is considered excessive for a public roadway and is greater than the design standard maximum of 16%. 9. The application is incomplete and lacks Council's owner's consent for the construction of the proposed road, as required under Section 138 of the Roads Act 1993. … 12. There is no approval from the Council as the owner of the road reserve for the work to take place on the Council road. 13. This application does include works to the road and has not given sufficient information for the impact of that roadwork despite this only being a subdivision application. … 16. Council is not convinced that this application needs roadway access such that it would require a disruption to the existing use of the local road reserve. … 18. The proposal is not considered to be in the public interest, as it provides for the alienation [of] public open space for the creation of a road that provides limited and inadequate public benefit. 12 Thus there is a close interrelationship between the proposed roadwork and the development application for the subdivision. 13 There was a reference to "extension of local road" in the description of the proposal in the development application. However, the proposed construction works on Birrell Street are permissible without development consent. The road is zoned 6(a) pursuant to the Waverley Local Environmental Plan 1996. Under cl 4, roads are prima facie prohibited in that zone. However, by cl 43 and Sch 4 (item 8), no provision of that local environmental plan can operate to prohibit or restrict the construction of a road. PART 5 EPA ACT 14 The present case does not fall within Pt 4 of the EPA Act because no development consent is required for the proposed works on Birrell Street. However, as council consent under s 138 of the Roads Act is required for the proposed roadwork, the separate stream of regulation in Pt 5 of the EPA Act has to be satisfied before that consent can be given. This flows from the trigger for the application of Pt 5 (ss 110 to 115), namely, an "approval" for an "activity", as defined in s 110. 15 Pt 5 has two streams. The first stream is regulation of the manner of carrying out an activity where the determining authority is carrying out the activity itself. The second stream is regulation of matters by determining authorities when considering the grant of approval to activities by others, where the activities are not governed by Pt 4 of the EPA Act. The second stream applies in the present case. 16 Divisions 1 to 3 (ss 110 - 115) of Pt 5 are relevant. Division 1 comprises ss 110 to 110E. Section 110 is a definition section. The definition of "activity" in s 110(1) includes "the carrying out of a work" but excludes anything for which development consent under Pt 4 is required. "Determining authority" in relation to an "activity" is defined to include a "public authority whose approval is required in order to enable the activity to be carried out". These definitions trigger the application of Pt 5 as a separate stream of regulation from Pt 4. 17 The proposed roadwork in Birrell Street is an "activity" for which no development consent under Pt 4 is required. The respondent council, in relation to that activity, is a "determining authority" whose approval is required under s 138 of the Roads Act in order to enable the activity to be carried out. Thus Pt 5 applies to the consent required by s 138 of the Roads Act. As explained below, this means in the present case that s 111 in Pt 5 is engaged. 18 Division 2 of Pt 5 comprises s 111. This is the primary or pivotal provision in Pt 5. It casts an obligation on a determining authority in its consideration of an activity to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity. Section 111(1) provides:

111 (1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. 19 The s 111(1) obligation to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity, appears to give a more exacting content to the preceding umbrella phrase "consideration of an activity" than if that obligation were not expressed. In this respect s 111(1) may be contrasted, for example, with s 79C of the EPA Act which requires a consent authority, when determining a development application, to "take into consideration" prescribed relevant matters without the legislature giving any equivalent direction as to what such consideration includes. However, there must be imported into this statutory obligation under s 111(1) a concept of reasonableness. In Prineas v Forestry Commission of NSW (1983) 49 LGRA 402 at 417 Cripps J held: I do not think the obligation in s 111, that is to take into account to the fullest extent possible all matters affecting or likely to affect the environment imposes on a determining authority when preparing an environmental impact statement a standard of absolute perfection or a standard of compliance measured by no consideration other than whether it is possible in fact to carry out the investigation…In my opinion, there must be imported into the statutory obligation a concept of reasonableness…in my opinion, provided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decision-maker and members of the public and the Department of Environment and Planning to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standards imposed by the regulations. The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulations.

The Court of Appeal upheld the decision: (1984) 53 LGRA 160.

20 Section 111 is pivotal to a proper working of Pt 5 of the Act: Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 at 366 (CA). The duty under s 111 arises at the time of "consideration of an activity". Any additional duty imposed by s 112 arises, relevantly, when it is proposed to "grant an approval in relation to an activity": Jarasius v Forestry Commission of NSW [No 1] (1988) 71 LGRA 79 at 95 (Hemmings J). The determining authority has a duty under s 111, as a condition precedent to granting approval, to determine the extent to which an activity is likely to affect the environment: Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at 211 (Hemmings J). The duty to prepare and assess an environmental impact statement arises pursuant to s 112, if the carrying out of the activity is likely to significantly affect the environment (ibid). In Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 (CA) at [70] Mason P said: There is no reason to restrict the duty imposed by s 111 to any time frame in relation to an activity, at least in relation to a determining authority that carries out an activity...Division 3 supplements this duty in certain categories of activities for which an environmental impact statement is required, being the categories identified in s 112(1)" His Honour added at [100] " The concept of an activity within Pt 5 is protean…. Policy and political decisions are involved. Competing interests have to be weighed..." 21 Division 3 (ss 112 - 115) of Pt 5 concerns specified activities for which an environmental impact statement is required. As the present hearing is limited to preliminary questions of law, there is no evidence before the Court to indicate whether or not Div 3 might apply in the present case. Section 112 provides in part:

112 (1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, unless: (a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity: (i) prepared in the prescribed form and manner by or on behalf of the proponent, and (ii) except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner, (b) notice referred to in section 113(1) has been duly given by the determining authority (or, where a nominated determining authority has been nominated in relation to the activity, by the nominated determining authority), the period specified in the notice has expired and the determining authority has examined and considered any representations made to it or any other determining authority in accordance with section 113(2), (c) the determining authority has complied with section 113(3), (d) where it receives notice from the Director-General that the Minister has directed that an inquiry be held in accordance with section 119 with respect to the activity, the inquiry has been held and the determining authority has considered the findings and recommendations of the Commission of Inquiry and any advice given to it by the Minister in accordance with section 114, and (e) where it receives notice from the Director-General that the Director-General has decided that an examination be undertaken in accordance with section 113(5), that examination has been carried out and the determining authority has considered the report furnished to it in accordance with that subsection. (1A) A determining authority shall not grant an approval in relation to an activity referred to in subsection (1) that is to be carried out in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987 ) unless any consent to the activity required under that Act has been obtained. (1B) Without limiting subsection (1), a determining authority must not carry out an activity, or grant an approval in relation to an activity, being an activity that is in respect of land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, unless a species impact statement, or an environmental impact statement that includes a species impact statement, has been prepared (in each case) in accordance with Div 2 of Pt 6 of the Threatened Species Conservation Act 1995 . …

(2) The determining authority or nominated determining authority, as the case requires, shall, as soon as practicable after an environmental impact statement is obtained by or furnished to it, as referred to in subsection (1), but before giving notice under section 113(1), furnish to the Director-General a copy of the statement. …

(4) Before carrying out an activity referred to in subsection (1) or in determining whether to grant an approval in relation to such an activity, a determining authority which is satisfied that the activity will detrimentally affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats: (a) may, except where it is the proponent of the activity:

(i) impose such conditions or require such modifications as will in its opinion eliminate or reduce the detrimental effect of the activity on the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, or (ii) disapprove of the activity, or

(b) may, where it is the proponent of the activity:

(i) modify the proposed activity so as to eliminate or reduce the detrimental effect of the activity on the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, or (ii) refrain from undertaking the activity. …

(6) The provisions of subsection (4) have effect notwithstanding any other provisions of this Act (other than Pt 3A) or the provisions of any other Act or of any instrument made under this or any other Act. 22 Section 112C prohibits a determining authority (not being a Minister) from granting an approval to carry out an activity that is to be carried out in respect of land that is, or is part of, a critical habitat without the "concurrence" of the Director-General of National Parks and Wildlife. Section 112D prescribes matters that must be considered by the Director-General of National Parks and Wildlife as the concurrence authority. 23 Section 113 provides for the publicity and examination of environmental impact statements. Notice in the prescribed form and manner must be given that a copy of an environmental impact statement may be inspected at the office of the determining authority and the Department or other premises operated or controlled by them. Any person, during the period prescribed by the notice, may inspect the environmental impact statement (subject to a public interest confidentiality exception) and make submissions to the determining authority. The determining authority must forward the submissions to the Director-General and (if the activity is a scheduled activity under the Protection of the Environment Operations Act 1997) to the Environment Protection Authority. Except where the Minister has directed an inquiry under s 119, the Director-General may examine the environmental impact statement and any submissions, and, if it does so, shall forward to the determining authority a report containing findings and any "recommendations". 24 Section 114 provides that where the Minister has directed that an inquiry be held into an activity, the Minister shall forward a copy of the findings and recommendations to the determining authority and may give "advice" to the authority as to whether, in the Minister's opinion, there are or are not environmental grounds which would preclude the carrying out of the activity in various circumstances.

25 Section 115 provides that regulations may be made for or with respect to (among other things) the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment. Such regulations have been made: Pt 14 of the Environmental Planning and Assessment Regulation 2000. Clause 228(1) prescribes that one of those factors is, for activities of a kind for which specific guidelines are in force under that clause, the factors referred to in those guidelines. Such guidelines were issued by the Department of Urban Affairs and Planning in September 1996. They address when an environmental impact statement is required for a road. Clause 243 of the Environmental Planning and Assessment Regulation requires a determining authority to prepare a report on any activity for which an environmental impact statement has been prepared as soon as practicable after a decision is made by the determining authority to, relevantly, approve or disapprove the carrying out of the activity. The report must comment on and have regard to a number of prescribed matters. The determining authority must make the report public as soon as practicable after it has been completed. SCOPE OF SECTION 39(2) OF THE COURT ACT 26 The Court of Appeal has considered the ambit of s 39(2) of the Court Act in a number of cases, but not with one voice. It has been said that the language of s 39(2) is "wide and clear": Kogarah Municipal Council v Kent (1981) 46 LGRA 334 at 336 per Reynolds JA. On the other hand, it has also been said that it is "wide and ambiguous": McDougall v Warringah Shire Council (1993) 30 NSWLR 258 at 261 per Kirby P. 27 Initially, in 1981, the Court of Appeal in Kent gave s 39(2) a wide construction. Kent has never been overruled. But there are traces of a narrower approach in some later Court of Appeal decisions in the 1980's: Strathfield Municipal Council v Drew (1985) 1 NSWLR 338, North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740, Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 and Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104. Then Kirby P embraced the wider construction and upheld the authority of Kent in his powerful judgment in McDougall. Recently, the Court of Appeal unanimously held that the wider approach of Kirby P in McDougall "has much to commend it": Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329 at [60] per Tobias JA (Hodgson and Santow JJA agreeing). 28 In the seminal case of Kent the Court of Appeal held that the Land and Environment Court had power under s 39(2), when upholding an appeal from the refusal of the building application, to vary or abolish a building line fixed by the council pursuant to s 308(1) of the Local Government Act 1919, insofar as the proposed structure infringed it. The Court of Appeal's wide construction of s 39(2) was that it empowered the Court to exercise all functions and discretions open to the council when the application for approval was before it. Reynolds JA said at 336 that "the language of s 39(2)…is wide and clear and to me it means…that the court could do whatever the council could do to dispose of the appeal". Similarly, Hutley JA at 337 said "What the council could do, [the court] could do". Glass JA said at 337 "The application is such as to trigger the exercise of any relevant power vested in the council or court charged with the responsibility of accepting or rejecting the application absolutely or conditionally". 29 A narrower approach was taken in Drew. The majority there held that, on appeal from a deemed refusal of consent to a development application, this Court had no power to exercise a council power to give approval for a building (a crematorium) under s 51(2) of the Public Health Act 1902. That was because the latter power had "nothing to do with the development application as such" (at 345, per McHugh JA, Samuels JA agreeing). 30 In Mayoh a council planning ordinance provided that where it appeared to the council that the purpose for which land is reserved could not be carried into effect within a reasonable period, the council may approve the erection thereon of buildings and the carrying out of works. On an appeal from the council's refusal of a development application to erect a building and carry out works on land so reserved, the Court of Appeal held that s 39(2) of the Court Act empowered the Land and Environment Court to exercise the function of the council and form an opinion as to whether the purpose for which the land was reserved could not be carried into effect within a reasonable period. McHugh JA (with whom Hope and Samuels JJA agreed) held at 746 that when the temporal connection of the opinion and the development application were combined with the conditional nature of the power, which the council exercised in respect of an application for development approval, there was a high degree of persuasion in the contention that the formation of the opinion or conclusion was "in respect of the matter the subject of the appeal". It was said that a function of the council was "at the heart of the matter which is the subject of the appeal" and, therefore, within s 39(2) it was a function which the council "had in respect of the matter the subject of the appeal". It was acknowledged that there could be cases in which by express words or necessary intendment a planning instrument evinced an intention to exclude the s 39(2) power. 31 In Claude Neon a development application was made to a council for consent for a structure which projected over a public road owned by the council. Section 77(1)(b) of the EPA Act provided that a development application may be made by the owner of the land or by any other person with the owner's consent. The Court of Appeal held that the council as the owner of the road was empowered to give its consent to the making of the development application. If it did not do so and the applicant for consent appealed to the Land and Environment Court against the refusal of its development application, then by virtue of s 39(2) the Court had power to give its consent to the making of the application. Hope JA (with whom Priestley and Meagher JJA agreed) held at 732: "The giving of its consent to the making of an application for development approval is undoubtedly a function of the council, and it is a function the exercise of which is basic to its function to grant development approval in such a case. If the view which I have expressed is right, namely, that a council can give its consent to the lodging of an application by giving development approval, in my opinion s 39(2) places the Land and Environment Court, upon an appeal, in the same position as the council". 32 Claude Neon was followed by the Court of Appeal in Rovili. 33 In Paino v Woollahra Municipal Council (1990) 71 LGRA 62 Hemmings J applied Claude Neon and held that the Land and Environment Court had power under s 39(2) to give its consent to a development application to convert a public road owned by the council from a pedestrian to a vehicular way. His Honour observed that the functions or discretions that a council has in respect of the matter the subject of an appeal is a wider concept than the precise terms of its decision. That observation was noted without disapproval by the Court of Appeal in Ipoh at [52] and by Kirby P in McDougall at 264. 34 The authority of Kent and its broad approach were upheld by Kirby P in McDougall v Warringah Shire Council (1993) 30 NSWLR 258. In that case the appellant kept pigeons at his home in a loft erected for that purpose. The respondent council resolved to prohibit the keeping of pigeons on the property. It was empowered to make such a resolution by s 289(e) of the Local Government Act 1919. The appellant subsequently made a building application to the council to approve additions and alterations to, and relocation of, the pigeon loft. The application was refused. The applicant appealed to the Land and Environment Court. An issue was whether the Court, if it were to approve the building application, had the power under s 39(2) to vary, modify or rescind the council's resolution under s 289(e). The Court of Appeal held that it did have such power. Kirby P held at 264 that by s 39(2) it was intended that the Land and Environment Court: be placed fully in the shoes of a council at the time an application is lodged….The result of this interpretation is that all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval. 35 Kirby P powerfully identified and upheld the considerations of legal policy which favoured upholding an ample jurisdiction under s 39(2) as expounded in Kent, as follows (at 268): 1. The Court has never given leave for the re-argument of its holding in Kogarah Municipal Council v Kent . No application to re-argue the binding rule in that decision is recorded in Strathfield Municipal Council v Drew or in North Sydney Municipal Council v P D Mayoh Pty Ltd or the later cases which have favoured the formulation in Strathfield Municipal Council v Drew : see Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177F; 2. In Strathfield Municipal Council v Drew , where the narrower view was first propounded, Mahoney JA made it plain that the issue was " academic" and unnecessary to the determination of the case. The same might be said of Hope JA's comments in Sydney City Council v Claude Neon Ltd . In later cases, the gloss in Strathfield Municipal Council v Drew has generally been accepted without detailed consideration of its correctness or how it stands with the earlier holding of the Court in Kogarah Municipal Council v Kent . This may not be the final opinion of the Court where the resolution of the differences between the decisions of the Court needs to be achieved. However, it is appropriate to indicate that, in a suitable case where it is necessary to do so, the Court should resolve and decide between the tension which exists between the broad approach favoured in Kogarah Municipal Council v Kent and the narrower approach which was favoured in Strathfield Municipal Council v Drew ; 3. The words " in respect of" and " the matter the subject of the appeal" are words of extremely broad connection and wide denotation. As a grant of power for the resolution of appeals, they should not, simply as a matter of orthodox statutory construction, be given a narrow meaning; 4. One reason for adhering to the broad view adopted in Kogarah Municipal Council v Kent is that by s 39(2) jurisdiction is conferred on the Land and Environment Court. It is a superior court of record (s 5(1) of the Land and Environment Court Act ). Its judges have the same rank, title, status and precedence as a judge of the Supreme Court (s 9(2) of the Land and Environment Court Act ). The traditional view of the common law has been that such a grant of power to a court of such a status should not be narrowly construed but given a wide meaning out of recognition of the wide variety of circumstances with which such a court must typically deal; 5. Only a broad approach to s 39(2) ensures the general utility of the appeal which parliament has provided. The appeal grants a jurisdiction to the Land and Environment Court which does not otherwise exist - for example in the Supreme Court or any other court. It is a novel jurisdiction and one defensive of the rights of citizens with a relevant interest to challenge local government administrators. Such powers should not be narrowly construed. They should be given ample scope to achieve the statutory purpose of providing an appeal in such circumstances; 6. Unless a broad jurisdiction with ample powers be accepted, the Land and Environment Court may find itself rendered impotent to perform its appellate function. A resolution could be adopted by the council which effectively put the matter in issue beyond the court's power. The objector could be met by rejection of an application at the council and a defence, on appeal, that the subject was beyond the court's correction being otherwise than " necessary to" or "at the heart of" the matter the subject of the appeal. Although public law remedies would be available to attend to extreme cases where statutory powers were used otherwise than lawfully and reasonably, it should not be necessary for an objector to invoke such remedies where parliament has conferred a jurisdiction to hear appeals on a superior court and cloaked the court with powers widely defined; and 7. To the extent that there is ambiguity in the legislation and this Court must make a choice between the wide and narrow view illustrated in the above line of authority and discussion of policy, my own opinion is that legal principle favours the wider view. It is a view defensive of the basic rights of individuals in our form of society to act as they please in respect of their property unless by valid legislation, lawful administrative action or a binding judicial order their rights have been modified: see, eg, Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374. It is also a view which enhances judicial reconsideration of administrative action which experience teaches can sometimes be unlawful, unreasonable or unfair. A court exercising the powers of a council will be alert, in the way McHugh JA warned in North Sydney Municipal Council v P D Mayoh Pty Ltd , to the advantages which an elected council will sometimes enjoy in the assessment of political, community and financial issues. Courts do not have the democratic legitimacy which attaches to an elected council to whom local government officials are answerable. But these are reasons for caution in the exercise of statutory powers and in differing from the administrator's decision. They are not reasons for denying the existence of that power or for circumscribing the grant of power in a way that unduly diminishes its availability. 36 Mahoney JA said that the case depended upon two things: what is the "matter" the subject of the appeal; and whether the function of the council under s 289(e) of the Local Government Act 1919 is a function "in respect of" that matter. His Honour decided that the "matter" the subject of the appeal was the pigeon loft and that the function of the council under s 289(e) (to "control and regulate the keeping of animals") was a function "in respect of" that matter (at 270). His honour noted at 271 that many council functions will, in the widest sense, have a relationship to the "matter" of an application, but not all will be within the relationship "in respect of" the matter. For example, the Court could not exercise a council's function of imposing a rate even though approval of an application may involve the council in expenditure for which it would be appropriate to impose a rate.

37 Cripps JA referred to the dictum of McHugh JA in Mayoh that the function which the Court is empowered to exercise under s 39(2) is one which is "at the heart of the matter" the subject of the appeal. Cripps JA considered that "as a matter of commonsense, the Council, when considering matters relevant to the application, would consider the resolution…and the reasons for it. It was relevantly at the heart of the matter. The circumstance that it is not legally necessary for a resolution to be varied or modified does not, of itself, deny the power. In my opinion, the power exists provided there is a relevant nexus between the matter the subject of appeal and the discretion or function proposed to be exercised" (at 277 - 278). His Honour made the following additional observation which is of significance in the present case (at 278): If development consent had been required for the pigeon loft, that is, for its erection and use, plainly enough the Land and Environment Court would have the power to modify the resolution pro tanto: Kogarah Municipal Council v Kent . It would be a strange result that because planning consent is not required (either because no consent is necessary for a dwelling-house or because, if it is, it has already been granted and the pigeon loft is merely ancillary to that permitted use) the resolution cannot be varied… 38 In Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329 the Queen Victoria Building in Sydney was on land owned by the council as an investment asset and classified as "operational" land (as distinct from "community" land) under s 25 of the Local Government Act 1993. Ipoh was one of its tenants in the building. Ipoh lodged a development application with the council for the upgrading of elements of the building. Clause 49 of the Environmental Planning and Assessment Regulation 2000 provided that a development application may be made either by the owner of the land to which the application relates or by any other person with the owner's written consent. The council resolved not to grant owner's consent to the making of the development application. It did not determine the development application. As the council failed to determine the development application, it was deemed to have been refused: s 82(1) EPA Act. Ipoh appealed to the Land and Environment Court against the deemed refusal. The Court of Appeal affirmed that the Court's power under s 39(2) to give the owner's consent to the making of the development application where the owner of the land the subject of that application is the council, extends to land which is not a public road but which is public land owned by council as an investment asset. The Court of Appeal rejected the proposition that because such investment land was classified as "operational" land, the council was in the same position with respect to it as a private owner: at [86]. Tobias JA (with whom Hodgson JA substantially agreed and Santow JA agreed) summarised his reasons for decision as follows at [34]: (a) A council has two quite independent powers, namely: · To determine a development application as the consent authority under the EPA Act; · to consent to the making of that application in its capacity as the owner of the land the subject of the application. (b) A council therefore has the power to grant the owner's consent to the making of a development application as required by cl 49 of the Regulation. It has the power to do so before determining the application or it will be assumed to have done so if it grants development consent to the application. (c) The giving by the council of consent to the making of a development application with respect to its land for the purpose of cl 49 of the Regulation is an essential prerequisite to, and part of the process of, its determination of that application. That is to say, the giving of that consent is necessary to enable the council as the consent authority to exercise its function to grant development consent to the application if it be minded to do so. (d) If the development application is actually refused by the council or is deemed to have been refused, then the applicant has a right to appeal to the Court pursuant to s 97 of the EPA Act. (e) The Court cannot uphold any such appeal and grant development consent to the application unless the owner's consent to the making of the application has been given. (f) Where the land the subject of the application is owned by the council from whose decision the appeal is brought, its function in giving consent to the making of the application is an aspect of the power to grant or refuse development consent to the application. In other words, the giving of its consent as owner of the land only has one purpose which is to enable it to lawfully determine and dispose of the development application in accordance with the provisions of the EPA Act. (g) The Court cannot exercise its function of determining the appeal by the granting of development consent to the application, if it is otherwise minded to do so, without the owner of the land having given its consent to the making of the application. This is because it is basic to the function of granting consent to a development application that cl 49 of the Regulation be complied with. (h) The Court has the same powers and functions as the council from whose decision the appeal is brought. The matter the subject of the appeal for the purposes of s 39(2) of the Court Act is whether consent to the development application should be granted or refused. (i) As the owner of the land the subject of the application, the council has the power to give consent to the making of the application so as to permit of its lawful determination; it must follow that the Court has the same power as the council for the purpose of enabling it to determine the appeal by the granting or refusing of development consent to that application. (j) Accordingly, as the Court can do what the council can do, it must follow that the Court may, for the purpose of determining the subject matter of the appeal (namely, whether to grant or refuse development consent to the application), exercise the power of the council to give the necessary consent required by cl 49 of the Regulation so as to enable it to lawfully determine and dispose of the application the subject of the appeal. 39 Tobias JA referred to the wide view of the Court's jurisdiction favoured by Kirby P in McDougall and said at [60]: In my view, even the narrow approach referred to by Kirby P in MacDougall [sic] supports the primary judge's decision in the present case. Although it is not possible to say that the wider approach preferred by the President commands a majority in this Court, in my opinion it has much to commend it. Of course, I am not required to make any final comments on this point for the purposes of resolving the appeal in the present case. 40 Tobias JA referred to Cripps JA's judgment in McDougall at 278 that the s 39(2) "power exists provided there is a relevant nexus between the matter the subject of appeal and the discretion or function proposed to be exercised". Tobias JA said at 347: "If that is the correct test, then in my opinion there is a clear nexus between the determination of Ipoh's appeal against the Council's deemed refusal of its development application with respect to the QVB and the discretion or function of the Council in granting its consent to the making of that application without which the Court on the appeal would be deprived of jurisdiction to determine the matter the subject of the appeal in Ipoh's favour". 41 His Honour at [78] commented that the grant of consent by the Court to the making of the development application was "inextricably bound up" with the function or discretion "in respect of" the determination of the appeal. It was noted that the granting of consent by the Court to the making of Ipoh's development application does not carry with it any right to proceed with the development because whether it proceeds or not would depend on certain provisions of the lease: at [84]. 42 Two things are, in my view, clear about s 39(2). First, the words "in respect of" are wide. Secondly, the "matter" the subject of the appeal may be wider than the "decision" the subject of the appeal. The latter is apparent from the shift of language within s 39(2) from "decision" to "matter" and is supported by authority: Paino which was cited in Ipoh at [52] and McDougall at 264. If the phrase in s 39(2) "matter the subject of the appeal" was confined to the object of the Pt 4 development application which required development consent, there would be no need for s 39(2) because under s 80 of the EPA Act the consent authority must determine the application, under s 97 of the EPA Act an appeal lies, and under s 17 of the Court Act the jurisdiction of the Court to hear and determine the appeal is engaged. Section 39(2) gives to the Court, in addition, all the functions and discretions which the council had. 43 A difficulty in applying s 39(2) is that its scope has still not been settled by the Court of Appeal. However, in my view, the trend of the authorities favours the broad approach originally enunciated in Kent, powerfully supported by Kirby P in McDougall and recently and unanimously held in Ipoh to have "much to commend it". I respectfully agree with the broad approach. The result of that interpretation, as articulated by Kirby P in McDougall at 264 is that "all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval". Of course, the functions and discretions (as Cripps JA indicated in McDougall) must have a relevant nexus to the matter the subject of the appeal in order to be "in respect of " that matter. I take this to mean that if a development application is refused and something has a relevant nexus to it, s 39(2) throws a blanket over both, that is, empowers the Court to deal with both. 44 I propose to adopt the broad approach.

SUBMISSIONS 45 The respondent council submitted that s 39(2) of the Court Act is ousted by ss 111(1) and 112(6) of the EPA Act which require the determining authority to exercise the duties which each prescribe "notwithstanding…the provisions of any other Act". The quoted words, the council submitted, mean that s 39(2) of the Court Act is ousted and therefore only the determining authority, not the Court, can exercise those functions and discretions. I am unable to agree. Sections 111(1) and 112(6), in my view, are concerned with statutory provisions (if any) which might exclude or restrict the determining authority exercising the functions and discretions prescribed by those sections. Section 39(2) of the Court Act does not do that. It gives the Court, on an appeal against refusal of a development application, all the functions and discretions the council had in respect of the matter the subject of the appeal. 46 The council submitted that the following contextual considerations support the construction that the Pt 5 functions are not to be performed by the Court but by government decision-makers: (a) the purpose of Part 5 is to allow self-assessment of projects undertaken or regulated by public authorities; (b) there is no merit appeal from an unfavourable Part 5 decision because it was Parliament's intention that the Executive should have ultimate control over public projects or projects affecting public rights or interests, which typically are excluded from the system of development control under Part 4 by provisions such as the Schedule to the (repealed) Model Provisions 1980 ; (c) Part 5 imposes consultation and concurrence preconditions (s. 112C). These requirements would subject the Court to the control of a political officer or a bureaucrat, and it is highly improbable that Parliament intended to confer an inferior power on the Court and to jeopardise its independence; (d) Part 5 enables the Department of Planning to call in the proposal for examination (s 113(5)) or the Minister for Planning to direct a Commission of Inquiry (s 114). These powers also subject the Court to potentially damaging interference by political officers in its decision-making; (e) the machinery of public participation including the decision whether to prepare or accept an EIS [environmental impact statement] for exhibition would involve the court in public administration where it would be required to make contestable decisions, in particular a decision under s 113(2) to bar inspection of an environmental impact statement on public interest grounds. It would be embarrassing for the Court to review in the appeal a question whether it had acted properly in deciding to accept an environmental impact statement for exhibition. If there was non-compliance the Court would be amenable to judicial review: Smith v Wyong Shire Council (2003) 132 LGERA 148 (CA); and (f) it could not have been intended that the Court registry should become the place where an environmental impact statement should be inspected or that the Court should become responsible for exhibiting an environmental impact statement: s 113. 47 The council referred to Rundle v Tweed Shire Council (1989) 68 LGRA 308. That case concerned judicial review proceedings in relation to s 112. Bignold J said that it was not for the Court to determine for itself, on the material placed before it, whether the activity was likely to significantly affect the environment. It seems to me that there should be taken into account that his Honour was writing in the context of the principles applicable on judicial review, not in a merits review context such as the present. 48 The council referred to dicta in two cases which, however, did not involve a question under Pt 5 of the EPA Act but, rather, concerned practical difficulties with the Court assuming policy or administrative functions. The first is Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413 at [26] where Pain J remarked that "there are substantial practical difficulties in the Court receiving an EIS and overseeing the necessary public notification processes required by the EP&A Act for designated development, as it would presumably have to do if standing in the shoes of the council as the applicant argued." The applicant submits that, in the present case, substantial practical difficulties or not, jurisdiction flows under s 39(2) and that the regime in s 38 of the Court Act permits any difficulties to be addressed. The second case is Mirvac Projects No 2 Pty Ltd v Concord Municipal Council (1993) 81 LGERA 441. There the appellant appealed to the Court against the deemed refusal of a development application. The council's local environmental plan prohibited development until a development control plan had been adopted by the council for development on that land. No such development control plan had been adopted. Bannon J held that s 39(2) of the Court Act did not empower the Court to assume the council's function to adopt a development control plan so as to change the zoning of the subject land. His Honour said (at 444) that "many factors, architectural, economic and engineering might have to be considered. These matters are peculiarly within the province of the council". The applicant submits that this decision is inconsistent with McDougall and Kent. That may be so. 49 The applicant's submission emphasised three matters in particular. First, s 38 of the Court Act makes abundantly clear that Class 1 proceedings are not formal legal proceedings. The Court could, for example, have a table in its registry with an environmental impact statement on it which could be inspected pursuant to s 113, that the Court could obtain the concurrence prescribed by s 112C, and that it otherwise would be subject to the Pt 5 regime. Secondly, once the view was formed in the context of ss 111 and 112 that an environmental impact statement was required, the Court would have a discretion, if it was not provided by a party with an environmental impact statement, to decline to itself embark on obtaining one. Instead, it could dismiss the appeal. Thirdly, the requirement for the Court to consider whether an environmental impact statement is required, is not novel to Pt 5. Within Pt 4, s 78A (8) provides: (8) A development application must be accompanied by: (a) if the application is in respect of designated development - an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or (b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Div 2 of Pt 6 of the Threatened Species Conservation Act 1995 . 50 The applicant referred to Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733 where Jagot J held at [44] that if a developer offers during the hearing of an appeal under s 97 of the EPA Act to enter into a planning agreement, under s 39(2) of the Court Act the Court may exercise the functions of the consent authority to impose a condition in terms of the offer.

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.

CONCLUSION 67 For these reasons, in my opinion, each of the preliminary questions should be answered "Yes". 68 Costs are reserved. The exhibits may be returned. The proceedings will be listed for directions before the Registrar on 1 June 2007.

28/06/2007 - Date of Judgment omitted on cover page. - Paragraph(s) n/a

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