Greenwood v Warringah Council

Land and Environment Court (NSW)|2011-10-31|Before: Sheahan J

These Proceedings 129The Class 4 proceedings came on for hearing on 31 October 2011 and 3 November 2011, and this judgment was reserved. On 4 November 2011, I adjourned the Class 1 proceedings, pending delivery of this judgment ([18]-[23] above). 130In the final form of his (further amended) Class 4 summons (filed in court on 31 October 2011), Scott seeks from the court: "1 A declaration that the purported modification, on or about 17 October 1994, of Development Consent No: 87/455 (the First Consent) to insert 'condition 14' is null, void and of no effect. ... 3 Alternatively to order 1, a declaration that the whole of the purported modification, on or about 17 October 1994, of the First consent is null, void and of no effect. ... 5 A declaration that the recyling activities permitted by the First Consent are not limited to that of sandstone. 6 A declaration that the First Consent is not limited to the land area of former Mining Lease 47 but also includes the land area of ML 46 and ML 52, as set out in the plan of quarry restoration dated 29.10.1987 and identified in condition 1 of the First Consent. 7 The respondent pay the applicant's costs of the proceeding. 8 Such further or other order as the Court thinks fit." 131The respondent Council was directed by Pepper J, on 24 June 2011, to provide a Statement of Reasons for its decision to modify DA 87/455, including by the insertion of condition 14, imposing the sunset date of 1 January 2003. That Statement of Reasons (Exhibit G1) relevantly says as follows (emphasis added): "The Applicant was carrying out development on the land pursuant to a permissive occupancy, previously known as Mining Lease 47. It was a requirement of both the Mining Lease and the permissive occupancy that the land be restored after quarrying operations, and prior to the expiry of the Lease/permissive occupancy. As part of the assessment process for the s102 modification, by letter dated 3 March 1994, Council requested additional information including: The expected life of the quarrying operations; and The expected time frame of the restoration works. By letter dated 25 March 1994, Mr Scott Greenwood informed the Council that: 'We have a lease agreement with the Department of Conservation and Land Management which is until the year 2002. With our recycling of material we intend extending our landfill operation to meet the 2002 time limit on our lease agreement.' In the Report on the s102 modification to the Development Unit dated 6 October 1994, this information is taken into consideration, see for example page 2 of that Report: 'This recycling will extend the landfill operations to the year 2002, the year when the lease agreement expires...' Consistent with the limited life of the 'lease agreement', it was appropriate to limit the life of the consent (as amended) to the life of the lease agreement. To that end, condition 14 was recommended to be imposed. Having considered the matters set out in the Council's Statement of Reasons dated 22 June 2011 [not before the court] and, specifically those matter (sic) identified above, the delegate determined to approve the modification application subject to conditions, including condition 14." 132Scott was also directed to file with the court a list of Issues in Dispute, and did so on 27 September 2011, listing the following 6 matters: "1. Did s 102 of the Environmental Planning & Assessment Act 1979 (NSW) confer power upon the Council to modify the First Consent by adding the 'sunset clause' condition terminating that consent effective 1 January 2003 (Ground 1)? 2. Did the respondent deny the applicant procedural fairness in the course of its decision to modify the First Consent by adding the 'sunset clause' condition (Ground 2)? 3. Was the Council's decision to modify the First Consent by adding the 'sunset clause' condition invalid and/or ineffective because notice of the modification could not be given to the deceased Robert Greenwood and was not given to the applicant (Ground 3)? 4. Did the modification application lodged by Robert Greenwood in July 1993 lapse, abate or cease to be effective upon his death on 22 October 1993 so that the Council's later decision to modify the First Consent by adding the sunset clause was ineffective (Ground 4)? 5. Are the recycling activities permitted by the First Consent limited to that of sandstone? 6. Does the land area covered by the First Consent include the land area of ML 46, ML 47 and ML 52, as set out in the plan of quarry restoration dated 29.10.1987 and identified in condition 1 of the First Consent?" 133While counsel for both parties were content to argue the case under those six headings, there was also argument about existing use rights (Issue 7?). 134I will now outline how those seven matters were put to the court in the APOC, POD, and the parties' submissions on them. I will then set out some relevant statutory provisions raised in argument, before I consider what findings are appropriate.

Issue 1/Ground 1 - Power to impose the Sunset Clause.

135In APOC 16-19, Scott charges that the modification, by addition of the sunset clause, "purported to rescind rights" given by the 1987 consent, "in perpetually to undertake ... importation, stockpiling, recycling and resale of material". The rights operated in rem and attached to the premises. Neither Robert nor Scott requested, nor did either of them consent to, the addition of the time limit to the consent, as a condition of the modification, and Scott had no right of appeal (under s 102(5) of the EPA Act). 136In APOC 20-22, Scott argues either (1) that the Council's determination to insert the sunset clause either was "not reasonably capable of being regarded as related to the purpose for which the power conferred by s 102" (to modify a consent) was granted, or (2) that the determination, "did not constitute an approval of the modification application, or was otherwise outside the scope of the" s 102 power, rendering the insertion of the sunset clause "null, void, and of no effect". 137The respondent rejects these contentions (POD 16-22). It submits that a sufficient nexus exists between the sunset clause condition and the substance of the modification application for the court to uphold the imposition of condition 14.

138In APOC 23-27, Scott denies that he was aware, or had reason to believe, that a sunset clause would be inserted into the 1987 consent, and complains that that decision has affected his rights and interests. The respondent owed Scott a duty to accord him procedural fairness when making such a decision, but failed to inform him of, and/or invite comment on, any proposal to do so. As a result, the determination to insert the clause was "null, void, and of no effect". 139The respondent admits its duty to afford Scott procedural fairness, but says that the duty does not extend to cover what Scott complains was not done in this case (POD 23-27).

Issue 3/Ground 3 - Failure to give Scott notice of the modification 140This ground is put as an alternative to Grounds 1 and 2, and Scott argues (APOC 28) that the respondent did not give him written, or any, notice of the determination, but was aware that his address for service of notices in regard to the business and the premises was 58 Carawa Road, Cromer. As a result, the insertion of the sunset clause was "null, void and of no effect", or the Council's determination "never took effect". 141Scott does not assert that no notice was sent, only that none was sent to him. 142The respondent admits it was aware of Scott's Cromer address, but says it gave notice of the determination in strict accordance with the EPA Act (POD 28). It submits it has no statutory duty, specific to Scott, in this respect, and admits that it gave no notice to him.

Issue 4/Ground 4 - Abatement of the Modification Application 143Again as an alternative to Grounds 1-3, Scott claims (APOC 29) that the modification application was "personal to Robert", and not "transmissible or assignable", and, therefore, ceased to be current or effective when Robert died on 22 October 1993. Accordingly, the Council lacked power to modify the consent on 6 October 1994, and the decision to do so was "null, void, and of no effect", or never took effect, because notice could not be, and was not, given to Robert. 144The respondent denies all elements of this claim (POD 29). Some statutes make specific provision for processes to either abate or continue on the death of a party concerned, but there is neither a general rule, nor a specific provision, in the EPA Act regarding what happens to an undetermined modification application when the applicant dies. The respondent submits (par 49) that "no purpose consistent with the statutory scheme in the EPA Act is achieved by treating the Modification Application as a nullity" because of Robert's death.

Issues 5 and 6 - Construction of the 1987 Consent 145Issues 5 and 6 concern the proper construction of the 1987 consent (APOC 30-1). Scott contends (1) that the permitted recycling activities were not limited to sandstone, and (2) that the area approved was not limited to ML 47, but included MLs 46 and 52, because the PO was not so limited, and the approved consent plan shows that whole area. If the sunset clause fails, it can be severed from the balance of the modification notice (Interpretation Act 1987, s 32). 146The respondent denies these contentions (POD 30-1). It says that the 1987 consent, both before and after modification, clearly applied only to ML 47, as it was granted and modified in reliance on existing use rights, which attached only to ML 47. While the drafting of condition 8 may have been, and remains, rather clumsy, the intention of all parties - both of the Greenwoods, and the Council - was to expand the range of materials, but also continue to limit it.

Issue 7 - the Existing Use argument 147During the Council's submissions on the construction issues, Mr Hemmings sought to put some emphasis on the fact that the operation enjoyed existing use rights. He asked Mr Burgess (T3.11.11, p22) to concede (LL18-19) that "ML Application 443 is in fact the mining lease application for ML 47". 148Mr Burgess protested that the Council's argument that "any existing use rights were limited to ML 47" (T p23, LL9-10) went beyond the issues articulated in the APOC and POD and, as no particulars were provided, Scott had not taken the opportunity to put on any evidence about it. As it worked an unfairness on Scott for it to be raised at such a late stage of the proceedings, the court should not entertain it. He emphasised that more land area than ML 47 was shown on the map for MLA 443 (at Exhibit C1, tab 4). 149Mr Hemmings responded that Scott bears the onus on all matters, including any assertion that any use of MLs 46 and 52 is lawful. The lawfulness of such use was clearly denied in the POD - properly construed, the DC and its associated plans do not allow for it - and the Council served very early its submissions and all the materials (in Exhibit C1) upon which it relied for resisting the claims made. Scott chose not to seek any particulars of the defence filed by the respondent. 150The map of MLA 443 (at tab 4) depicts both ML 46 and ML 47 (and other areas or features of the land), but the application for the ML was made in relation to the area which is most particularly specified on it (by precise bearings/coordinates), and that is clearly ML 47. I am satisfied on that point by the evidence before me, and do not need Scott to make the concession. I am equally clearly satisfied that ML 47, and only ML 47, enjoyed existing use rights in 1987, and continues to do so. 151I will now set out some statutory provisions relevant to the court's consideration of those issues.

The Planning Regime at the relevant time 152During the relevant period July 1993-October 1994, the provisions of the EPA Act were different from those which now apply. 153In Part 4 of the Act, as it stood at the relevant time, Division 1 (sections 75 onwards) dealt with the making (s 77) and determination (s 91) of DAs. Objections to designated development were dealt with in ss 84-89, with s 87 providing for objectors to make submissions. The matters for consideration by the consent authority were listed in s 90. A DA could be determined (s 91) by the granting of consent, either conditionally or unconditionally, or by its refusal. The period during which development may be carried out in accordance with a consent granted could be stipulated in the conditions - see s 91(3)(d). Section 92 dealt with the giving of notice of the determination to the applicant; s 93 dealt with the consent's commencement date; and s 95 dealt with notification to objectors, and other persons who made submissions, when an application for designated development was determined. 154That part of the Act dealt also with the question of contributions, deemed refusal, appeals, lapsing, and other matters, before coming to the question of modification of consents, in s 102: 155Modifications sought by an original applicant, or another person acting upon a consent, were allowed where the consent authority was satisfied that the development remained substantially the same development, that no prejudice would be caused to an original objector, and there had been consultation with any relevant Minister or public authority. The consent authority had to consider the matters specified in the then s 90 which were relevant to the modification. Subsections (4), (5) and (5A) of s 102 provided as follows: "(4) Modification of a development consent in accordance with this section shall not be construed as the granting of development consent under this Division but a reference in this or any other Act to a development consent shall be a reference to the development consent so modified. (5) A person making an application under subsection (1), and dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days of the application being made, may, except where the application is made in relation to a consent granted by the Minister under section 101, or except as may otherwise be provided by this section, appeal to the Court, and the Court may determine the appeal. (5A) Nothing in subsection (5) enables an appeal to be made against the determination of, or the failure to determine, an application to modify a development consent, being a development consent granted by the Court". 156Section 153 dealt with notices in the following terms (emphasis added): "(1) Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served - (a) in the case of an individual: (i) by delivering it to him; or (ii) by sending it by prepaid post addressed to him at the address, if any, specified by him for the giving of notices or service of documents under this Act, or, where no such address is specified, at his usual or last known place of abode or his last known place of business; or (b) in the case of a person not being an individual: (i) by leaving it at that person's place of business, or, if that person is a corporation, at the registered office of that corporation, with a person apparently not less than 16 years of age and apparently in the service of the person to whom the notice or other document is required to be given or on whom the notice or other document is required to be served; or (ii) by sending it by prepaid post addressed to that person at the address, if any, specified by that person for the giving of notices or service of documents under this Act, or, where no such address is specified, at that person's last known place of business. (2) A notice or other document shall, in respect of a notice or other document sent by prepaid post in accordance with subsection (1)(a)(ii) or (b)(ii), be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post". 157The Regulation, agreed between counsel to be in relevant and applicable terms, for the purposes of this case, is the Environmental Planning and Assessment Regulation 1994, which commenced on 1 September 1994, and Part 7 (cls 68-71) dealt with Notices of Determination of DCs, to applicants (s 92), and objectors (s 95). Forms were provided in the Regulations for such notices. Clause 69 requires a s 92 notice to be sent to the applicant within 14 days of the determination to which it relates, but specifically provides that failure to send the notice in that time does not affect the validity of the notice or the consent to which it relates. 158Division 3 of the Regulation (cls 75-80) provided a prescribed form for an application under s 102, and a process for giving notice of an application. The application to modify had to contain the name and address of the owner, the address of the land, together with details of the consent, and the proposed modification. 159Clause 79 of the Regulation dealt with Notice of Determination of a Modification Application in the following terms (emphasis added): "(1) Notice in writing of the determination of an application for the modification of a development consent must be given to the applicant as soon as practicable after the determination is made. (2) If the determination is made by the granting of development consent subject to conditions or by refusing development consent, the notice: (a) must indicate the consent authority's reasons for the imposition of the conditions or the refusal; and (b) must state that the Act gives a right of appeal against the determination".

Interpretation Act 160During argument some reliance was placed on s 32 of the Interpretation Act 1987, which provides as follows: "Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made." 161The word "instrument" is used in s 32, and defined in s 3(1) to mean "an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument."

The Administration of Robert's estate 162In view of the complications caused in this case by the death of Robert, prior to the determination of his application for modification, it is appropriate to have regard to two particular provisions of the Probate and Administration Act 1898 ('P&A Act'). 163Section 61 provides as follows (some emphasis added): "Property of deceased to vest in NSW Trustee From and after the decease of any person dying testate or intestate, and until probate, or administration, or an order to collect is granted in respect of the deceased person's estate, the real and personal estate of such deceased person shall be deemed to be vested in the NSW Trustee in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary in England". 164Section 44(1) provides (again some emphasis added): "Real and personal estate to vest in executor or administrator (1) Upon the grant of probate of the will or administration of the estate of any person dying after the passing of this Act, all real and personal estate which any such person dies seised or possessed of or entitled to in New South Wales, shall as from the death of such person pass to and become vested in the executor to whom probate has been granted or administrator for all the person's estate and interest therein in the manner following, that is to say: (a) On testacy in the executor or administrator with the will annexed. (b) On intestacy in the administrator. (c) On partial intestacy in the executor or administrator with the will annexed."

165Given how the parties agreed that the court should deal with the matter ([22] above), I shall now address, in turn, all the key issues upon which findings have been sought.

The Modification Power 166It was thought, following Stein J's decision in Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257 ('Benalup'), that a consent authority had no power to modify (under s 102, c.f. s 91 - see [153]-[155] above), other than in the terms applied for, unless the applicant for modification consented to terms proposed by the consent authority. 167The majority of the Court of Appeal (per Mason P) in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 ('Standley') questioned the correctness of Benalup, and Stein JA, who also sat on that appeal, was prepared to accept that courts should revisit the question of whether there should be implied in s 102 the power to approve conditionally (see Mason P at 475-6, and Stein JA at 482). 168In general terms, the law is that, if there is a power to impose conditions on those affected by the exercise of a power, the conditions must be "not inconsistent with the purpose for which the power is granted": Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, at 469-70 per McHugh J. 169In Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508, Spigelman CJ said (at [13]) that a purported exercise of a power to determine a DA "will not be valid unless it constitutes a 'consent to that application'" (my emphasis). The same principle must apply to an application for a modification. 170Bignold and Talbot JJ seemed to favour the Standley view over the Benalup view in, respectively, Captain Cook Cruises Pty Ltd v North Sydney Council [2002] NSWLEC 243; (2002) 126 LGERA 233, and Woolworths Ltd v Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 350, but did not need to decide the point. 171However, the Benalup/Standley question arose again, squarely, in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 ('1643'). 172McClellan J, then Chief Judge of this court, endorsed Mason P's observations in Standley, construing the modification power (now in s 96) as including an implied power to impose conditions on the approval of the modification. His Honour was careful to point out that the current power in s 96 is broader than the former power in s 102, and said (at [37]): "Furthermore, to my mind there is a difference between s 102 and s 96 which is of significance when reconsidering whether the decision in Benalup should continue to be followed. Section 102 only permitted modification when the consent authority was satisfied "that no prejudice will be caused to any person who objected" to the development application. Section 96 provides for modification both in circumstances where the modification involves "minimal environmental impact" and otherwise, clearly contemplating that modification which brings adverse impacts may be approved. The only constraint on the breadth of the power is that the modified development must be "substantially the same" as that which was originally approved. It would be surprising if, although there is a more liberal capacity to approve an application for modification, there was no capacity, without the agreement of the applicant, to impose conditions on that approval". 173McClellan J added (at [51]): "Ultimately the limits of the discretion which may be exercised by a consent authority will be defined by the matters raised for consideration by the application. Accordingly, when an application to modify one aspect of a development is lodged, the consent authority must consider the matters under s 79C(1) relevant to the aspects of the development to which the application relates. Accordingly, if an application is made to modify the height of a building, consideration of any matter which is either directly or indirectly related to height will arise for consideration. If an application is made to change the approved colour of a building, matters relevant to colour must be considered. This could, in an unusual case, extend to the apparent height or bulk of the building. However, an application to change the colour of a building could not provide a basis to reconsider the provision of car parking for the development. The matter of car parking simply does not arise. I do not understand the President to be suggesting otherwise." 1741643 was followed by Jagot J in King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362, and its authority does not appear to have been challenged since. Her Honour said in King at [104]-[106]: "104. I have also concluded above that I must reject the Council's submission that the roadwork condition related to "the same planning matter" as the s 94 conditions. It is obviously difficult to define the extent of the power to impose conditions in advance of any actual exercise of power. The "same planning matter" formula used by McClellan J at [52] in 1643 Pittwater Road, in my view, was not intended to suggest that any condition whatsoever, impinging upon the same topic no matter how tangential to it, would be within power. 105. I accept the applicants' submissions that, on the particular facts in this case, the roadwork conditions were so far outside the scope of the modification applications that the modification approvals incorporating the roadwork conditions were not authorised by the implied conditioning power in s 96. It seems to me that the facts are analogous to the observations of Stein JA in Winn v Director-General of National Parks and Wildlife and Others (2001) 130 LGERA 508 at [206] - [211]. That is, the roadwork conditions had the effect of so significantly altering the modifications for which approval had been sought, that the approvals were not approvals of the modification applications at all. They were a unilateral act by the Council outside power. 106. One rationale identified by Stein JA in Winn for the existence of the principle that the consent must be capable of being characterised as a consent to the application lodged, is the potential for diminution of the participation rights of objectors (at [210]). This rationale, in my view, applies equally to modification applications. In this case, potential objectors had no opportunity to comment on the imposition of conditions on the subdivision consents requiring the upgrading of Eusdale Road - in circumstances where that very activity had been identified in the documents before the Council as potentially having a significant impact on a threatened species. As such, I am satisfied that this ground of challenge to the validity of the roadwork conditions should also be upheld." 175Mr Burgess made a "formal" submission that I ought to follow Benalup in this case. That would render Council's decision to modify the 1987 consent by adding the sunset clause invalid, because that condition was neither requested, nor consented to, by either the applicant for modification, or the present applicant for relief. The Council asserts that its assessment process was lengthy and comprehensive, but neither of the Greenwoods was alerted to the prospect that a sunset clause could be imposed. 176Even if there be an implied power to condition the grant of approval under s 102(1), that power is a lesser power than the power to grant the modification, which must accord with the application, and could not have supported the Council's decision to add the sunset clause in the present case. Mr Burgess submits that there can be no doubt that the Council's decision to add the sunset clause cannot properly be characterised as an approval of Robert's application. 177The Council relies, for the validity of the sunset clause, on the focus of all players, during assessment of the modification application, on the likely lifespan of the operation, and on not "filling" the site too soon/quickly. However, while the ML was due to expire in 2002, that was not certainly the end of the matter, as MLs are frequently extended, as they have been in respect of the land in this case. Mention of a current date of expiry cannot properly enliven any implied power to impose a sunset clause under s 102. 178Robert's and Scott's focus was on the addition, to the 1987 approval, of types of material (fol 158), and the modification Robert sought was acknowledged by the Council to be minor (fol 198), but the sunset clause had the drastic and prejudicial consequence of terminating the whole of the 1987 consent, effective 1 January 2003, and the operation of that sunset clause was not limited to the new materials nominated in the modification application. 179I am satisfied that Benalup ought not now be followed, but I am not satisfied of the adequacy of the "nexus" between a sunset clause on the whole consent and the subject matter of the application at hand. I, therefore, do not accept that clause 14 is a valid condition. 180Council clearly had power to impose all the other new conditions - to which neither Robert nor Scott objected - and condition 14 can and should be severed from the modification approval, and from the consent, as modified: Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72; (1970) 68 LGR 301 at 102, Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1; (1972) 30 LGRA 19, at 4-5; and Crichton v City of Moorabbin [1992] 2 VR 372 ('Crichton'), at 384ff. See also discussion in Aronson, Dyer and Groves, "Judicial Review of Administrative Action", 4th ed, 2009, sec.10.160ff, at pp736-7.

Procedural Fairness 181As already noted, the respondent Council admits its duty to afford Scott procedural fairness, but disputes the scope of what that duty required in this case. 182As noted in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, at [25], procedural fairness requires a fair process, and perhaps a hearing, but not a fair outcome. It concerns the process, not the actual decision. See also Biscoe J in Kennedy v New South Wales Minister for Planning [2010] NSWLEC 240, at [106]-[108]. 183Scott's procedural fairness claim is based on the failure of the respondent to inform Robert or himself that it was considering inserting a sunset clause, and to invite him to comment on such a proposal before Council determined to do so, thereby giving him an opportunity to be heard. 184I respectfully endorse the summary of the principles of procedural fairness set out by Biscoe J in Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 ('Calardu') at [171]-[180]. His Honour referred to important authorities including Kioa v West [1985] HCA 81; (1985) 159 CLR 550 ('Kioa'), Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165; (2008) 160 LGERA 50 ('Harvey'), and Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 ('Tubbo', the appeal in Harvey). A right to be informed of, and heard on, the nature and content of material adverse to a party is well established: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, and 187 Kent Pty Ltd v Council of the City of Sydney [2007] NSWLEC 382. 185In Kioa (at 584-5), Mason J described the common law duty of procedural fairness in these terms: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. ... But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly... Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute [i.e.] ... on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting... In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations... When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned." 186In Tubbo (at [54]), Spigelman CJ, in upholding Jagot J's decision at first instance (in Harvey), held that procedural fairness was required in planning matters unless the EPA Act manifested a clear intention that it was not. The question for the court is, then, what was the content of the duty (Calardu at [174]). 187As a right of appeal is allowed under the EPA Act, in respect of conditions of approval, there is no statutory requirement for an applicant to be put on notice of a Council's consideration of conditions proposed to be imposed on approval of it. The Council communicated extensively with both Robert and Scott during the assessment of the modification application (see Exhibit C1, tabs 51-67), and says that fairness did not require a separate "hearing" regarding the possible imposition of a time limit. Tubbo does not require disclosure of a proposed conclusion unless it is of a character that could not reasonably be anticipated. 188Jagot J recognised in King (at [114]) situations where a right of appeal is "not a complete answer to a denial of procedural fairness", but I accept that a right of appeal can normally be accepted to be adequate for the purpose of affording an applicant procedural fairness. The courts retain a discretion to grant other relief if justified in the circumstances of the case. See Fitzgerald JA in Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161, at [164]. 189The respondent contends that, as there was a right of appeal in this case and it was not exercised, there is nothing to suggest that any other relief is necessary. 190I do not agree with that submission. 191Robert's modification application was under consideration at Council for 15 months (July 1993-October 1994), during which time Scott took over the Greenwood operation, and submitted his own DA (August 1994). He had no notice of the offending condition which Council imposed on the modification approval (October 1994), so an appeal was not available to him for that and a number of other reasons, not least because he was neither the applicant nor his executor, but also because he was not notified of the decision. 192Time periods were discussed with him, but not time limits. Even imposition of a time limit on any expansion of the approved range of materials was not canvassed, let alone a time limit on the entire Greenwood operation. 193I find that, on the evidence, although the fact was not admitted by Council in its POD, Scott was known to Council to be in charge of that operation, and, without any notice, lost the full benefit of the 1987 consent. He could not reasonably have anticipated such a complication (Tubbo), was thereby denied procedural fairness, in both process and outcome, and I believe he is entitled to relief from this court.

Notification of the Decision 194It is well established that "an approval or consent cannot be complete and efficacious until communicated to the person intended to act on it": per Gibbs J in Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350, at 359; (1974) 30 LGRA 237, at 244. (See also Bignold J in Panagopoulos v Willoughby City Council (1992) 78 LGERA 270). 195Modifications may be sought by the original applicant for consent, or by another person entitled to act on the consent (s 96(1)). In the present case, Robert was both the original applicant for consent, and the applicant for the modification, but Scott became, on Robert's death and certainly after his estate was administered, a person entitled to act on the consent. See discussion of ss 44 and 61 of what is now the P&A Act ([162]-[164] above), by Gibbs J in Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 ('Laybutt'), at 77-8. 196As Craig J noted in Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223; (2010) 177 LGERA 312 ('Betohuwisa'), a case, like this, brought by a successor in title to the party which made the relevant application, the EPA Act clearly requires the identification of a single legal entity with which the consent authority must deal. At the time Council concluded its assessment of the Greenwood modification, it does not appear to have had any official notification from, or dealings with, the executor of Robert's estate - the evidence shows only a communication in early 1995 (some five months after probate was granted). However, Council had been dealing with Scott, but there was no substitution of him as the applicant for the modification. 197Scott does not dispute that the letter of 17 October 1994 was sent out by Council, but complains that it was sent to an address that did not conform with the requirements of cl 79 and s 153. Certainly, it was addressed to a person Council knew to be dead, and not even to his estate, or its executor. Council has not explained why, and speculates that the modification notice must have come to Scott's attention, because of his association with the relevant address, rendering "substantial" its compliance with the notice required. 198The duty on Council does not extend to guaranteeing the receipt of the letter/notice - see Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170, Clark and Davis v Wollongong City Council [2008] NSWLEC 110, and Casa v City of Ryde Council [2009] NSWLEC 212; (2009) 172 LGERA 398. 199Scott submits that a consent authority cannot give valid and effective notice by forwarding correspondence to a person known by it to be dead. Council has admitted that no notice, written or otherwise, was given to Scott, and he has sworn that he did not receive it, that he did not live at the address to which the notice was despatched, and that his relationship with his mother had deteriorated by that time to the extent of his taking proceedings against her, about Robert's will, while she continued to live at the relevant address (86 Myoora Road). 200In Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 45; (2010) 174 LGERA 67 at [214]-[222], the Court of Appeal found that a failure to give notice did not lead to invalidity, because, on the facts of that case, it caused little prejudice. However, the prejudice caused in the present case is real and serious, and Scott has been forced to commence these proceedings in order continue with the business which is his livelihood. 201Robert's modification application, in fact, contained two addresses - PO Box 248, Terrey Hills, and 86 Myoora Road, Terrey Hills. Either could properly have been regarded as the "address of the applicant for the approval". The Council's use of that second address demonstrates, in my view, compliance - I accept "strict" compliance, rather than merely "substantial" compliance - with the requirements of the Regulation and s 153 ([156]-[159] above). 202However, Council cannot rely on that compliant notification to satisfy a duty, as a matter of fairness, to notify Scott, as the known principal at the time of the business involved. 203Even if I am wrong in finding strict compliance, Council's failure to strictly comply with the notice requirement does not lead to invalidity. See Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148, and cl 69 of the Regulation.

Abatement 204On the ground which the Council describes as "abatement", and Scott as "lapsing", of the modification application (as distinct from the transmission of rights beyond the date of the applicant's death), the EPA Act is silent. 205Some statutes, including the Mining Act 1992 (s 134), make specific provision for such events, but the question whether statutory rights of this kind are to survive death depends upon the intention of the legislature. There does not appear to be any general or presumptive rule; but, certainly, in Laybutt, Gibbs J took a generous view of a circumstance where a widow, who was both executor and beneficiary, purported to exercise an option granted to her husband. See also The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303 ('Haigh'), the cases cited therein, and discussion at [52]-[75]. 206In Haigh, the Tribunal held that the planning proceedings abated on the death of Mr Haigh, but there is nothing in the EPA Act to suggest any legislative intention that a modification application will "abate" or "lapse" if an applicant dies prior to its determination. The fundamental starting point is that consents operate in rem, and run with the land. They are not dependent on continuation of a particular title to the land (but, on this point, see Crichton at p381.30, a case which, incidentally, identified an underlying planning justification for a time-limiting condition). 207The Federal Court said in Stephenson v Human Rights & Equal Opportunity Commissioner (1996) 68 FCR 290, at 296-297: "Where a right of action is created by statute, guidance must be sought in the statute itself; a Parliament that creates a cause of action may ordain as it pleases in relation to the cause of action's survival on death of a party. And the same principle applies in relation to a statutory entitlement that falls short of constituting a 'cause of action', as lawyers use that term, or a statutory proceeding." 208The Council submits (par 49) that no purpose consistent with the statutory scheme in the EPA Act would be achieved by treating the modification application as a nullity because Robert died prior to its determination; and that it is not necessary for the court to determine whether the modification is properly considered as personal to Robert, or if the determination to modify the consent was never perfected because the deceased could not be given notice. When Robert died, his estate was legally able to progress the application, prosecute an appeal, and take the benefit of either. 209Council draws attention to the operation of s 102(5) in the event of an applicant's death occurring after both approval and a grant of probate, and to the operation of Part 10, r 8 (of the Supreme Court Rules 1970, applicable at the time) regarding the right to commence an appeal in relation to dissatisfaction with the condition. Any of Robert's children could have been substituted as a party to such appeal. The Council relies on an order made, without controversy, in Hunter Wine Services Pty Ltd v Muswellbrook Shire Council [2008] NSWLEC 1390, substituting an applicant in a Class 1 proceeding, in the event of an untimely death, but that order was made, by consent, by a Commissioner, and its appropriateness at law does not appear to have been argued. 210Once Robert died, Scott began using the land for purposes consistent with the modified consent (see Scott, par 6, and Exhibit C1, tab 61, fol 184). He managed the operation from the date of Robert's death, though ownership did not pass to him, by operation of ss 44(1) and 61 of the P&A Act, until the executor distributed Robert's estate, implementing the gift in the will (par 3 quoted in [89] above). The Council argues that the correspondence between Scott and the Council was consistent with Scott's acting as a nominated executor, as well as a beneficiary, but there is no evidence to support that contention - Council was corresponding with Scott as the known operator of the site. Likewise, there is no evidence before the court of any consultation between Council and the executor who secured probate on 8 February 1994. 211I prefer the view that the modification application did not abate or lapse on Robert's death. The Haigh line suggests that Robert's modification application is "personal" to him, and so dies with him, but I find that inconsistent with the "in rem" nature of planning approvals, and I reject the contention that an outcome which suggests survivorship is inconsistent with the legislative scheme in the EPA Act.

Construction issues 212The rules and principles governing the construction of consents, and their conditions, are now, after long debate, well settled. I exhaustively surveyed the authorities recently, in Quarry Products (Newcastle) Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57, and I adopt that analysis for the purposes of this judgment. 213The PO may have contemplated operations over a wider area of the Greenwood land, but it is the planning approvals which dictate the scope of the operation, in respect of both land area and materials. 214By its terms, the 1987 consent as modified, applies only to ML 909 (formerly ML 47). So much is clearly apparent from the plan (at Exhibit C1, tab 67, fol 197). The original 1987 consent relied upon existing use rights, and, as I have already found, those rights were and are limited to ML 47. It would, therefore, have been beyond power to grant the DC, or the later modification of it, in respect of any land other than ML 47 (Interpretation Act s32). 215Council accepts that condition 8 could have been better drafted, but conditions are not to be construed as if they had been drafted by lawyers. They are to be construed, where possible, to give effect to their substantive intention, and to achieve practical results. Some degree of ambiguity/uncertainty in their terms will not necessarily lead to a finding of invalidity: Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227; Westfield Management Ltd v Perpetual Trustee Company Limited [2006] NSWCA 245; and Fokas v Kogarah RSL Club [2012] NSWLEC 136. The intention of the modification application in this case was clear - to expand, but continue to limit, the range of materials that could be imported, recycled and resold at/on the subject site. 216The change to condition 8 is not challenged. Hence, the 1987 consent, as validly modified, is not limited to screening of imported materials for recycling of only sandstone, but now covers screening of imported materials for the recycling of sandstone, soil, masonry, and vegetation ([75] c.f. [108]). As Mr Burgess reminded the court (T3.11.11, p4, L31-p5, L7), the decision in Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 makes clear (at 324) that Council must "take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject". 217Council contends that the consent in those terms ceased to be effective on 1 January 2003, but I reject that submission.

Conclusion 218Having expressed my concluded views on the questions of existing use rights, the power to modify consents and impose conditions, procedural fairness, notice requirements, abatement of applications, and construction of consents and their conditions, arrangements must now be made for the further disposition of both the Class 4 and the Class 1 proceedings. 219I, therefore, make the following orders:

In respect of Matter No 40404 of 2011, the parties are directed to confer on: (a) orders reflecting the findings and reasons in this judgment, and (b) the question of the costs of the proceedings.
In respect of Matter No 10405 of 2011, the order made in Chambers on 4 November 2011, adjourning the proceedings to a date seven days after delivery of this judgment, is hereby vacated.
Both matters are to be listed together before me for mention, the making of any consent orders, and for any necessary directions for their further conduct, at 4pm Monday 6 August 2012. 220The exhibits are to remain with the court files until that date.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2012

Assessment Act 1979(NSW)

(Kent) Ltd [1971] AC 72; (1970) 68 LGR 301 King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 45; (2010) 174 LGERA 67 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 Quarry Products (Newcastle) Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57 Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170 Smith v Wyong Shire Council [2003] NSWCA 322; (2003)132 LGERA 148 Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1; (1972) 30 LGRA 19 Stephenson v Human Rights & Equal Opportunity Commissioner (1996) 68 FCR 290 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303 Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 Westfield Management Ltd v Perpetual Trustee Company Limited [2006] NSWCA 245 Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Woolworths Ltd v Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 350 Texts Cited: Judicial Review of Administrative Action, 4th ed, 2009 Category: Principal judgment Parties: Scott Robert Greenwood (Applicant) Warringah Council (Respondent) Representation: Mr C Burgess (Applicant) Mr I Hemmings (Respondent) Michael Flaherty Solicitors (Applicant) Storey & Gough (Respondent) File Number(s): 40404 of 2011 & 10405 of 2011

(2010) 177 LGERA 312

(2002) 126 LGERA 233

(2009) 172 LGERA 398

(2006) 150 LGERA 362

(2007) 158 LGERA 170

(2001) 130 LGERA 508

(2003) 132 LGERA 148

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