Hamod v Minister for Urban Affairs and Planning & Anor

JUDICIAL REVIEW :- local government - delegation to general manager under resolution concerning approval of particular development applications - delegation made subject to conditions provided in the resolution - resolution ineffective as indivisable discretionary function was delegated - resolution itself did not constitute development approval - subsequent valid revocation of delegation pursuant to s 372 Local Government Act 1993 - valid referral of development approval to Minister under s 88A Environmental Planning and Assessment Act 1979. KEY ISSUES: Procedural Fairness :- procedural fairness requirement for particular decision made under s 88A Environmental Planning and Assessment Act 1979 satisfied exclusively by merits appeal pursuant to s 97 - court unable to extend specific time period for appeal provided in s 97 - rejection of submission that the Minister failed to take into account relevant considerations in particular s 88A decision.

Environmental Planning and Assessment Act 1979 ss 80, 82(1), 88A, 97 LEGISLATION CITED: Land and Environment Court Act 1979 s 20 Local Government Act 1993 s 372 Wollongong Local Environmental Plan 1990 cll 17, 38A

Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450 Ex Parte Renouf (1924) 24 SR (NSW) 463 Kioa v West (1985) 159 CLR 550 CASES CITED: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 Townsend v Evans Shire Council (2000) 109 LGERA 336 Twist v Randwick Municipal Council (1976) 136 CLR 106

APPLICANT: C D Jackson (barrister) SOLICITORS: Schreuder Partners

FIRST RESPONDENT: H P Irish (barrister) LEGAL REPRESENTATIVES: SOLICITORS: Department of Planning

SECOND RESPONDENT: A M Pickles (barrister) SOLICITORS: Kells The Lawyers

JUDGMENT:

• 8 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

HAMOD V MINISTER FOR URBAN AFFAIRS AND PLANNING & ANOR [2009] NSWLEC 24

EX TEMPORE JUDGMENT 1 HIS HONOUR: Mr Anthony Hamod is the owner of a property known as Lot 51 in Deposited Plan 7664, being number 71 Lower Coast Road Stanwell Park within the City of Wollongong. On 6 November 2000, Mr Hamod lodged a development application with Wollongong City Council to build a house on the land. The land was zoned 7(a) Special Environmental Protection under the Wollongong Local Environmental Plan 1990 ("the LEP") in which zone the proposed development is prohibited. There was a discretion, however, under clause 17 of the LEP to allow the development if it was within 50 metres of another zone in which the development was permissible. 2 On 18 June 2001, the council resolved as follows: Council delegate authority to the general manager to approve the following development applications - D1453/00 for a dwelling house at number 73 Lower Coast Road Stanwell Park and D1492/00 for a dwelling house at number 71 Lower Coast Road Stanwell Park, subject to appropriate remedial works being undertaken to reduce the geotechnical stability from high to medium and all drainage issues be resolved to the satisfaction of council's drainage engineers. 3 On 20 June 2001, and before the general manager acted pursuant to the terms of the resolution, three councillors gave notice of a motion for rescission of the resolution. I note that the notice of rescission motion was made in accordance with s 372 of the Local Government Act 1993. On 28 June 2001, however, the Minister for Planning exercised his power under s 88A of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") to direct the council to refer the development application to him for determination. 4 On 23 July 2001, the council resolved to rescind its resolution of 18 June 2001, to which I have referred. On 30 July 2001, the Minister for Planning formally refused the development application and that formal refusal was, I understand, received by Mr Hamod on 8 August 2001. The stated reasons for refusing the development consent as set out in the notice of determination signed by the Minister are as follows:

· dwelling houses are not permitted in the 7(a) zone under Wollongong Local Environmental Plan 1990; · the applicants have made a submission under clause 38A of Wollongong Local Environmental Plan 1990 however Wollongong City Council has demonstrated a clear intention to exclude environmental protection zones from clause 38A via the council resolution to prepare an amendment to the LEP; · the proposed developments will have unresolvable visual impacts and therefore do not achieve the objectives of the 7(a) zone; · development of the 7(a) land is not consistent with statements in the 1999 Commission of Inquiry into the long-term planning and management of the Illawarra Escarpment; · the location, topography and potential for geotechnical instability in the area is a significant constraint to the development of these properties; and · the developments are not in the public interest.

5 Mr Hamod did not exercise his right of appeal from the Minister's determination afforded by s 97 of the EP&A Act. 6 On 14 August 2008, Mr Hamod commenced these proceedings in which he seeks the following relief: (1) An order that the first respondent's (the Minister's) decision to issue a direction under s 88A of the Environmental Planning and Assessment Act 1979 to determine the development application himself, in relation to development application number 1492/00 made on 28 June 2001 be quashed. (2) A declaration that the first respondent had no power to issue such a direction, as the development application had already been determined by the second respondent (the council).

(3) A declaration that the purported rescission of the approval by the second respondent dated 23 July 2001 was in want of jurisdiction, invalid and of no effect.

(4) In the alternative to the order and declaration sought in orders 1 to 3, an order quashing the decision of the first respondent acting under s 80 to refuse the development application number 1492/00.

(5) In further alternative to the above orders, an order extending the time to appeal the first respondent's decision to the date of filing this application pursuant to s 97 of the Environmental Planning and Assessment Act.

7 Mr Hamod relies upon a number of contentions in support of his claim for relief. The first contention is that the council on 18 June 2001 determined the application favourably to Mr Hamod and accordingly the council was "functus, and any further action was beyond power". 8 Mr Hamod submits that the general manager had a duty to approve the application referred to him on 18 June 2001 forthwith, consistently with the terms of the delegation. In the alternative, Mr Hamod submits that the development application was determined favourably to the applicant by the council on 18 June 2001 under the terms of the resolution. It is also submitted that the council had no power to revoke its delegation of authority to the general manager. In my opinion, the first contention advanced by Mr Hamod must fail. 9 The resolution of the council on 18 June 2001 was ineffective and that appears as a consequence of the Court of Appeal's decision in Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450. In that case the council had passed a resolution in the following terms: (1) The general manager be delegated authority to approve development application 1565/2004 as per option 3 of the report.

(2) The consent not be issued until councillors are informed of the conditions.

(3) A 2 metre setback be placed on the Crown Street frontage in line with council's policy.

10 According to Tobias JA, with whom Beazley and Basten JJA concurred, the giving of a direction requiring a discretionary power or function of council to be exercised in only one way is not a valid delegation of the council's function to determine an application within the meaning of s 80(1) of the EP&A Act. The council's resolution was thus ineffective. Similarly, the council's resolution in the present case is also ineffective. 11 As to the second limb of Mr Hamod's submission, namely that the resolution itself amounted to a favourable determination of the development application in favour of the applicant, again I am not persuaded. It can be seen that the terms of the resolution are clearly not final. The delegation to the general manager to approve the development application was subject to remedial works being undertaken to reduce the geotechnical stability from high to medium, and further, that all drainage issues be resolved to the satisfaction of council's drainage engineers. 12 Where a consent leaves for later decision an important aspect of the development, and the decision on that aspect could alter the development in a fundamental respect, then there has, in truth, been no consent to the application at all, see Mison v Randwick Municipal Council (1991) 23 NSWLR 734. In particular I refer to the judgment of Priestley JA at 737: Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. 13 I can see no difference in principle between what the Court of Appeal decided in Mison and the terms of the resolution in the present case. I therefore reject the proposition advanced on behalf of Mr Hamod that the council's resolution of 18 June 2001 amounts to a consent. 14 It is next submitted that the council had no power to revoke its delegation of authority to the general manager. It is clear however from the terms of s 372 of the Local Government Act that the council did have that power. The notice of rescission was given to the general manager, signed by three councillors, on 19 June 2001. The motion fulfilled the requirements of s 372(4) in that it was signed by councillors and was received within three months of the original motion, and there was nothing in the facts of this case which suggests that the rescission motion was not properly dealt with and carried. 15 The second contention of Mr Hamod is that the Minister's decision under s 88A was invalid. This contention is based upon the assertion that the Minister had no power to make his s 88A decision when development consent had already been given by the council. However, as development consent had not been given, and no formal notice of determination had been issued, the power of the Minister to direct the council to refer the application to him for determination was still open. There is no effective development consent until a formal notice of determination is given to the applicant. It is necessary that the communication of the consent have some formal character as being authenticated on behalf of the council: see Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 at 744; Ex parte Renouf (1924) 24 SR (NSW) 463 and Townsend v Evans Shire Council (2000) 109 LGERA 336. Since no formal notice of determination had been sent to Mr Hamod then it was also open to the council at any time before doing so to rescind or alter the resolution. 16 The third contention of Mr Hamod is that the Minister's decision under s 88A was invalid because it was made in want of procedural fairness. It is submitted that, consistently with the principles explained by the High Court in Kioa v West (1985) 159 CLR 550, and in keeping with the ordinary rules of procedural fairness, Mr Hamod had a right to be heard before the Minister decided to exercise his power under s 88A of the Act because he was a person who would be personally and directly affected by the Minister's decision. In my opinion this submission also fails. The direction under s 88A by the Minister did no more than alter the identity of the consent authority for the development application. 17 In these circumstances, the right of an appeal granted by s 97 of the EP&A Act satisfies the requirements of natural justice. That is to say, s 97 affords the applicant for development consent an opportunity to present his case in a full merits hearing from any decision of the decision maker, whether that be the council or the Minister. In my view, the Minister was under no duty to give Mr Hamod an opportunity to present a case before proceeding to make the direction under s 88A as he did. 18 In other words, the legislature has provided a statutory basis for the manner in which the rules of procedural fairness and natural justice are to be observed. As I have noted, Mr Hamod did not exercise his right under s 97 of the Act to do so. It seems to me that the circumstances are really no different in principle from those decided by the High Court in Twist v Randwick Municipal Council (1976) 136 CLR 106. 19 The fourth contention of Mr Hamod is a contention that a merit appeal under s 97 of the EP&A Act is still open. It is said that either no valid decision has been made, or if a valid determination has been made then the court can extend the time within which to allow an appeal under s 97 to be made. The provisions of the Act relating to appeals are quite specific. Under s 97 of the Act an appeal may be brought within 12 months after the date upon which an applicant received notice of the determination of the development application or within 12 months after the date upon which the application is taken to have been determined under s 82(1). The latter period is, in the present case, a period of 40 days. 20 Where the legislature has fixed a time within which an appeal may be brought then there is no jurisdiction in the court to extend that time unless the Act in which the time is fixed gives the court the discretion to do so. Mr Hamod submits that this Court has a general discretion under s 20 of the Land and Environment Court Act 1979 to extend the time. I reject the submission. Section 20 is a general provision. It does not enable the Court to overrule a specific provision or requirement of another Act. 21 Mr Hamod's final contention is that the Minister's decision fails to take into account relevant considerations. The submission is developed by having recourse to the reasons of the Minister's decision, which show whether or not a relevant matter was taken into account. Of course the ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. 22 In the present case it is alleged that the Minister failed to consider: (i) whether or not any geotechnical instability in the area was such that the specific sites could not be built on; (ii) whether any concerns regarding geotechnical instability had, or could be adequately addressed; (iii) whether it was correct that the dwelling would not comprise an adverse visual impact; (iii) the fact that the dwelling would not have a detrimental impact in terms of vegetation clearance, drainage pollution or bushfire risk; and (v) the council's heritage officer's assessment that the development "will not adversely affect the heritage significance of the escarpment". 23 The onus is, of course, at all times upon the applicant to show that a relevant matter that the decision maker was bound to take into consideration was not taken into consideration. The matters to which the applicant refers in this case as not being taken into account are all canvassed in reports that were before the Minister when he made his determination. The evidence does not satisfy me that those matters were not considered. On the contrary, they form part of the reasons for refusal. 24 It follows, from the reasons above, that the application must be dismissed with costs. The exhibits will be returned after publication of the transcript of this judgment.

I hereby certify that the preceding 24 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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