Hooper v Port Stephens Council & Hallett

CASES CITED: Charlton v Moore (No.2) [2009] NSWLEC 47 Hooper v Port Stephens Council [2009] NSWLEC 234

DATES OF HEARING: 12 March 2010, 19 March 2010

FIRST RESPONDENT Mr M Fraser, Barrister LEGAL REPRESENTATIVES: SOLICITORS Harris Wheeler

SECOND RESPONDENT Mr P Larkin and Mr P Maddigan, Barristers SOLICITORS Halletts Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

No.40010 of 2010 HOOPER v PORT STEPHENS COUNCIL & HALLETT

EXTEMPORE JUDGMENT Introduction 1 His Honour: This court has to deal today with a number of issues which have arisen in these class 4 proceedings which are currently fixed for hearing on 27-28 May 2010. 2 The applicant Mr Hooper is self-represented, highly experienced in building and development matters, and profoundly hard of hearing. He has a range of complaints about Council's operations, and its alleged inconsistency. 3 He lives at 106 Government Road, Nelson Bay, and objects to the proposed development by the second respondent Mr Hallett involving a three-storey dwelling at 25 Gloucester Street, Nelson Bay. His objection having not prevailed, consent was granted by Council on 15 December 2009 (16/2009/667/1). Mr Hooper's proceedings 4 Mr Hooper was so advised on 18 December 2009, and immediately commenced proceedings for an injunction to prevent the issue of a construction certificate. Those proceedings were heard ex parte by Pepper J, and the injunction was not granted - matter No. 40991 of 2009, see Her Honour's judgment 18 December 2009 [2009] NSWLEC 234. Mr Hooper says he commenced those proceedings partly to put Council and Mr Hallett clearly on notice that he was going to challenge the consent. 5 Mr Hooper then commenced this class 4 challenge to the consent by summons issued on 12 January 2010, seeking the following relief: " 1. SET ASIDE [ABOLISH] the DEVELOPMENT APPROVAL of PORT STEPHENS COUNCIL [PSC] who granted consent to erect a THREE STOREY DWELLING at 25 Gloucester Street Nelson Bay NSW. On 15 December 2009. GROUNDS TO SET ASIDE: The Development applicant [Hallett] and/or the architects [briefed by Hallett] along with PSC staff and councillors failed their Duty of Care [owed to ratepayers of PSC areas] in failing to strickly (sic) apply the ' MANDATORY LANGUAGE ' contained in the three current PSC 'PLANNING INSTRUMENTS '. PSC's 149 certificate; LEP/DCP ." 6 It needs to be noted that this summons, in its terms, is framed at least partly like a negligence claim, over which this court would not have jurisdiction, but it does claim a failure by Council to observe some relevant planning instruments or documents in granting the consent, albeit that a s 149 certificate is not such an instrument/document. 7 Also filed on 12 January 2010 was an affidavit by Mr Hooper providing a number of documents, and giving the history of his objection to the development, his discussions with Council, and the approval decision. 8 In the normal Friday list on 12 February Mr Hooper represented himself, but the court's audio equipment for the hearing-impaired did not work properly, and he missed most of the proceedings. 9 Biscoe J made various orders and directions, and ruled against an "oral motion" made on that occasion by Mr Hooper for a statement of reasons to be provided to him by the Council pursuant to the provisions of par 14(b) of the usual class 4 Practice Direction, and Rule 4.3(b) of the Land and Environment Court Rules 2007. 10 They are discretionary beneficial provisions designed to work in the public interest by assisting those who seek to expose legal error for them to have reasons they can examine. They are discussed in Charlton v Moore (No.2) [2009] NSWLEC 47, and they provide as follows:

Practice Direction "14. Where the proceedings involve a challenge to the decision of a public body or public official: … (b) the Court may, at a directions hearing, direct the respondent public body or public official to furnish to the other party or parties within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision;" Court Rules " 4.3 Proceedings for the review of public authority's decision In any proceedings in which a public authority's decision is challenged or called into question, the Court may make one or more of the following orders: (a) an order directing the public authority to make available to any other party any document that records matters relevant to the decision, (b) an order directing the public authority to furnish to any other party a written statement setting out the public authority's reasons for the decision, being a statement that includes: (i) the public authority's findings on any material questions of fact, and (ii) the evidence on which any such findings were based, and (iii) the public authority's understanding of the applicable law, and (iv) the reasoning process that led to the decision". 11 The discretion should not be lightly exercised as it can impose a serious burden on public and collegiate bodies. 12 Mr Hooper and Council agree that if I make the order for a statement of reasons the hearing dates will have to be vacated. Understandably, Mr Hallett is vehemently opposed to that course. 13 Mr Hooper filed Points of Claim on 23 February 2010 in the following terms: "(1) The development application [DA] signed by T P Hallett on 8/7/2009 and lodged on 15/9/09 application number 16-2009-667-1 is flawed . (2) The statement of environmental effects [SEE] written by Janet Henriksen signed 9-9-9 and addendum 8.10.09 - addendum 28.10.09 - addendum 06.11.09 are flawed . (3) The assessment [attachment 2] being pages 22 to 26 inclusive of Port Stephens Council committee paper dated 15 december 2009 is flawed . (4) The recommendation being pages 18 to 21 inclusive of PSC council committee paper dated 15 december 2009 is flawed ." 14 On learning the outcome of his oral motion, Mr Hooper filed a Notice of Intention to Appeal to the Supreme Court, and complained in writing to the Registry regarding the failure to transmit the proceedings to him. The matter was then relisted on 12 March for further consideration or reconsideration by Biscoe J. With the consent of the respondents, His Honour vacated his orders of 12 February, and referred the matter to me as the Duty Judge, to rehear Mr Hooper's motion, and reconsider what directions should be made. 15 Also before the court now is a Notice of Motion by the second respondent Hallett to strike out the Points of Claim dated 23 February 2010, and/or the Class 4 application dated 12 January 2010, on the grounds that they do not disclose the legal basis of his case, nor perhaps any cause of action known to the law. Mr Hooper's arguments 16 Mr Hooper told Biscoe J that the basis of his case was that the Council purported to grant approval to prohibited development in that the development the subject of the DA was in breach of the LEP and/or the DCP. Mr Hallett contends that on the correct construction of the LEP the development is not prohibited, and that a DCP cannot prohibit it. 17 The following background facts can be gleaned from Pepper J's judgment of 18 December 2009. 18 Mr Hooper is partially affected by the development insofar as he will lose some of his ocean view, but he said that he was bringing the application for injunctive relief primarily on behalf of his neighbour who, Mr Hooper says, will lose most of his ocean view, and on behalf of the community in order to preserve the existing character of the residential location and, in particular, the amenity of the street, and to protect the environment generally from the development. 19 Her Honour noted that Mr Hooper claimed breaches of clauses 16.1 and 16.2(b) of the LEP, and of cl B6 C46 of the relevant DCP. Her Honour dealt with those arguments (at [12]-[17] of her judgment), and concluded (see [10]) that: "Mr Hooper has not, in my view, established that there is a serious question to be tried in relation to any alleged statutory breaches in the grant by the council of the development consent the subject of the application . . 20 In respect of Mr Hooper's complaint at [18]) that the "development consent granted, the land bought and the application lodged is inconsistent with the planning certificate" under s 149, Her Honour said (at [19]): "The planning certificate, however, merely provides information on how a property may be used and identifies the limits on its development. The certificate contains information the council is aware of through its records and environmental plans. The details contained in the certificate are limited to that required by s 149 of the Environmental Planning and Assessment Act 1979. The certificate does not itself impose any duties or obligations on the council. A development application that has been approved which is not strictly in conformity with the matters contained in the certificate will not render the development invalid. In my view, therefore, this third ground of challenge also does not raise a serious question to be tried. 21 Again, Her Honour concluded (at [20]): "I do not find that a serious question to be tried has been established by Mr Hooper ." 22 Her Honour then went on to deal with the balance of convenience, and found that Mr Hooper would not suffer irreparable injury if the injunction were not granted. See [22]-[29]. 23 Her Honour then went on to say (at [30]-[31]): "… with respect to the public interest , I consider that there is a public interest in Mr Hooper bringing this application. His concern for the environment and for the amenity of his residential area is genuine and legitimate. However, the concept of public interest is multi-faceted. Whilst there is a public interest in the proper enforcement of public welfare statutes such as planning and environmental laws, there is also a public interest in the reliable and predictable administration of these laws from the perspective of the body tasked to discharge its regulatory functions in accordance with them. Furthermore, there is a public interest in those who have been granted development consents, such as Mr Hallett, being able to take the benefit of them. 31 On the whole, while I find that there is a public interest in protecting the environment, I nevertheless find that the public interest in this application favours Mr Hallett, as the recipient of the consent, and the council in the orderly administration of its processes." (emphasis added) 24 On or about 2 March 2010, Mr Hooper faxed to the court a Notice to Produce addressed to the first respondent Council requiring production, in respect of the relevant consent, of the following: "(a) all interdepartmental memos [internal and external], (b) all general memos [internal and external], (c) all notes of telephone conversations [incoming and outgoing], (d) al (sic) emails [incoming and outgoing], (e) all reports and sign off on sheets that were relied on for granting development consent, (f) a certificate, by the approprate (sic) ranked person, that states the documents and things produced to the court are the only documents and things that make up the file I respect to application number 16-2998-667-1 and that no other documents or things exist." 25 He conceded before me that he had received many documents from the Council's legal officer and FOI officer, but he thinks the documents are incomplete. He is also suspicious of the changes in procedure at Council between 1998 and the present (Exhibit H2 cf Exhibit H3). 26 The court file contains pp18-30 of the Council Committee Report of 15 December 2009, and Council says that it has fulfilled its obligations under par 14(a) of the Practice Direction, which says: 14. Where the proceedings involve a challenge to the decision of a public body or public official: (a) the respondent public body or public official is to make available to the other party or parties the documents it says record matters relevant to the decision , within 14 days of that respondent's appearance; (emphasis added). 27 Mr Hooper has had access to Council's file on the subject development consent, and also to the file concerning Nos.23 and 23A Gloucester Street (16/1998/1917/1). Council thinks that the latter file is irrelevant (concerning an old DC, granted under different controls), and will object to any tender of it at the hearing. 28 Mr Hooper told Biscoe J that he could make no sense of the Council papers and repeated before him the arguments he had made before Pepper J. 29 When the matter came on for rehearing before me last Friday, Mr Hooper explained again his many difficulties with the Council, but denied that he was on a "fishing expedition" (see T12.2.10, p8, LL6-18). He said he had kept in close touch with the development application, was refused access to the altered plans, had lobbied councillors who were not given a proper opportunity to canvass matters in the public interest at the Council meeting which made the decision. He claimed there were errors in the assessment report. He is challenging the consent on a public interest basis, as the relevant neighbour is said to have been promised that the house would be only 8m tall, the instruments impose a limit of 9m, and the proposed house is in fact 9.5m tall. 30 He says he uses the word "flawed" in all his Points of Claim because he does not have the necessary information to frame his challenges properly (cf Charlton v Moore). The person who made the final recommendation to the Council (the third of three officers to consider the matter) was not fully across the proposal, and Mr Hooper is also deeply suspicious that the necessary SEPP 1 objection was lodged only after consent had been granted. 31 He protests that he has tried to get all the relevant documents from the Council, that some of the documents produced are not relevant for various reasons, and that others "trickle out" when he applies the pressure, for example by serving detailed Notices to Produce. He wants all the Council's decision-making to be made transparent on this matter. He relied on many documents in support of his motion (Exhibits H1, H2, & H3), and elaborated on his concerns and arguments when the matter resumed this morning. They concern attention to all aspects of s 79C, and the alleged inadequacy of the Statement of Environmental Effects. Respondents' submissions 32 Mr Fraser, counsel for the Council, has assured the court that the Council file has been made available in its entirety, some additional emails having been later provided. Reasons are available to Mr Hooper from the Council's documents. He addressed the Council and it resolved to endorse the officers' report. If his complaints are just that the development is prohibited, that is provable from the Council file and the necessary planning instruments. Mr Fraser says the Council has complied with rule 4.3, and that there is no case made for the discretionary additional material in par (b) of the Practice Direction and the Rule. 33 Clear Points of Claim are necessary, and any allegation in the nature of fraud, such as the repeated complaints regarding the SEPP 1 dispensation, would need to be specifically pleaded. 34 Mr Larkin, and today Mr Maddigan, both counsel for Mr Hallett, submitted that if the challenge is as Mr Hooper has orally articulated it, namely that the consent offends the planning instruments and their prohibitions and restrictions, the Council's actual reasoning process is not strictly relevant to these proceedings. As Mr Hooper seems to be clearly able to identify the legal errors he alleges, he should be able to put on proper Points of Claim. The "flaws" he alleges can be expected to be apparent "on the face of the record". Vague allegations of documents being manufactured and books being "fiddled" take the matter well beyond the question of Council approving a prohibited development. Consideration 35 As Biscoe J said (in Charlton v Moore (No.2) at [19]) the court should not be reluctant to exercise the discretion "merely because the public authority is a collegiate body such as a local Council". The response can be ([22]) to the best of the "knowledge, information and belief" of the Council, or of the person providing the statement of reasons. 36 Mr Hooper has provided scant evidence to support his suspicions, and this court accepts Mr Fraser's assurance that the Council has made a full disclosure of its file. Such an intelligent and experienced participant in the development industry, who has now given orally before three judges of this court, the essence of his claim, should be able to formulate appropriate Points of Claim so that the respondents can prepare for the hearing. 37 Biscoe J concluded on 12 February 2010 that he was "not persuaded that it is appropriate at this stage on the information at the moment before the court to direct the Council to furnish written reasons for its decision", and I am conscious that an order under par 14(b) and/or rule 4.3 will cause great difficulty for both respondents, and may not resolve Mr Hooper's main concerns. 38 However, I am concerned and satisfied that these proceedings will not be satisfactorily disposed of to the benefit of all parties without creating the environment in which the challenge will be properly pleaded and the case satisfactorily prepared. Such an environment is in the interests of all parties. 39 At this stage I am not persuaded that the summons should be struck out, but clearly it should be amended. On the other hand, the current Points of Claim are clearly unacceptable and should be struck out. 40 With some diffidence I have decided to order the Council to undertake the preparation of a statement of reasons, and to order vacation of the hearing dates. 41 I accept that the impending Easter school holidays will complicate the preparation of the council's Statement of Reasons. Instead of giving Council 28 days to prepare the Statement, I am allowing 35 days. ORDERS 42 The orders of the court are: 1. The hearing dates 27-28 May are vacated. 2. The Points of Claim filed 23 February 2010 are struck out, pursuant to par 1(a) of the second respondent's Notice of Motion of 8 March 2010. 3. The first respondent is ordered to file and serve a written statement of " reasons " as required by Rule 4.3(b) within five weeks of today, namely by 23 April 2010. 4. The applicant is ordered to file and serve an amended summons and amended Points of Claim by 14 May 2010. Such Points of Claim are to particularise in specific detail any allegation made of improper conduct such as falsification of documents on the part of Council and its officers. 5. The respondents are to file Points of Defence by 28 May 2010. 6. The applicant is to file all affidavits and material upon which he intends to rely by 4 June 2010. 7. The respondents are to file all affidavits and material upon which they intend to rely by 11 June 2010. 8. The applicant is to file any affidavits and material in reply by 18 June. 9. The parties are to approach the Registrar forthwith to appoint new hearing dates as soon as possible on or after 21 June 2010. 10. I make the usual directions regarding: (a) Cross examination of witnesses, (b) Objections to affidavits, (c) Submissions, authorities, chronology, list of characters, and list of materials to be relied upon at the hearing, (d) notification of any slippages in the timetable I have set, and (e) concurrent evidence of experts (if any). 11. The parties have liberty to restore on three workings days' notice. 12. As the second respondent has been partly successful on his Notice of Motion, and the applicant successful on his oral motion, I reserve all questions of costs. 13. The exhibits may be returned. 43 I will publish these reasons, and formal orders and directions, later today.

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