Hoxton Park Residents Action Group Inc v Liverpool City Council

KEY ISSUES: JUDICIAL REVIEW :- validity of development consent for a school - environmental impact of proposed construction of bridge over creek running across boundary of subject land - condition of consent provided that occupation certificate not to be issued until connecting road including the bridge constructed - permits for bridge and road works required under other legislation - whether council's failure to consider likely environmental impacts of construction of bridge on endangered ecological community was contrary to s 79C(1)(b) Environmental Planning and Assessment Act 1979 - whether council's failure to consider cl 9(2) State Environmental Planning Policy No 19 - Bushland in Urban Areas relating to bushland to be cleared for bridge contravened s 79C(1)(a)(i) - whether proceedings time barred by s 101 - whether s 101 notice defective in form - whether proceedings not time barred because failure to take into account relevant mandatory considerations constituted jurisdictional error in the nature of a constructive failure to exercise jurisdiction - notice of constitutional issue given to Attorneys-General - adjournment of proceedings to hear respondent's application for order of conditional validity

Environmental Planning and Assessment Act 1979, ss 79C, 101, 111, 112, Pts 4 and 5 Environmental Planning and Assessment Regulation 2000, cl 124(1) Environment Protection and Biodiversity Conservation Act 1999 (Cth) Judiciary Act 1903 (Cth), s 78B LEGISLATION CITED: Land and Environment Court Act 1979, s 25B Local Government Act 1993, s 68 Roads Act 1993, s 138 State Environmental Planning Policy (Infrastructure) 2007, cl 94 State Environmental Planning Policy No 19 - Bushland in Urban Areas, cl 9(2)(d)

Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226, 172 LGERA 1 Bell v Minister for Urban Affairs and Planning and Port Waratah Coal Service Ltd (1997) 95 LGERA 86 Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69, 167 LGERA 52 CPT Manager Ltd (Acting as Trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69 Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWLEC 99, 167 LGERA 205 Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400, 171 LGERA 152 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1, 239 CLR 531 CASES CITED: Lesnewski v Mosman Municipal Council [2005] NSWCA 99, 138 LGERA 207 Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, 64 NSWLR 695 Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 90, 139 FCR 24 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707

APPLICANT: Mr J Johnson, barrister SOLICITORS: Penklis Lawyers LEGAL REPRESENTATIVES: SECOND AND THIRD RESPONDENTS: Mr A Galasso SC SOLICITORS: Goldrick Farrell Mullan

JUDGMENT:

• 14 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

HOXTON PARK RESIDENTS ACTION GROUP INC v LIVERPOOL CITY COUNCIL AND ORS

CONTENTS Paragraphs INTRODUCTION 1-13

JUDGMENT INTRODUCTION 1 HIS HONOUR: This is a challenge by the applicant, Hoxton Park Residents Action Group Inc, to the validity of a development consent granted on 30 June 2009 by the first respondent, Liverpool City Council, to the third respondent, Malek Fahd Islamic School Limited, for the erection of a school and a road on land owned by the second respondent, Australian Federation of Islamic Councils Inc, at Hoxton Park (Land). The Council has filed a submitting appearance. It is convenient to refer to the second and third respondents collectively as "the respondents". 2 The challenge relates to the environmental impact of the proposed construction of a bridge over a creek which runs across the south-eastern boundary of the Land. Construction of the bridge will require the clearance of about 998 square metres of bushland largely comprising an endangered ecological community, River-Flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions (EEC).

3 Two disconnected arms of a road called Pacific Palms Circuit terminate at or very close to, respectively, the south-eastern and western boundaries of the Land. The approved development contemplates connecting the two terminal points by a road across the Land (connecting road). The bridge is part of the connecting road. The bridge and EEC bushland are partly over the south-eastern corner of the Land, which is to be dedicated to the Council under a condition of the development consent, and mostly over adjacent Council-owned land on which there is a road reserve.

4 The Statement of Environmental Effects dated September 2008 supporting the development application indicated that access to the school will be via Pacific Palms Circuit; that the connecting road including the bridge were part of the proposed development; and that they would be completed in Stage 4 of the proposed 7 stage development. The Council, however, required the connecting road including the bridge to be completed prior to occupation of Stage 1.

5 The development application was amended to exclude the bridge but not the rest of the connecting road on the basis that: (a) the proponent would construct the bridge on behalf of the Council on Council-owned land (including part of the Land to be dedicated to the Council under a condition of consent); (b) therefore (i) development consent under Part 4 of the Environmental Planning and Assessment Act 1979 ( EPA Act ) was not required for construction of the bridge because cl 94(1) of State Environmental Planning Policy ( Infrastructure) 2007 ( ISEPP ) provides: "Development for the purpose of a road or road infrastructure facilities may be carried out by or on behalf of a public authority without consent on any land"; (ii) construction of the bridge required approvals by the Council under s 68 of the Local Government Act 1993 and by the Council as the roads authority under s 138 of the Roads Act 1993; and (iii) construction of the bridge required separate assessment by the Council under Part 5 (ss 111 and 112) of the EPA Act , including assessment of its environmental impacts. 6 Prior to development consent, the Council commenced the process of assessment of bridge construction under Part 5 of the EPA Act, including consideration of supporting documentation lodged with it by or on behalf of the proponent. The Part 5 process has not yet concluded. 7 A report to the Council's Independent Hearing and Assessment Panel of 14 May 2009 stated (referring to the bridge and creek as the "culvert" and "watercourse"): "The proposal involves the construction of Pacific Palms Circuit through the site, including a culvert crossing over the watercourse…The part of Pacific Palms Circuit that requires the culvert crossing will be subject to separate consideration under Part 5 of the Environmental Planning and Assessment Act 1979…if the application is approved, all road works, including the culvert crossing must be completed prior to occupation of the first stage of the development".

8 That report considered ISEPP, stating: "1.1 Clause 94 - Road Infrastructure facilities - development permitted without consent

Clause 94 of the infrastructure SEPP allows for the construction of a road infrastructure facility, including a bridge, by, or on behalf of, a public authority without consent on any land. The proposed development involves the construction of Pacific Palms Circuit through the site, which requires a culvert crossing over a watercourse which traverses the south-east corner of the site. The culvert crossing will be constructed by the developer on behalf of Council. In this regard, there is no requirement for development consent to be obtained for the culvert crossing. The culvert crossing, however, will be separately considered under Part 5 of the Environmental Planning and Assessment Act 1979."

9 The Notice of Determination of the development application relevantly described the proposed development as "Erection of an educational establishment…to be constructed over seven (7) stages incorporating…construction of a new road…". That road is the connecting road for the Pacific Palms Circuit but excluding the bridge. An approved plan showing the connecting road and part of the bridge noted: "Bridgeworks to be submitted and assessed as a separate DA". Although this reference to a separate development application was technically inaccurate (since a development application is a Part 4 EPA Act concept), it is part of the evidence indicating that the bridge was excluded from the subject development application. 10 Condition 174 of the development consent provides that an occupation certificate shall not be issued until (among other things) the connecting road including the bridge are constructed, and arguably requires the proponent to carry out that construction: "174. An Occupation Certificate, interim or otherwise, shall not be issued until Road Construction (Full Width) - Full formation and full width road construction of Pacific Palms Circuit, Dorrigo Avenue and Brunswick Head Crescent within the subject land to include the required culvert crossing over the watercourse, barrier kerb and gutter, footpath formation for the full verge, drainage, pavement construction, sealing and service adjustments in accordance with Council's current design and construction specification for subdivision (as amended) and to the satisfaction of the Roads Authority."

11 Relevantly to the bridge, condition 165 of the development consent requires that separate applications for permits to carry out works within the Council's drainage and road reserves must be made to, and permits issued by, Council pursuant to s 68 of the Local Government Act 1993 and s 138 of the Roads Act 1993. Condition 195 provides that a linen plan is to be submitted to Council to show the dedication of a Pacific Palms Circuit and that evidence of the dedication must be provided to Council prior to occupation of the development.

12 The applicant's case, as pressed at the hearing, is that: (a) contrary to s 79C(1)(b) of the EPA Act the Council failed to consider the likely environmental impacts of the construction of the bridge on the natural environment, in particular on the EEC to be cleared; and (b) contrary to s 79C(1)(a)(i), the Council failed to consider the requirements of cl 9(2)(d) State Environmental Planning Policy No 19 - Bushland in Urban Areas ( SEPP 19 ) relating to the bushland to be cleared for the bridge. 13 Section 79C(1)(a)(i) and (b) of the EPA Act provide: "(1) Matters for consideration - general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments…"

SECTION 79C(1)(b) EPA ACT: EEC 14 The first ground of challenge is that, contrary to s 79C(1)(b) of the EPA Act, the Council failed, when determining the development application, to consider the likely impact of the construction of the bridge on the EEC. 15 Although an act, matter or thing for which development consent under Part 4 of the EPA Act is required or has been obtained is not subject to Part 5 (see s 110(1)(g)), that is not this case. If on the proper interpretation and application of s 79C(1)(b) to the unusual circumstances of this case, the effect of construction of the bridge had to be considered when determining the development application for the school and the road, it is irrelevant that there may be an overlap in one or more of the relevant considerations when carrying out the separate assessment required under Part 5: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226, 172 LGERA 1 at [78]; CPT Manager Ltd (Acting as Trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69 at [109].

16 The respondents submit that, when determining the development application, the Council in fact did consider the likely impact of the bridge construction on the EEC because a Council Officer's May 2009 report to the Independent Hearing and Assessment Panel said that the site contains an endangered ecological community and that it was not impacted by the development. However, the Council said in an answer to an interrogatory that in determining the development application it did not consider the likely impacts on the River-Flat Eucalypt Forest. On that basis, I am prepared to conclude that in fact the Council did not consider the likely impacts on that EEC. This conclusion is reinforced by the fact that the bridge was excluded from the subject development application and consent and was the subject of separate Part 5 assessment which has not yet been completed.

17 The respondents then submit that the likely impact of the construction of the bridge on the environment did not have to be considered under s 79C(1)(b) because (a) the development consent did not authorise construction of the bridge, which required other statutory approvals; (b) the bridge was not a consequence of the consent as it was part of the integrated road network identified in the Liverpool Development Control Plan 2008 (DCP), which required all applications to develop land to be consistent with the street network shown on Figure 2 therein; (c) the bridgeworks were subject to the Council's contribution plan under s 94 of the EPA Act; and (d) development consent for the bridge was not required under cl 94(2) of ISEPP and consequently could not be granted: Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69, 167 LGERA 52 at [14].

18 Points (a) and (d) may be accepted. The weight of point (a) is diminished by the applicant's analogy of a development application for a hotel where the decision-maker should consider the potential impact of inebriated patrons notwithstanding that a liquor licence still has to be obtained. As for point (b), it may be accepted that the bridge was contemplated under the DCP but I do not think it follows that there was no relevant causal connection between the development consent and the bridge. It is not clear from the evidence that point (c) is correct; but, assuming that it is, I do not think the points raised by the respondents establish that impacts of construction of the bridge on the environment did not have to be considered under s 79C(1)(b).

19 The question under s 79C(1)(b) is whether the likely impacts on the environment of the development the subject of the development application include the likely impacts of the construction of the bridge on the EEC. In my opinion, they do.

20 The "development the subject of the development application" was the school and the connecting road for the Pacific Palms Circuit across the Land but excluding the bridge. The bridge is the missing link in the connecting road. The Pacific Palms Circuit is to provide access to the school. Under Condition 174 of the development consent the school cannot be occupied until the connecting road including the bridge are completed. Naturally, therefore, the proponent's intention was and is to build the bridge. The bridge is consistent with the DCP. It can be seen that the bridge is inextricably bound up with the development and in my view it was likely, viewed at the time of the development consent, that the bridge would be constructed. It may be accepted that it was not certain because other statutory approvals and a Part 5 EPA Act assessment were necessary.

21 The "environment" is defined widely as including "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings": s 4 EPA Act. It is common ground that construction of the bridge will have an environmental impact on the EEC.

22 The "environmental impacts" of a proposed development within the meaning of s 79C(1)(b) include direct and indirect impacts on the environment outside the development site. In Bell v Minister for Urban Affairs and Planning and Port Waratah Coal Service Ltd (1997) 95 LGERA 86 this Court considered the obligation to consider the impacts of the expansion of the Newcastle Coal Loader under a predecessor to s 79C(1)(b). By increasing the capacity of the coal loader, the number of trains servicing the loader would increase significantly. The environmental impact statement failed to deal with the impacts of the increased rail traffic. In finding that it should have dealt with those impacts, Bignold J held that consideration of a development application will almost invariably involve consideration of matters external to the development site and that in this case it required consideration of noise and vibration problems likely to be caused to residents along the railway line by coal trains passing along the line to and from the coal loader (at 95-96). 23 In Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463, the Minister, having determined that the proposed construction of the Nathan Dam in central Queensland was a "controlled action", proceeded to assess its impacts and likely impacts as required under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Minister did not take into account the potential impacts of downstream pollution caused by farmers using pesticides, principally endosulfin, on crops grown on land irrigated with water released from the dam. The pesticide is toxic to a range of fauna and is especially toxic to fish. It was said that it might be exported into the Great Barrier Reef World Heritage area which was about 500 kilometres away. The Minister did not consider that matter on the reasoning that the potential impact of irrigation of land by persons other than the proponents, using water from the dam, were not impacts of the action, which was the construction and operation of the dam. Setting aside the Minister's decision, Kiefel J held that the Minister was obliged to have regard not just to the immediate impact of the dam, but all the consequences which could be predicted to flow from the dam's operation: at [23]. The question whether there is likely to be significant impacts upon the environment requires a wide consideration of the consequences which will follow if the proposed activity proceeds: at [31]. The widest possible consideration is to be given, limited only by consideration of the likelihood of it happening, which excludes possible impacts which lie in the realm of speculation: at [39]. That the enquiry is a wide one is consistent with the high public policy apparent in the objects of the statute: at [40].

24 Her Honour's decision was upheld on appeal: Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 90, 139 FCR 24. The Full Court held that "impact" means the direct or indirect influence or effect of the action including (a) effects which are sufficiently close to the action to allow it to be said, without straining the language, that they are, or would be, the consequences of the action; and (b) consequences which can reasonably be imputed as being within the contemplation of the proponent, whether those consequences are within the control of the proponent or not: at [53], [57]. 25 As with the Commonwealth legislation, the objects of the EPA Act mandate a broad approach to the interpretation of the legislation. In my opinion, it would be artificial and inconsistent with the objects of the EPA Act to make a decision under Part 4 which locked in bridge works on adjacent Council owned land and in part of the land to be dedicated to the Council, yet to defer solely for future consideration the likely and inextricably linked impacts of the bridgework to be assessed under Part 5.

26 For these reasons, I uphold the first ground of challenge.

SEPP 19 27 The applicant contends that, contrary to s 79C(1)(a)(i) of the EPA Act, the Council failed to consider the requirements of cl 9(2)(d) of SEPP 19 relating to the bushland to be cleared for the bridge: see [2] above.

29 Clause 9 of SEPP 19 provides: " 9 Land adjoining land zoned or reserved for public open space

(1) This clause applies to land which adjoins bushland zoned or reserved for public open space purposes. (2) Where a public authority: (a) proposes to carry out development on land to which this clause applies, or (b) proposes to grant approval or development consent in relation to development on land to which this clause applies,

the public authority shall not carry out that development or grant the approval or development consent unless it has taken into account:

… (d) the effect of the proposed development on bushland zoned or reserved for public open space purposes and, in particular, on the erosion of soils, the siltation of streams and waterways and the spread of weeds and exotic plants within the bushland…"

30 "Bushland" is defined in cl 4(1) of SEPP 19 as follows: " bushland means land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation."

31 Clause 4(2) and (3) of SEPP 19 provide: "(2) A reference in this Policy to bushland zoned or reserved for public open space purposes is a reference to bushland within an area or zone identified by an environmental planning instrument as open space (other than for private recreation). (3) A reference in this Policy to disturbing bushland is a reference to removing vegetation from the bushland or causing a change in the natural ecology of the bushland resulting in the destruction or degradation of that bushland."

32 The Council zoning map indicates the relevant land to which cl 9(2) applies. The Land is primarily zoned residential. The south-eastern corner of the Land (zoned R2) is to be dedicated to the Council under a condition of development consent. The school is to be built on the Land above that south-eastern corner. The creek cuts across the south-eastern corner and is zoned SP2 (Drainage). The SP2 zone is sandwiched between two strips of land zoned RE1 Public Recreation: one runs across the south-eastern corner of the Land, the other is to the south of the Land. The bridge is to be built over the two RE1 strips and the SP2 strip.

33 In terms of cl 9(1) of SEPP 19, the two RE1 strips are "bushland zoned or reserved for public open space", and the SP2 strip is the land that "adjoins" that bushland. Thus, cl 9(1) applies to the SP2 strip.

34 In terms of cl 9(2)(a), the Council proposes to carry out development, namely, construction of the bridge, on the SP2 strip. The proponent is to construct the bridge on the Council's behalf. Therefore, under cl 9(2)(d), the Council must not carry out that development or grant an approval for the construction of the bridge unless it has taken into account the effect of the proposed development on the SP2 strip.

35 However, in terms of cl 9(2), as the Council has not granted and does not propose to grant development consent for construction of the bridge, I do not think that the failure to consider cl 9(2)(d) of SEPP 19 at the time of determining the development application affects the validity of the consent. It is true that in the future the Council, by the proponent acting on its behalf, proposes to carry out that bridge development and to grant other statutory approvals subject to the Part 5 assessment. I think that before doing either it should consider the requirements of cl 9(2)(d) of the SEPP. But that is a different issue which does not affect the validity of the development consent. Accordingly, I do not uphold this ground of challenge. SECTION 101 EPA ACT TIME BAR 36 The applicant having made out one of its grounds of challenge, it is necessary to consider the respondents' defence that the proceedings are time barred by s 101 of the EPA Act, which provides: " 101 Validity of development consents and complying development certificates

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given." 37 Clause 124(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) provides: " 124 What are the public notification procedures for the purposes of section 101 of the Act?

(1) The granting of a development consent is publicly notified for the purposes of section 101 of the Act if: (a) public notice in a local newspaper is given: (i) by the consent authority, or (ii) if the consent authority is not the council, by the consent authority or the council, and (b) the notice describes the land and the development the subject of the development consent, and (c) the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours : (i) at the consent authority's principal office, or (ii) if the consent authority is not the council, at the consent authority's office or the council's principal office."

(emphasis added) 38 Public notice of the granting of the development consent was given in a local newspaper on 8 July 2009. These proceedings were commenced on 16 March 2010, well outside the three month limit imposed by s 101. Prima facie, therefore, the proceedings are time barred.

39 However, in reply to the s 101 defence, the applicant contends that s 101 does not bar the proceedings for two reasons: (a) the s 101 notice was defective because it did not comply with cl 124 of the EPA Regulation . The notice contained a statement that the development consent is available for public inspection, free of charge, at the Council's principal office. It did not state that was "during ordinary office hours" ( the defective notice reply ); (b) failure to take into account relevant considerations mandated by s 79C constitutes a jurisdictional error in the nature of a "constructive failure to exercise jurisdiction": Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 at [41] per Gaudron J; and s 101 does not preclude relief for jurisdictional error: Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1, 239 CLR 531 ( the constitutional reply ). 40 Before the constitutional reply can be heard, it is necessary to give notice to the Attorneys-General under s 78B of the Judiciary Act 1903 (Cth) which relevantly provides: " 78B Notice to Attorneys-General

(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. (2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending: (a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit; (b) may direct a party to give notice in accordance with that subsection; and (c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation." 41 By consent and pursuant to s 78B(2), during the hearing I directed the applicant to give notice in accordance with subsection (1) and continued to hear evidence and argument concerning all other matters as they are severable from the constitutional reply. 42 I turn to the defective notice reply.

43 The s 101 public notice dated 8 July 2009 stated:

" NOTICE OF DEVELOPMENT APPLICATIONS APPROVED BY COUNCIL - JUNE 2009

To view the complete list, visit Council's website. All development consents are available for public exhibition free of charge at Council's Administration Centre." 44 There followed a list of development consents including the subject consent. 45 Clause 124(1)(c) of the EPA Regulation (set out at [37] above) provides that the notice contain a statement that the development consent is available for public inspection, free of charge, during ordinary office hours. The notice did not contain the words "during ordinary office hours". The applicant therefore submits that the notice is defective and consequently s 101 does not bar the proceedings. No point is taken that the notice referred to "public exhibition" rather than "public inspection". 46 There is authority directly against the applicant's submission: Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWLEC 99, 167 LGERA 205 at [54] where Lloyd J, after holding that a development consent was valid and that the s 101 notice was ineffective because of failure to accurately describe the land, stated: "I note that the applicant relies upon a further ground of invalidity, namely that the notice does not state that the development consent is available for public inspection during ordinary office hours. The notice does state, however, that it is available for inspection at the Council's Development and Environment Division, Burrawan Street, Port Macquarie. It is self evident that the office would be open during ordinary office hours. I would not uphold the challenge to the validity of the notice on this ground." 47 On the unsuccessful appeal, it was unnecessary for the Court of Appeal to address the s 101 point: Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400, 171 LGERA 152. 48 The applicant submits that I should not follow Hastings because: (a) it was obiter since Lloyd J did not need to consider whether s 101 had been complied with; (b) privative clauses should be strictly construed; (c) omitting the times during which the consent can be inspected is not a trivial error. Some people may well want to view the documents outside of ordinary office hours. The public notice, which appeared in a published Council newsletter, indicated that Council forums and meetings are held outside ordinary office hours, suggesting implicitly that the Council might be open to allow viewing of documents outside ordinary business hours; (d) time for inspection is one of only a handful of requirements in cl 124(1) of the EPA Regulation . 49 The respondents submit that:

(a) s 101 precludes any challenge to the validity of a consent in only two circumstances, neither of which are alleged to be absent in this case. First, the three Hickman conditions must be satisfied, namely, where it is manifest that the decision is not a bona fide attempt to exercise the power, where it does not relate to the subject matter of the legislation, and where it is not reasonably capable of reference to the power given to the decision-maker: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. Secondly, the consent must not be granted in breach of an essential, indispensable, imperative or inviolable limit or restraint in the EPA Act : Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707 at [81]; Lesnewski v Mosman Municipal Council [2005] NSWCA 99, 138 LGERA 207 at [76]; Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, 64 NSWLR 695 at [112]; (b) the decision in Hastings is precisely in point, is correct and in any case should be followed as a matter of judicial comity; (c) alternatively, even if the s 101 notice was defective, it would still be valid in accordance with the principles in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355; (d) alternatively, if the notice was interpreted as contemplating inspection outside ordinary office hours, then those times could be ascertained as the times that the Council was open for forums and meetings, as stated elsewhere in the Council newsletter in which the notice was incorporated. 50 I am prepared to follow Hastings, which is indistinguishable. The effect of that decision is that in the case of a notice such as the present, it is so obvious that it goes without saying that the development consent may be inspected during ordinary office hours. In other words, although not stated expressly, as a matter of necessary implication the notice stated that the development consent may be inspected during ordinary office hours.

51 The fact that this was stated implicitly rather than expressly arguably may not comply with cl 124 of the EPA Regulation. If so, it must be demonstrated that there is a legislative intention to invalidate the notice because of that non-compliance. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [91] the High Court held (omitting citations): "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."

52 After rejecting the usefulness of the distinction between directory and mandatory requirements, the High Court continued at [93]: "A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid…In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'." 53 Although privative clauses which constitute an absolute bar to proceedings are strictly construed, there is not the same compulsion to strictly construe time bars, at least if the time for bringing proceedings is reasonable, as I think the three month period in s 101 is. In Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707 at [75] Spigelman CJ said (Mason P agreeing at [136]): "Secondly, there is no absolute bar. On the contrary, s101 permits any form of challenge within a specified time period. Although the time period may be regarded as short, that does not detract from the fact that, unlike Plaintiff S157 and the earlier decisions, there is no complete bar to legal challenge on the grounds of jurisdictional error. There is not the same compulsion to strictly construe the section by reason of the application of the principle of statutory construction that Parliament does not intend to deny access to the courts save by clear and unmistakeable words." 54 In circumstances where a notice implicitly states (because it is so obvious that it goes without saying) that a development consent can be inspected during ordinary office hours, it is unlikely I think that the legislature intended that an omission to say so expressly would invalidate the notice. A contrary conclusion would have serious consequences not just for the proponent but for anyone who at any time in the future has an interest in Land since proceedings to challenge the validity of a development consent could be mounted decades into the future without any statutory time bar. The discretion to withhold a remedy in circumstances of long delay in the institution of proceedings and prejudice is another matter.

55 For these reasons, I do not accept the applicant's defective notice reply.

CONCLUSION 56 I have upheld the applicant's substantive challenge to the validity of the development consent, observed that its claim is prima facie time barred under s 101 of the EPA Act, and rejected the applicant's reply that the s 101 notice was defective.

57 The next step is to adjourn the proceedings for the purpose of hearing the respondents' application for an order of conditional validity under s 25B of the Land and Environment Court Act 1979, which provides: " 25B Orders for conditional validity of development consents

(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act. 58 The outcome of that application may determine whether it is necessary to proceed to hear the applicant's constitutional reply to the s 101 time bar defence.

In relation to the second and third respondents' application for an order of conditional validity of the subject development consent under s 25B of the Land and Environment Court Act 1979:

(a) the second and third respondents are to file and serve any submissions and evidence within seven days; (b) the applicant is to file and serve any submissions and evidence within fourteen days; (c) the parties are to proceed forthwith to obtain a hearing date as soon as practicable thereafter and if possible by 17 December 2010; (d) liberty to apply on short notice.

14/12/2010 - incorrect party referred to - Paragraph(s) 49

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