Hoxton Park Residents Action Group Inc v Liverpool City Council

Hoxton Park Residents Action Group Inc v Liverpool City Council - [2010] NSWLEC 242 - NSWLEC 2010 case summary — Zoe

[15]

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".

[29]

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].

[50]

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:

[53]

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.

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