Hutchison 3G Australia Pty Limited ("the applicant") is engaged in the business of telecommunications and has sought to expand its facilities in the Sydney Metropolitan Area. In these Class 4 proceedings the applicant alleges that a condition attaching to a resolution made by Waverly Council ("the council") in respect of the applicant's development application on 26 February 2002 ("the first resolution") is ultra vires council's power. In defending this application the council alleges that the resolution does not constitute a consent but rather is merely a resolution to grant consent upon the satisfaction of a preliminary condition.
Events leading to the first resolution
On 28 August 2001 the applicant lodged development application no. LD 631/01 ("the application") with the council seeking consent pursuant to s 78A of the Environmental Planning and Assessment Act 1979 ("EP&A Act") to install an additional telecommunications facility on an existing tower located at 50 Botany Street, Bondi Junction. The application was supported by a Statement of Environmental Effects prepared by a town planner, namely, Mr Scott David Wilson.
Following lodgement of the application, Mr Wilson held several conversations with council's senior town planner in which Mr Wilson was informed that the application would be referred to a meeting of the council because of concern relating to emissions of electromagnetic radiation ("EMR") from the proposed equipment. As a result the applicant commissioned a report by Radhaz Consulting Pty Limited known as an RF EME Survey Report. Such report concluded that the levels of EMR would be over 2,000 times lower than the relevant Australian Standard for exposure.
Following submission of the report to the council a meeting was arranged between representatives of the applicant and the council at which the Mayor was present. During the meeting the Mayor telephoned a resident objector who was then spoken to by the applicant's community relations manager.
The application was to have been considered by council on 12 February 2002. However, two objectors attended the meeting and questions were raised concerning the applicant's proposal. As a result council resolved to defer consideration of the application until 26 February 2002 to enable objectors and councillors an opportunity to submit specific questions. During the meeting the Mayor announced that the applicant would be required to provide an indemnity in favour of the council to absolve it from any claim relating to EMR. The Mayor stated:-
"should Council decide to approve the application, I will move that the following additional condition of consent be added:
That prior to the consent being issued the applicant sign a waiver of any future liability to Council arising from any future human health impact which may arise as a result of EMR impacts."
On 14 February 2002 Mr Wilson had conversations with senior council staff and with the Mayor. Several council officers advised the Mayor that the indemnity condition may be illegal and ultra vires. On 20 March 2002 Council obtained legal advice to this effect from its solicitor. Nevertheless, the Mayor made it clear that irrespective of the advice of its staff and of its legal advice, council would impose such conditions as it considered appropriate to any consent issued to the applicant.
The first resolution
On 26 February 2002 council considered the application and resolved as follows:
MOTION/ DECISION : That the application be approved in accordance with the conditions contained in this report subject to the following amendments:
That this approval is for the microwave dish components and other ancillary equipment only and that the application for the panel components be deferred for further consideration.
That the following additional condition be included as follows:
"That prior to the release of this consent the applicant must agree in writing to release Council from all legal liabilities from risks incurred including any possible future adverse health impacts of electric magnetic radiation associated with the erection, maintenance and operation of this infrastructure".
Condition 2 is hereafter referred to as "the indemnity condition".
Following council resolution the applicant wrote to council and forwarded a legal advice which concluded that the indemnity condition was invalid. The letter stated inter alia:-
In light of this advice, Hutchison now respectfully applies to Council to re-consider the resolution, and issue a Notice of Determination for the DA.
As a result of this request the resolution was reconsidered at its meeting on 26 March 2002, when council resolved ("the second resolution") as follows:
That the additional condition imposed by Council at its meeting of 26 February 2002, relating to a written indemnity from the applicant, in relation to any health impacts from the proposed installation of telecommunication facilities, be reaffirmed.
By letter from the council to the applicant dated 4 April 2002 the council advised the applicant as follows:-
I refer to your development application for the installation of a mobile telecommunications facilities [sic] at the above property.
As you are aware Council at its meeting on 26th February 2002 resolved the following …
Council's first and second resolutions followed.
The applicant challenges the validity of the indemnity condition.
Applicant's submissions
The applicant submits that the imposition of the indemnity condition is beyond the power of the council. It claims that such condition was not imposed for a planning purpose; did not relate to the development; is unreasonable; is contrary to the provisions of s 81 of the EP&A Act and cl 102 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") and is not fundamental to the application or consent. Further the applicant says that the indemnity condition is neither supplementary nor incidental to the exercise of council's functions.
Council's submissions
The council submits that it has not yet resolved to grant consent, but rather has made a "preliminary resolution". It says that when the precondition referred to in the indemnity condition is satisfied, it will issue a conditional consent. It relies upon the fact that different wording was used by the Mayor on 12 February 2002 compared to text of the first resolution. The former contains the words "… prior to the consent being issued" and the latter states "… prior to the release of this consent".
The council therefore submits that it has not yet dealt with the application and that the applicant is at liberty to institute proceedings on the basis of a deemed refusal of the application pursuant to s 82 of the EP&A Act. The Council submits that the Court would not therefore intervene where another remedy is available. In this respect council relies, by analogy, upon the observations of Dixon CJ in Tooth and Company Limited & Anor v The Council of the City of Parramatta (1955) 97 CLR 492 at 498, namely, that a court would exercise discretion against granting a writ of mandamus where another remedy is available.
Further, the council submits that there are matters relating to the merits of the application which remain to be considered. Accordingly it submits that the intervention by the Court would be premature.
Lastly, the council submits that if the first resolution does constitute a consent, the indemnity condition is not severable because such requirement was "inextricably connected with the remainder" of the consent (see Meriton Apartments Pty Limited v Minister for Urban Affairs and Planning (2000) 107 LGERA 363 at 383). Accordingly, the resolution would be invalid without the indemnity condition.
Applicant's submissions in reply
In response to the submission that council has not yet resolved to grant consent the applicant relies upon to the fact that council admitted par 4 of the applicant's Points of Claim which asserts inter alia that:-
On 26 February 2002, the Respondent considered the DA and resolved to grant development consent subject to conditions as recommended by Council's planning staff…
The applicant emphasises that council has not sought leave to withdraw such admission, despite council's inconsistent submission that consent has not been granted.
Findings
(a) Effect of the resolution
The first question is whether the first resolution constitutes a preliminary resolution or whether it is a consent granted pursuant to s 80 of the EP&A Act, subject to conditions.
Council had been supplied with the applicant's expert report more than three months before the making of the first resolution and had thereafter been supplied with additional information. Individual council members had been supplied with copies of the RF EME Survey Report which was based upon actual readings. The evidence discloses that between November and 26 February 2002 the applicant's town planner, Mr Wilson, had frequently conferred with council officers.
There is no evidence to establish that council had not completed its investigations when it adopted the first resolution. Nor is there any evidence to support the submission that council was merely contemplating a "preliminary resolution". The absence of evidence in respect of such important issues leads inevitably to the consequence that such submissions cannot be sustained.
In construing the resolutions of council, it is appropriate to apply the basic rules of statutory interpretation which requires that wherever possible, a grammatical meaning of words used are to be initially relied upon to establish the general purpose of the enactment (see Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404 per McHugh JA, as he then was, at 421).
Applying the test of McHugh JA the first resolution states that "…the application be approved in accordance with the conditions…". The indemnity condition contains the words "…prior to the release of this consent". Such terminology, used in its grammatical meaning, is clear and unambiguous. The conclusion is inescapable that in making the resolution council was exercising the statutory power provided to it by s 80 of the EP&A Act to grant consent to the application, subject to conditions.
Such conclusion is supported by the events at the meeting of 26 February 2002. The Mayor spoke of the fact that the applicant had provided further information in response to the residents' inquiries. Councillor Plummer then made the following observation:-
From the EME report, the parabolic dishes have negligible EME impact. We should consider a 2 stage approval to approve those parts first and deal with the panel components later.
The adoption by council of the first resolution, which is limited by par 1 of the resolution to " approval " for the "microwave dish components", corresponds precisely to the proposal suggested by Councillor Plummer.
In view of the foregoing, the Court rejects the submission that council's decision on 26 February 2002 was merely a preliminary resolution. Council's resolution of 26 February 2002 constitutes its final determination of the application pursuant to s 80 of the EP&A Act. When council reconsidered its resolution on 26 March 2002 it was exercising the power to review a determination as provided by s 82A of the EP&A Act.
(b) Is the condition valid?
Having reached the conclusion that the indemnity condition constitutes a condition of a consent, the nature of such condition must be examined. To be valid, a condition must:
[2]
Have a planning purpose,
Fairly and reasonably relate to a development, and
[3]
Not be so unreasonable that no reasonable planning authority could have imposed it:
[4]
(see Newbury District Council v Secretary of State for the Environmen t [1981] AC 578: see Parramatta City Council v Peterson (1987) 61 LGRA 286 at 293-294; see also Trehy & Ingold v Gosford City Council (1995) 87 LGERA 262 at 272). It is to be observed that such requirements are cumulative.
27. In its evaluation of a development application a council is required to give consideration to those matters which are specified in s 79C of the EP&A Act. They include the provisions of any planning instrument, the likely impact of the development on the natural and built environments, the suitability of the site for the development and the public interest.
28. The indemnity condition is not directed to the interests of the public safety or preservation or well being of the public. Instead it is directed solely to the issue of protecting the council from any liability in the event that a claim is made against it for damages relating to the effects of EMR. The sole beneficiary of the indemnity condition is the council, not the residents. Such condition could not be classified as one made in "the public interest" as referred to in s 79C(1)(e) of the EP&A Act since no protection whatsoever is provided to the public. It follows that the indemnity condition does not satisfy the test of validity, namely, that it relates to a "planning purpose".
29. In Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGRA 5 the Court determined that a condition of a development consent providing an indemnity to the council, having identical effect to the indemnity condition, was invalid. McClelland J at 11 determined with reference to s 90 of the EP&A Act as it then existed (now s 79C):-
Since the matters to which a consent authority is directed by s. 90 to give consideration are limited to the matters enumerated in that section the imposition of a condition, in order to be a valid exercise of the power conferred by s. 91, must relate to one or more such matters. In other words, the condition must be such as is required to give proper effect to the conclusions which a consent authority has reached as a result of proper consideration of a matter or the matters referred to in s. 90. Since the specific enumeration of matters for consideration in s. 90 excludes all other matters there is no power to impose conditions at large. The power must be located in the Act (s. 90 or, though not here relevant, s. 94). A condition having the effect of absolving a consent authority of any legal consequences of a negligent grant of consent finds no basis in any of the matters enumerated in s. 90. Such a condition is therefore ultra vires the Act.
[5]
Although the text of s 79C of the current EP&A Act differs to that contained in s 90 of the earlier statute, the requirements are relevantly the same.
30. The council relies upon a decision of Bignold J in Ireland v Cessnock City Council (1999) 103 LGERA 285. In the course of His Honour's judgment His Honour raised a theoretical possibility that a condition requiring a release or indemnity might be imposed to protect a council from liability for negligence. The council submits that such passage supports its submissions of validity of condition, and that the decision in Galandon should not be followed.
31. The Court does not consider that the passing observation made by His Honour Justice Bignold is sufficient to support the submissions of the council. The specific facts of that decision were complex and His Honour's remarks, which did not form the critical part of his decision, should not be taken out of context and treated as a considered decision on such issue. His Honour was apparently not referred to Galandon. Accordingly, the Court will follow the decision of the former Chief Judge in Galandon in determining that the indemnity condition is invalid.
Severability of the Indemnity Condition
32. It is necessary for the Court to consider the issue of severability. In Wechsler v Auburn Council (unreported: 40123 of 1996: judgment 5 March 1997), Talbot J referred to the provisions of s 32 of the Interpretation Act 1987 which provides for the severability of invalid provisions of an 'instrument'. His Honour said:-
The presumption of validity may only be displaced where the severed instrument operates in a fundamentally different way to the original instrument. The test is whether the rejection of the invalid part would have the result that the balance or remaining part of the provision would operate differently or in some other way would produce a different result.
His Honour's observations were followed by Lloyd J in MLC Properties and Anor v Camden Council and Ors (1997) 96 LGERA 52.
33. Stein J observed in Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 at p 18 that it is difficult to discern a "true test" for the severability of an invalid condition of consent. His Honour applied a test which raised the issue whether the invalid condition was fundamental and went to the root of consent. His Honour referred to the decision of the New South Wales Court of Appeal in Parramatta City Council v Kriticos [1971] 1 NSWLR 140, wherein Asprey JA said at 145:-
I am of the opinion that when the tests to which I have just referred are applied to the conditions attached to the consent here it will be seen that they relate to matters fundamental to the development or, as it has been put, to the root of the planning permission itself and restricted the permission applied for. Accordingly, in my opinion, the condition, if it were invalid, would render invalid the consent itself.
34. The test applied by Justice Stein accords with the approach of the New South Wales Court of Appeal in Winn v Director General of National Parks and Wildlife Service [2001] NSWCA 17 in which the Court determined (at par 212):-
A condition (or part of one) may be severable where it is superimposed on a consent if it is incidental, trivial, unimportant or mere surplusage. If a condition is fundamental to the whole of the consent, it cannot be severed and the whole consent is invalid.
35. In Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 Holland J adopted similar reasoning. His Honour held that a provision requiring a monetary contribution for car parking was invalid and not severable, the invalid condition related directly to the development. At 144 His Honour said:-
In my opinion, the correct view to take in the present case is that the condition objected to was a fundamental element of the approval which the council gave, and that in dealing with the application the council proceeded on a false basis, either as to its powers to impose the condition, or as to its expectation that the applicant would voluntarily pay the contribution required.
Applying the tests
36. The tests described above are divergent. The approach in Wechsler inquires whether the consent is able to operate in the same way as it would have without the invalid condition. The test applied by Stein J in Pacific-Seven inquires whether the condition sought to be severed is fundamental to the consent.
37. In reaching his conclusion that the invalid condition in Pacific-Seven was not severable, Stein J made several observations which factually distinguish that decision from the present circumstances. First His Honour observed that the council in Pacific-Seven believed that it had power to impose the condition and this course had been endorsed by its chief town planner. Accordingly the council had proceeded on the mistaken assumption that the invalid condition would form part of the consent. Justice Stein also observed that the issue with which the condition dealt was not one which was unimportant or incidental but went directly to the structure of the consent itself. There was no suggestion that the condition in question did not relate to the development. Rather, it was fundamental to its operation.
38. In Kent County Council v Kingsway Investments (Kent) Ltd; Same v Kenworthy [1971] AC 72 (cited with approval by Stein J in Pacific-Seven at 17) Lord Reid stated (at 90):-
Suppose that a planning authority purports to impose a condition which has nothing whatever to do with planning consideration but is only calculated to achieve some ulterior object thought to be in the public interest. Clearly, in my view the condition should be severed and the permission should stand.
39. In the present circumstance the indemnity condition is irrelevant to any planning purpose, its object being directed solely to the indemnification of council. Such condition is not one which goes "to the root of the planning permission itself". Instead the interests of the council only are served by the condition. Accordingly on application of this test, the condition is severable.
40. Were the Court to adopt the test for severability as enunciated by Talbot J in Wechsler the same conclusion would result. It cannot be said that the consent could not operate without the indemnity condition or would operate in a "fundamentally different way to the original instrument" (per Talbot J in Wechsler). A condition which has no planning purpose could not be fundamental to the development. If excised, the consent would operate in precisely the same way as envisaged by council, except that council would be deprived of the indemnity to which it has no statutory entitlement. Accordingly under either test the Court determines that the indemnity condition is severable from the consent.
Orders
41. The Court makes the following declarations and orders:
[6]
A DECLARATION that the purported condition of development consent referred to in Condition 2 of the Respondent's resolution of 26 February 2002 in respect of development application no. LD 631/01 is ultra vires and invalid.
A DECLARATION that the resolution of 26 February 2002 with Condition 2 excised constitutes a valid consent to development application LD 631/01 pursuant to s 80 of the Environmental Planning and Assessment Act 1979.
AN ORDER that the respondent issue, within 28 days of the date of this order, a Notice of Determination of development application LD 631/01 in the same terms as the respondent's resolution of 26 February 2002 without Condition 2.
AN ORDER that the respondent pay the applicant's costs of these proceedings.
AN ORDER that the exhibits be returned.
[7]
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.
Parties
Applicant/Plaintiff:
Hutchison 3G Australia Pty Limited
Respondent/Defendant:
Waverley Council
Cases Cited (9)
CITATION : Hutchison 3G Australia Pty Limited v Waverley Council [2002] NSWLEC 151
APPLICANT
Hutchison 3G Australia Pty Limited
PARTIES :
RESPONDENT
Waverley Council
FILE NUMBER(S) : 0105 of 2002
CORAM: Cowdroy J
KEY ISSUES: Development Application :- Indemnity for Council required as a condition of consent - condition ultra vires- severability
Environmental Planning and Assessment Act 1979, s 78A, s79C, s 80, s81, s 82
LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000, cl 102
Interpretation Act 1987, s 32
Local Government Act 1993
Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGRA 5;
Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130;
Ireland v Cessnock City Council (1999) 103 LGERA 285;
Kent County Council v Kingsway Investments (Kent) Ltd; Same v Kenworthy [1971] AC 72;
Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404;
Meriton Apartments Pty Limited v Minister for Urban Affairs and Planning (2000) 107 LGERA 363;
MLC Properties and Anor v Camden Council and Ors (1997) 96 LGERA 52;
CASES CITED: Newbury District Court v Secretary of State for the Environment [1981] AC 578;
Parramatta City Council v Kriticos [1971] 1 NSWLR 140;
Parramatta City Council v Peterson (1987) 61 LGRA 286;
Randwick Municipal Council v Pacific-Seven Pty Limited (1989) 69 LGRA 13;
Tooth and Company Limited & Anor v The Council of the City of Parramatta (1955) 97 CLR 492;
Trehy & Ingold v Gosford City Council (1995) 87 LGERA 262;
Wechsler v Auburn Council (unreported: 40123 of 1996; judgment 5 March 1997);
Winn v Director General of National Parks and Wildlife Service [2001] NSWCA 17
DATES OF HEARING: 09/08/2002
DATE OF JUDGMENT:
09/03/2002