Ipoh Pty Limited v Sydney City Council

Coshott & Anor v Woollahra Municipal Council (1988) 14 NSWLR 675; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; John Alexander Graham v Hornsby Shire Council [1998] NSWLEC 28; CASES CITED: Lee v Sydney City Council (1983) 50 LGRA 382; Paino v Woollahra Municipal Council (1990) 71 LGRA 62; Pimas Group Pty Limited v Maritime Services Board (NSW) (1994) 82 LGERA 205; Shellharbour City Council v Rovilo Pty Limited (1989) 16 NSWLR 104

APPLICANT: Mr J Ayling SC and Dr S Berveling (barrister) SOLICITORS: Home Wilkinson Lowry LEGAL REPRESENTATIVES: RESPONDENT: Mr M Craig QC SOLICITORS: Maddocks

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40376 of 2005 Ipoh Pty Limited v Sydney City Council

JUDGMENT 1 Her Honour: The Respondent, Sydney City Council ("the Council") has filed a Notice of Motion seeking orders that the proceedings be dismissed pursuant to Pt 13 r 5 of the Supreme Court Rules 1970 applicable by virtue of Pt 6 r 1 of the Land and Environment Court Rules 1996. Background 2 The Council owns the Queen Victoria Building ("the QVB") at 429 - 455 George Street, Sydney. The Applicant leases the QVB. On 12 January 2004, the Applicant lodged development application no. D2004/00015 ("the development application") for the upgrading of parts of the QVB. On 9 May 2005 the Council resolved to refuse to give its consent in writing as the owner of the QVB to the making of the development application. The Council has not determined the development application to date.

3 The Applicant has filed a Class 4 Application seeking the following relief:

1. An order that the Respondent forthwith give its consent in writing as the owner of the site to the making of development application No. D2004/00015 for Stage 1 Development Application for a Master Plan to guide the upgrading of certain elements of the Queen Victoria Building;
2. An order that having given the consent in writing referred to in order 1, and within 21 days of this order, the Respondent as consent authority determine development application No. D2004/00015 pursuant to s 80(1) of the Environmental Planning and Assessment Act 1979 by granting consent to the application either unconditionally or subject to conditions or by refusing consent to the application;
3. An order that having determined development application No. D2004/00015 as aforesaid the Respondent do forthwith notify its determination of the application to the Applicant in accordance with s 81(1) of the Environmental Planning and Assessment Act 1979;
4. An order that the Respondent pay the Applicant's costs of these proceedings.

4 The Notice of Motion seeks orders that the Class 4 Application be dismissed on the basis that no reasonable cause of action has been disclosed in relation to two issues: (i) Order to grant owner's consent; and (ii) Order to determine the development application. Relevant Provisions 5 Part 13 r 5 of the Supreme Court Rules 1970 provides: (1) Where in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) no reasonable cause of action is disclosed, (b) the proceedings are frivolous or vexatious, or (c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings. 6 The test to be applied in determining whether the proceedings should be summarily dismissed for disclosing no cause of action was stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 - 130: It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action--if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal--is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". … I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

(i) Order to grant owner's consent Council's submissions 7 The Council submitted that the Amended Points of Claim were simply a recitation of events as between the parties. There was no indication in the Amended Points of Claim of the legal basis for the claim.

8 In relation to the substance of the matter, the Council submitted that the Court does not have power under the Land and Environment Court Act 1979 ("the Court Act") to order the Council to grant owner's consent to the making of the development application. The Council argued that s 20(2)(b) of the Court Act only confers jurisdiction on the Court to hear and dispose of proceedings relating to "planning or environmental law". In the present circumstances the Council, as the owner of the site and the QVB, was exercising its rights as a private landholder to refuse to give its consent to the making of the development application. As the decision was not a matter relating to "planning or environmental law" the Court did not have jurisdiction to order the Council to grant owner's consent and the Applicant had no case. Applicant's submissions 9 The Applicant submitted that the Amended Points of Claim did contain in cl 11 the basis of the claim as follows: In the premises, the Respondent is required to give its consent in writing as the owner of the Queen Victoria Building to the making of the development application. This ground relies on case law, as set out in the letter of particulars supplied by the Applicant's solicitor dated 4 August 2005 in exhibit 1. It is not necessary that all of the matters in the letter of particulars be included in the Amended Points of Claim.

10 Further, the Applicant submitted that when granting owner's consent to the lodgement of a development application, a council is exercising a function relating to "planning and environmental law". The Applicant argued that previous case law made it clear that a council exercised a planning function, and not merely a function arising from property ownership, when granting owner's consent. Finding 11 This is not a court of strict pleading but it is necessary that the Applicant identify the nature of its claim in the Amended Points of Claim. It has done this in cl 11 and expanded on that ground in the particulars provided by the Applicant's solicitor.

12 As this is a strike out application it is necessary that I determine if the Applicant has an arguable case or there is no reasonable cause of action. The jurisdiction for the orders sought in the Class 4 Application arise from s 20(2)(b) of the Court Act. Section 20(2) of the Court Act states: The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings: … (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract, …

13 In Shellharbour City Council v Rovilo Pty Limited (1989) 16 NSWLR 104, Clarke JA (with whom Samuels and Meagher JJA agreed) stated at 112: Counsel for the appellant submitted that the power to grant consent to the lodging of a development application was not a function conferred or imposed by a planning and environmental law. The right to grant or decline consent was, he argued, an incident of the appellant's ownership of the and on which the road was situated and was to be treated no differently than the right of a private owner to withhold consent.

If the appellant was a private person then that submission would undoubtedly be correct… But this is not the case…

The council is placed in a special situation where an application is made to it for development approval for the erection of a structure partly on its road. The fact that it has not given its consent to the making of the application does not, as Claude Neon established, debar its consideration of the merits of the application. Furthermore, if it simply does nothing the applicant may appeal to the court which has all the powers of the council including the power to consent to the lodgment of the application.

If this be correct then the power to grant the consent to the making of the application should be seen as an incident of the power to grant or refuse the application and the exercise of that power should be understood as falling within s 20(2)(b) of the Court Act.

14 In Paino v Woollahra Municipal Council (1990) 71 LGRA 62, Hemmings J considered that the granting of the owner's consent to the making of the development application conferred no right in property and had no effect on the lease.

15 In Pimas Group Pty Limited v Maritime Services Board (NSW) (1994) 82 LGERA 205, Stein J stated at 208: It seems to me plain that there is that nexus between the application and the relevant functions and discretions vested in the Maritime Services Board. Therefore, the power exists in the Court to exercise the function and discretion of the Board for the purposes of disposing of the appeal before the Court. It is a planning power (for the purposes of the Environmental Planning and Assessment Act ) and not a property power.

16 In my view, the cases of Rovilo, Paino and Pimas establish that there may be a legal basis pursuant to s 20(2)(b) of the Court Act for the Court to order the Council to give owner's consent to the development application. It is clear this issue is arguable and that there is a reasonable cause of action disclosed. (ii) Order to determine development application Council's submissions 17 Once again the Council argued that the Amended Points of Claim are a recitation of events and there is no legal basis for this claim articulated. On the substantive issue, the Council submitted that there was no legal basis upon which the Court could order the Council to determine the development application. The Council argued that there was no duty imposed on the Council to determine the development application within any specified time and, accordingly, there was no legal basis upon which the Court could so order. The proper basis for challenge was contained in s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), which provided for a right of appeal. The Council submitted that without any legal basis the order sought in the Class 4 Application was manifestly groundless. Applicant's submissions 18 Clause 12 of the Amended Points of Claim states: The Respondent has failed to determine the development application pursuant to s 80(1) of the Environmental Planning and Assessment Act 1979 by granting consent to the application either unconditionally or subject to conditions by refusing consent to the application. This ground is expanded upon in the letter of particulars provided by the Applicant's solicitor in exhibit 1, which cites previous case law where the Court has ordered the Council to determine a development application. 19 The Applicant argued that the Court has power to order the Council to determine the development application. The Applicant submitted that the Council has a statutory duty pursuant to s 80(1) of the EP&A Act to determine the development application and, on this basis, the Court could compel the Council to do so. Finding 20 This is not a court of strict pleading but it is necessary that the Applicant identify the nature of its claim in the Amended Points of Claim. It has done this in cl 12 and expanded on that ground in the particulars provided by the Applicant's solicitor. It is necessary to determine if this ground discloses no reasonable cause of action.

21 Section 80(1) of the EP&A Act states: A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. 22 The Council relied on the decision of Wood J in Coshott & Anor v Woollahra Municipal Council (1988) 14 NSWLR 675 who stated at 683 that: As a matter of interpretation of the Act, I conclude that there was no duty imposed on the Council to process and determine the development application within any particular time.

23 In Coshott Wood J was required to consider whether a council owed the plaintiff a duty of care to process his development application diligently. Wood J held that no such duty of care arose, and accordingly struck out the plaintiff's statement of claim as disclosing no cause of action. 24 The Applicant relied on John Alexander Graham v Hornsby Shire Council [1998] NSWLEC 28, where Pearlman J stated at 3 that: The remedy of mandamus is a discretionary remedy. Its purpose is to compel a public authority charged with the performance of a public duty to discharge that duty ( The King v The Mayor, Alderman and Councillors of Stepney (1902) 1 KB 317 at 321) and it is an appropriate remedy in circumstances where a council fails to determine the application before it (cf City of Marion v Lady Becker and Ors (No 2)(1973) 30 LGRA 288 at 322; Lee v Sydney City Council (1983) 50 LGRA 382 at 386). 25 In Lee v Sydney City Council (1983) 50 LGRA 382 Cripps J stated at 386 that: There is a discretion in the court to refuse to grant the remedy of mandamus or to refuse an application in the nature of mandamus where the legislation has provided a remedy which is appropriate and adequate: Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492 at 498. However, in that case, the court, when dealing with provisions relating to rights of appeal under planning legislation, said: "No doubt it would not be right to treat the provisions creating them as excluding as a matter of legislative intention an application for mandamus where there has been a clear failure on the part of the council to perform a public duty imposed upon it." Although the resolution of the council is somewhat ambiguous, I interpret it as meaning that the council considered the matter at a meeting and concluded that because the stated purpose for which the premises were to be used was illegal, it would not consider other matters referred to in s 90. But if the assumption is made the council had an obligation to consider matters under s 90, it failed to do so. The fact that there is a right of appeal against a refusal or a deemed refusal does not, in my opinion, of itself disentitle an applicant to an order such as here sought. However, because I have concluded that the council was entitled to take the view that it was not bound to consider the application, the question does not arise.

26 It is clear from the parties' respective arguments in relation to these cases that there is an arguable case to be tried on this issue. Accordingly, I consider that the Notice of Motion should be dismissed. Orders 27 The Court orders that:

1. The Notice of Motion dated 11 August 2005 be dismissed;
2. The Council pay the Applicant's costs of the motion.

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.