Ipoh Pty Limited v Sydney City Council

Integral Energy Pty Limited v Blue Mountains City Council [1998] NSWLEC 284; Songkal Pty Limited v Warringah Council (2000) 111 LGERA 71; CASES CITED: Sydney City Council v Ilenace Pty Limited [1984] 3 NSWLR 414; Weldon v Neal (1887) 19 QBD 394

08/09/2005 DATES OF HEARING: 14/09/2005 (written submissions) 16/09/2005 (written submissions)

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

10323 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 dated 10 August 2005 seeking an order that these Class 1 proceedings be dismissed on the basis that the Class 1 Application was filed outside the statutory appeal period.

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") to upgrade parts of the QVB. On 13 September 2004, the Applicant lodged an amendment to the development application, which was accepted by the Council. The Council has not yet determined the development application. These Class 1 proceedings were commenced on 12 April 2005.

3 If the calculation of the statutory appeal period is 12 months and 40 days from the date of the amended development application the Class 1 Application was lodged within time. If not, the Applicant accepts that the appeal is out of time because the appeal was lodged more than 12 months after the date of the deemed refusal. It is surprising given how long these provisions have been in operation that this is not a settled question, but that appears to be the case.

Relevant legislation dealing with the appeal period 4 Section 97(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") provides: (1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the Court within 12 months after: (a) the date on which the applicant received notice, given in accordance with the regulations of the determination of that application, or (b) the date on which that application is taken to have been determined under section 82(1).

5 Section 82(1) of the EP&A Act provides: (1) A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires. …

6 Clause 113 of the Environmental Planning and Assessment Regulation 2000 ("the Regulations") provides: (1) For the purposes of section 82(1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within: (a) 40 days, except in the case of development referred to in paragraph (b), or (b) 60 days, in the case of: (i) designated development, or (ii) integrated development (other than integrated development that, pursuant to State Environmental Planning Policy No 62 - Sustainable Aquaculture, is Class 1 aquaculture development), or (iii) development for which the concurrence of a concurrence authority is required. (2) The 40-day and 60-day periods are measured from: (a) the date the development application is lodged with the consent authority, or … … Note: Clause 107 provides that certain periods of time are to be ignored when calculating a 40-day or 60-day period under this clause. Deemed refusal provisions do not apply to development under section 80(7) of the Act (where a public inquiry is held into designated development) or to any State significant development for which a public inquiry is held

7 The provisions dealing with the amendment of development applications is contained in cl 55 of the Regulations. Clause 55 of the Regulations provides: (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development. (3) If the development application is for: (a) development for which concurrence is required, as referred to in section 79B of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

8 It is relevant to this judgment to know that as a result of the 1997 amendments to the EP&A Act s 97 of the EP&A Act remained unchanged and s 96 of the EP&A Act became s 82(1) of the EP&A Act. In addition, as a result of amendments to the Regulations in 2000, cl 48A of the Environmental Planning and Assessment Regulation 1994 became the current cl 55 of the Regulations, and cl 70B of the Environmental Planning and Assessment Regulation 1994 became cl 113 of the Regulations.

Applicant's submissions 9 The Applicant relied on Integral Energy Pty Limited v Blue Mountains City Council [1998] NSWLEC 284 in which Talbot J held that the appeal period for a Class 1 appeal ran from when an amended development application was lodged, rather than the date of lodgement of the original development application.

10 Talbot J held that the legislative scheme was best served under s 96 of the EP&A Act (now s 82(1) of the EP&A Act) if amendments to development applications accepted by councils under cl 48A of the Environmental Planning and Assessment Regulation 1994 (now cl 55 of the Regulations) gave rise to a "new application" so that the appeal period ran from the date of the lodgement of the amendment with the council. While Integral Energy dealt with the EP&A Act as it existed in 1998 the substantive provisions in operation as identified in par 8 above now essentially mirror what was before his Honour.

Council's submissions 11 The Council submitted that the statutory provisions of s 97(1) and s 82(1) of the EP&A Act and cl 113 of the Regulations make clear that the relevant date of a development application referred to in s 97 of the EP&A Act is 40 days after the lodgement of the original development application on 12 January 2004. Further submissions 12 The Court undertook research and asked the parties to comment on the effect of Songkal Pty Limited v Warringah Council (2000) 111 LGERA 71 and Sydney City Council v Ilenace Pty Limited [1984] 3 NSWLR 414.

13 In Songkal, Sheahan J was required to consider, as in the present case, whether the time for lodgement of an appeal was to be determined by reference to the date of amendment of the development application. In that matter, the applicant lodged a development application for a four storey building on 29 April 1997. An amendment to the development application was lodged with the council in November 1999. An appeal against the deemed refusal of the 1997 development application was lodged on 12 May 2000. Sheahan J considered at [78] that as the November 1999 amendments did not contain all the information required for the Council to decide it, that a "fresh" development application was required to enliven the appeal period. Sheahan J stated at [75] - [76] that: The legislative scheme in ss 96-97 of the EP&A Act is clear on its face, and has the effect that an unhappy applicant cannot choose to rely on the 40 day provision to ground an appeal, and then escape the corollary that such an appeal must then be commenced within 12 months of the end of that 40 days.

While it may be more convenient for the applicant, and possibly also for the Council, for the court to hold that it has jurisdiction to determine the " DA " for No.701, as amended in 1999 and 2000, once and for all, this court cannot simply give itself jurisdiction to do so.

14 There is no reference in Songkal to the earlier case of Integral Energy. The Applicant argued that Songkal failed to take into account the statutory scheme and its clear purpose. Talbot J's approach in Integral Energy, applied the proper construction of the statutory scheme. That approach is more consistent with current theories of statutory interpretation than Sheahan J's textual approach and should accordingly be preferred. Conversely, the Council argued that Songkal supported the proposition that an amendment to a development application did not count for the purpose of determining when the statutory appeal period expired and could not affect the statutory appeal period.

15 In Ilenace, the Court of Appeal considered whether s 102 of the EP&A Act (now s 96 of the EP&A Act) afforded a right of appeal where an applicant was dissatisfied with a council's determination of a modification application. In obiter the Court of Appeal considered whether this Court had the power pursuant to s 97 of the EP&A Act to extend the time for appeal. Samuels and Mahoney JJA expressed an obiter view that there was no power under s 97 of the EP&A Act to extend the time of appeal under that section.

16 In relation to Ilenace the Applicant argued that the views of Samuels and Mahoney JJA in Ilenace were obiter. There was no discussion in that case of whether an amended application enlivened appeal rights pursuant to s 97 of the EP&A Act. The Council argued that Ilenace supported its contention that the statutory limitation period for lodgement of an appeal against the deemed refusal was clearly stated in s 97 of the EP&A Act and the Regulations.

Finding 17 The parties in this case have accepted that without amendment to a development application accepted by a council, the appeal period for a deemed refusal of a development application under cl 113(1)(a) of the Regulations is 12 months and 40 days from the date of lodgement. The key issue for me to determine is whether I should follow Talbot J in Integral Energy.

18 Section 97 defines the 12 month appeal period in s 97(1)(b) as commencing from the date of determination under s 82(1). That period by virtue of cl 113(1)(a) of the Regulations is 40 days after lodgement of the development application. It has to be said that a reading of these provisions does appear at first to support the approach in Songkal.

19 The key reason why I should follow Integral Energy is Talbot J's reasoning that the aim of s 82(1) (previously s 96(1)) is to allow a council reasonable time to consider a development application before it is exposed to an appeal against its deemed refusal. His Honour held that allowing the appeal period to run from the date of the amendment serves the aim of that section. That approach to statutory interpretation is purposive, and seeks to apply the words of the statute so that the purpose of the legislation is best served. This approach is confirmed by s 33 of the Interpretation Act 1987 which states that: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

20 I consider this approach to amendments to development applications does serve the interests of councils and applicants. Where amendments to development applications are accepted by a council, this approach allows for timely consideration of amended applications without requiring the applicant to appeal regardless of where the assessment process is up to in order to meet a fixed appeal period. Given that cl 55 of the Regulations allows for amendment only with the agreement of the consent authority, it is within a council's power to refuse an amendment. If that occurs the appeal period for a deemed refusal of a development application will be 12 months and 40 days under cl 113(1)(a) of the Regulations and s 82(1) and s 97(1) of the EP&A Act. 21 I consider that "lodged" in cl 113(2)(a) is intended to mean the date a development application is lodged in its final form. It therefore follows that the date an amended development application is lodged, where the amendment is accepted by a council, is the time from which the date of determination in cl 113(1)(a) is measured. Consequently the Applicant's Class 1 appeal was lodged within time as it was lodged within 12 months and 40 days of the date of the amended development application being lodged. 22 Reference is made in Integral Energy to the doctrine of "relation back" which Talbot J held did not apply to the circumstances before him. That doctrine as contained in Weldon v Neal (1887) 19 QBD 394 had developed in relation to limitations on the amendment of pleadings where an amendment was taken to be effective from the date of lodgement of the original pleadings. I also consider it is not relevant in these circumstances which are concerned with what is the appropriate approach to statutory construction of these provisions in the EP&A Act and the Regulations.

23 In Ilenace obiter remarks not binding on me were made to the effect that there was no provision for the Court to extend the time in which an appeal can be lodged. The case was not considering the same circumstances as here, namely the amendment of a development application. I do not consider my finding in relation to the time to appeal in relation to lodging an amended development application is at odds with that case. Orders 24 The Court makes the following orders:

1. The Notice of Motion dated 10 August 2005 is dismissed.
2. Costs of this motion are reserved.
3. Exhibits are to be returned.

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