Ironlaw Pty Ltd v Wollondilly Shire Council

Background 7It is common ground between the parties that an application for development consent was lodged with the Council on 2 July 2012. That application was assigned the number DA 010.2012.00.336.1. The development that was the subject of that application is sufficiently described for present purposes as being for the erection and operation of a waste management facility, comprising the erection and operation of a waste and resource transfer station, a resource recovery facility, truck depot, ancillary facilities and the carrying out of off-site road works to facilitate access and egress. I have earlier identified the land upon which the facilities are proposed. 8The development application was accompanied by a statement of environmental effects (the SEE). The latter document identified, in detail, the structures to be erected, works to be carried out, the manner in which the proposed development would be conducted, together with the nature and extent of both on-site and off-site works. The author of the SEE also assessed the impact of carrying out the proposed development. 9Further information was sought by the Council from the applicant on 9 July 2012. Some of that additional information was provided on 4 September 2012. What appeared to remain outstanding was the consent of owners of land upon which off-site road works were to be carried out. 10As I have already stated, the application by way of appeal to this Court was filed on 7 September 2012. Shortly thereafter adjoining landowners were notified of the development application and the making of the application was advertised by the Council. That process took place between 20 September and 22 October 2012, being the period during which the notice and advertisement indicated that submissions could be made to the Council in respect of the application. 11The Council's statement of contentions was not filed in these proceedings until 15 November 2012. Paragraph 1 of the contentions claimed that the development application was invalid because it was designated development, being a "waste management facility" within the description of such a facility in cl 32 of Sch 3 to the Environmental Planning and Assessment Regulation 2000 (the Regulation). Particulars to that contention identified those provisions of cl 32 that were said to be engaged by Ironlaw's application. The contention made on 15 November that the development was designated development was the first occasion since lodgement of the application on 2 July that such a contention had been advanced by or on behalf of the Council. 12Ironlaw disputed the Council's contention. Both parties applied to have that contention determined as a separate and preliminary question, an application to which I acceded on 29 November 2012. By that time the Council had amended its contentions although not the particulars of the contention pertaining to designated development. The preliminary question was fixed to be heard on 4 February 2013. 13However, in correspondence on both 20 and 21 December 2012, the solicitors for the Council identified two additional bases upon which it was contended that the development application was an application for designated development, having regard to the provisions of cl 32 of Sch 3 to the Regulation. Those additional bases were that the development site was within 100m of an "environmentally sensitive area" and that the intended handling capacity of the facility was arguably "more than 30,000 tonnes per year". These new grounds upon which the application was asserted to be one for designated development were founded upon cl 32(1)(d)(i) and cl 32(1)(b)(iii) respectively of Sch 3. 14By letter dated 3 January 2013 from Ironlaw's solicitors to the Council's solicitors, Ironlaw conceded that its development application was for designated development. It did so by acknowledging that its development should be so categorised, having regard to the matters raised on behalf of the Council on 20 and 21 December. As a consequence, Ironlaw did not pursue determination of the separate question that was fixed for hearing on 4 February. 15In the meantime, application was made on behalf of Ironlaw to the Director-General for his environmental assessment requirements with respect to Ironlaw's proposed development. That application was made pursuant to cl 3(2) of Sch 2 to the Regulation. In response, the Director-General's requirements were notified on 9 January 2013 and a copy of those requirements provided by letter of that date to the Council. Thereafter, consultants retained by Ironlaw proceeded to prepare an environmental impact statement. 16An environmental impact statement titled "Proposed waste/resource transfer station, resource recovery facility and truck depot", dated January 2013 was provided to the Council on 5 February 2013 (the EIS). The development described in the EIS is said to be identical to that identified in the application and accompanying SEE lodged with the Council on 2 July 2012, a proposition that I do not understand to be contradicted for the purpose of arguing the present application. Clearly enough, the material contained in the EIS was more comprehensive than that contained in the SEE lodged with the original application. 17By letter dated 13 February 2013 addressed to Ironlaw, the Council acknowledged having received the EIS and made a number of observations in relation to it. As the EIS had been submitted to the Council by Ironlaw's planning consultant, who had requested that the development application be amended to reflect its description as designated development, the Council indicated in its letter to Ironlaw that the request for amendment of the development application should be made by Ironlaw itself as it was the applicant for development nominated in the application lodged on 2 July 2012. The letter from the Council also requested that the EIS contain additional information. Reference was made to the provisions of cl 55(1) of the Regulation which allows the amendment of a development application at any time before determination "but only with the agreement of the consent authority". 18The EIS, in an amended form, was provided to the Council by Ironlaw's planning consultant on 19 February 2013. The covering letter with which the EIS was provided indicated the amendments that had been made and sought to explain why some of the amendments sought by the Council in its letter of 13 February had not been included in the amended EIS. 19On 1 March 2013 the Council notified a number of State instrumentalities and statutory bodies necessary to be consulted prior to determination of the development application and from whom general terms of approval were sought, if appropriate, because the application was and always had been an application for integrated development within the meaning of s 91 of the EPA Act. A standard form of letter was sent to each entity, that letter including the following paragraph: "Please note that this application had previously been referred to you as an 'Integrated Development', the applicant now acknowledges that the proposal is a Designated Development and has submitted an Environmental Impact Study [sic] (EIS) as required by the provisions of the EP & A Act and Regulation. As such the application is being re-exhibited and the EIS is forwarded to you for comment." Each letter indicated that the application would be advertised for a period of 30 days. The reference number given in respect of the development application was the reference number that applied to the development application as lodged on 2 July 2012. 20The amended development application was publicly notified by the Council on 1 March 2013 as required by the provisions of the Regulation. The period of public exhibition was 30 days commencing on 6 March 2013. 21On 21 March 2013, Roads & Maritime Services (RMS) wrote to the Council indicating that Ironlaw's development proposal, as described in the amended EIS, would not be supported. A number of matters that were required to be addressed by Ironlaw were identified in that letter. A copy of that letter was provided to Ironlaw by the Council on 22 March 2013. 22The significance of this latter correspondence will be addressed in due course. It is relevant to Ironlaw's alternate submission as to the making of an order nunc pro tunc for the lodging of its appeal under s 97 of the EPA Act. 23As I have earlier recorded, the Council's notice of motion seeking summary dismissal of the present appeal was filed with the Court on 1 February 2013.

The statutory provisions 24Having regard to the issues between the parties, it is necessary to notice some of the provisions of both the EPA Act and the Regulation that pertain to the making of a development application. The expression "development application" is relevantly defined in s 4 of the EPA Act to mean "an application for consent under Part 4 to carry out development". Those provisions of the EPA Act to which I next refer are all contained in Pt 4 of that Act. 25Section 78 states that the "main steps" in the development consent process are set out in ss 78A to 81 of the EPA Act and in the Regulation. Section 78A relevantly provides: "78A Application (1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development. ... (8) A development application (other than an application in respect of State significant development) must be accompanied by: (a) if the application is in respect of designated development - an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations. ... (9) The regulations may specify other things that are required to be submitted with a development application." 26Section 79(1) identifies those steps that "must" be taken by a consent authority "[a]s soon as practicable after a development application is made for consent to carry out designated development". Those steps relate to the giving of public notice and effecting exhibition of the development application. 27Clauses 49 and 50 of the Regulation make further provision for the making of a development application. Clause 49(1) provides for a development application to be "made" either by the owner of the land to which the application relates or by any other person, with the consent of the owner of that land. Clause 50 relevantly provides: "50 How must a development application be made? (1) A development application: (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1. ... (6) If the development application is for designated development, the consent authority must forward to the Director-General (where the Minister or the Director-General is not the consent authority) and to the council (where the council is not the consent authority) a copy of the environmental impact statement, together with a copy of the relevant application." 28Part 1 of Sch 1 to the Regulation identifies in cl 1(1) the information that must be included in a development application. Clause 2 of Pt 1 of Sch 1 identifies those documents that are required to accompany a development application. Relevantly, cl 2(1) provides: "(1) A development application must be accompanied by the following documents: ... (e) an environmental impact statement (in the case of designated development or State significant development) ... ." 29Clause 51 of the Regulation identifies circumstances in which a consent authority may reject a development application. Relevantly, the clause empowers a consent authority so to do within 14 days after receiving a development application if it is not accompanied by any document specified in Pt 1 of Sch 1 to the Regulation: cl 51(1)(b). If an application is rejected under the provisions of cl 51 it is taken "for the purposes of the Act never to have been made": cl 51(3). 30As earlier recorded, Ironlaw's application to this Court is founded upon s 97 of the EPA Act. Relevant to consideration of the issues raised in the present proceedings, the section provides: "97 Appeal by applicant - development applications (1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application ... may appeal to the Court within 6 months after: ... (b) the date on which that application is taken to have been determined under section 82(1). ... (6) An appeal under this section relating to a development application for consent to carry out designated development in respect of which an objection has been made in accordance with the regulations must not be heard by the Court until after the expiration of the time within which an objector may appeal to the Court under section 98." 31Section 82(1) 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." 32Clause 113 of the Regulation provides that the deemed refusal period for the purpose of s 82(1) of the EPA Act is 40 days, except for specified kinds of development, which relevantly include designated development. In the case of designated development the deemed refusal period is 60 days. Subclause (2) of cl 113 states that the deemed refusal period is measured from: "(a) the date the development application is lodged with the consent authority". 33If, contrary to the submissions of Council, the present appeal is constituted by the Application Class 1 filed on 7 September 2012, both parties accept that a deemed refusal period in excess of 60 days had elapsed by that date, with the consequence that the appeal is competent. 34However, the provisions of cll 107-110 of the Regulation, described as the "stop-the-clock" provisions, need to be noticed for the purpose of considering Ironlaw's alternate submission, in effect seeking a nunc pro tunc order. The specifics of those provisions will be addressed when considering that submission. 35In identifying the statutory or regulatory provisions relevant to the consideration of the issues in the present matter, it is also necessary to notice the provisions of ss 97A and 98 of the EPA Act. Section 97A(1) requires that a consent authority give notice of an appeal under s 97 to an objector where the appeal concerns a development application in respect of which an objector may appeal under s 98. Having been given a notice in accordance with subsection (1), an objector is, on application made to the Court in accordance with the rules, within 28 days thereafter "entitled to be heard at the hearing of the appeal as if ... a party to the appeal". 36Section 98 affords a right of appeal to the Court by an objector to an application for designated development. The evidence discloses that there were a large number of "objectors" following public notification of the development proposal both in the period between 20 September and 22 October 2012 and following exhibition of the proposal accompanied by the EIS in March and April this year.

The Council's contention 37In essence, the Council submits that the present proceedings by way of appeal are incompetent because at the time at which the proceedings were commenced there was no "properly constituted" development application. The application was not "properly constituted" because the requirement imposed by s 78A(8) had not been satisfied, namely the application was not accompanied by an environmental impact statement. Absent an environmental impact statement accompanying the development application, it was submitted that there has not been a development application "lodged" with the Council that engages the provisions of cl 113(2) of the Regulation and thus the operation of s 82(1) of the EPA Act. As Ironlaw's appeal was necessarily founded upon s 82(1) being engaged, having regard to the provisions of s 97(1)(b) of the EPA Act, the statutory condition precedent for commencement of the proceedings was not satisfied. 38In support of its submission, reliance is placed by the Council upon the decision of the Court of Appeal in Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; (2000) 50 NSWLR 312. In the context of the provisions of the EPA Act and the Regulation, as then in force, the Court determined that a development application, properly categorised as being an application for designated development, was not "made" until accompanied by an environmental impact statement (per Stein JA at [18] and Fitzgerald JA at [50]). 39The Council also contended that its submission was supported by the judgment of Tobias JA (Young CJ in Eq and Campbell J, as their Honours then were, agreeing) in Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; (2006) 150 LGERA 81. By reference to what his Honour said at [69], [78] and [80], the Council submits that "fundamental to the existence of a (valid and proper) development application" is the provision of those documents to accompany the application that are identified in s 78A(8), being an environmental impact statement and/or a species impact statement if the proposed development is to take place on land having the characteristics identified in paragraph (b) of the subsection (Council's written submissions at [15]). 40The Council acknowledges that the observations by members of the Court of Appeal in the cases to which it refers were made in proceedings in which the validity of a decision to grant development consent was challenged when, at the time of granting that consent, the document required by the EPA Act to accompany the development application had not been provided to the decision-maker. The reasoning in the judgments is nonetheless applied to support the submission that no development application exists sufficient to found an appeal until, relevantly, an environmental impact statement is provided to accompany the development application (Council's submissions at [22]). 41As the EIS prepared on behalf of Ironlaw was not provided to the Council until 5 February 2013, it was that date that the development application was "made". Hence, so it is submitted, that was the date upon which the deemed refusal period commenced to run conformably with cl 113 of the Regulation. As a consequence, reliance upon a deemed refusal period as having elapsed by 7 September 2012, when the present proceedings were commenced, lacked statutory foundation. 42Mr A E Galasso SC, who appeared for the Council, also identified provisions of the EPA Act and Regulation which he submitted indicated the significance that attends the provision of an environmental impact statement when an application for consent to carry out designated development is sought from a consent authority. First, he refers to the language of s 78A(8) stating that a development application for development that is designated development "must be accompanied by" an environmental impact statement. Publication and notification requirements for designated development are imposed by s 79 and the application cannot be determined until the exhibition period has expired: s 80(9). Importantly, the development application "and accompanying information" must be placed on exhibition (s 79(1)(a)), the "accompanying information" no doubt including the environmental impact statement. 43Mr Galasso also referred to the provisions of ss 81(1)(b), 82A, 97(6), 97(7), 102(2) and Sch 4A to the EPA Act and cl 113(3) of the Regulation. Schedule 4A to the EPA Act identifies designated development of the type proposed by Ironlaw as being development for which a consent authority function may be exercised by a joint regional planning panel. The Council contemplated that the consent authority to determine the present application was the Sydney West Joint Regional Planning Panel. 44All of these provisions are identified to demonstrate the significance of an environmental impact statement as an essential component of a development application for designated development. As a consequence, so it is submitted, they support the Council's contention that the provision of an environmental impact statement to accompany the development application is "fundamental to the 'making' or the existence (and hence lodging) of a development application so as to afford jurisdiction to this Court" (Council's written submissions at [47]). They are provisions that are said to identify the environmental impact statement as more than a procedural formality and thus a basis upon which to distinguish those cases which had determined the time by which the consent of the owner of land was required in order for a consent authority validly to determine a development application. 45It will be recalled that by cl 49(1)(b) a development application may be made by a person, other than the owner of the land to which the application relates, with the consent in writing of the owner of that land. When an application is made under that provision, the combined effect of cl 50(1)(a) and Sch 1 to the Regulation (cl 1(1)(i)) is that evidence of the consent of the owner of the land is information that the development application must contain. Provisions to the same effect as those presently found in cll 49 and 50 were originally expressed in the EPA Act and subsequently in various iterations of the Regulation. 46In a number of decisions given by this Court, it has been held that notwithstanding the failure to lodge the consent of the owner of land at the time of making the development application, that failure can be rectified at any time prior to determination of the application by the consent authority, including determination on appeal to this Court under s 97 of the EPA Act. A number of those decisions were cited, without dissent, by Stein JA in Remath Investments at [5]-[7]. The later decision of Pearlman J in Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning [2002] NSWLEC 123; (2002) 122 LGERA 255 at [24] is to similar effect. 47Implicit in that line of authority is the proposition that the absence of the document evidencing the land owner's consent, as a document required to be contained in or with the development application, did not deny the existence of the application as a "development application" within the meaning of the EPA Act nor deny the jurisdiction of the Court to entertain an appeal under s 97 when the land owner's consent had not been provided at the time at which the appeal to this Court was commenced. While some of the authorities cited involved challenges to the power of a council, as the consent authority, to process and determine an application when the land owner's consent had not accompanied the development application as lodged, other decisions did involve the determination by the Court that the proceedings before it by way of appeal under s 97 could proceed, notwithstanding the absence of land owner's consent when the appeal was instituted (see, for example, the decision of Hemmings J in Amacon Pty Ltd v Concord Municipal Council (2 December 1987, unreported), cited by Stein JA at [6] in Remath Investments. 48That line of authority is distinguished by the Council in the present case. The significance that attaches to the provision of an environmental impact statement in the course of processing and considering a development application is, so it is submitted, significantly different from the need to have the land owner's consent only at the time of determination. The latter document does not bear at all upon the manner in which the development application is to be considered.

Ironlaw's response 49Ironlaw accepts that prior to the provision of the EIS to the Council on 5 February last, the development application lodged on 2 July 2012 was incomplete, a position that pertained until 5 February 2013 when the EIS was provided to the Council. Nonetheless, it denies the contention on behalf of the Council that the absence of the EIS at the time at which its appeal to the Court was filed in September last, the lodgement of its development application was insufficient "to engage the deemed refusal period" (a reference to the terms in which [13] of the Council's written submissions were framed). 50There can be no doubt that those documents identified in the EPA Act or the Regulation as being required to accompany a development application are significant in the context of considering and determining a development application. Indeed, authority makes clear that the determination of a development application in the absence of an environmental impact statement, in the case of designated development, or in the absence of a species impact statement required by s 78A(8)(b), would be invalid (Helman v Byron Shire Council (1995) 87 LGERA 349; Remath Investments; Cranky Rock Road; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504). As Basten JA observed in McGovern at [189]: "It is well-established that, absent substantial compliance with such statutory prescriptions, there can be no valid determination of such an application." 51However, Ironlaw correctly submits that none of the authorities to which reference has been made establishes that a development application which, when lodged, is not accompanied by an environmental impact statement or other document identified in the EPA Act or Regulation, is invalid or ineffective for all purposes. As Spigelman CJ observed in Currey v Sutherland Shire Council [2003] NSWCA 300; (2003) 129 LGERA 223 at [35]: "I see very little, if any, scope in this legislative scheme for the concept of a "valid" application. Citizens are entitled to apply to authorities for whatever they like. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument provides that development may not be carried out except with consent. There is no relevant prohibition, express or implied, which impinges upon the application making process." 52In Remath Investments Stein JA eschewed describing as "invalid" a development application for designated development that, at the time of lodgement, was not accompanied by an environmental impact statement. At [14] his Honour said: "That is not to say that a development application is invalid or void if it is not accompanied by, for example, an EIS, SIS or the prescribed fee, at the very time of its lodgement with the consent authority. Substantial compliance may be satisfied by the later accompaniment of the required document ... ". 53Further, Ironlaw submitted that none of the authorities to which reference has been made directly supported the contention made by the Council that an application made for designated development unaccompanied by an environmental impact statement at the time of lodgement, had the consequence that the provisions of s 82(1) of the EPA Act were not engaged, at least until such time as an environmental impact statement had been provided to the consent authority. Reliance by the Council upon the decision in Remath Investments to contend otherwise was, so it was submitted, misplaced. In my opinion, there is substance in Ironlaw's submission. 54The legislative provisions considered in Remath Investments are important to be noticed when seeking to apply the decision of the Court of Appeal in that matter. Development applications for consent to designated development had been lodged with the appellant council. Although accompanied by a document referred to as an "environmental impact statement", that document was not prepared in accordance with the Regulation as in force at that time. After the development application had been lodged but prior to its determination by this Court upon remitter from the Court of Appeal, the EPA Act was amended. However, transitional provisions had been inserted into the Regulation, as then in force, including cl 11 of the transitional Regulation which provided that "any development application made, but not determined" at the appointed day for commencement of the amending legislation, should be determined under the provisions of the unamended EPA Act. An environmental impact statement purporting to comply with the requirements of the Act and Regulation was not provided until after the amending legislation had come into effect. The question that fell for determination was whether, in the context of the unamended Act and cl 11 of the transitional Regulation, the development application had been "made" prior to the commencement of the amending legislation. 55Section 77(3) of the unamended EPA Act relevantly provided: "(3) A development application shall: (a) be made to the consent authority; (b) be made in the prescribed form and manner;" Paragraphs (c) to (e) of s 77(3) then identified the documents that were required to accompany the development application, together with the requirement that the application be accompanied by a fee. In the context of s 77(3)(b), it was accepted that paragraphs (c) to (e) of the subsection identified the "manner" of making a development application. 56The Court of Appeal determined that the development application by Remath Investments had not been "made" at the time at which the amending legislation took effect. It held that reference to an application being "made" within the meaning of cl 11 of the transitional Regulation necessitated reference to the provisions of s 77(3)(b) of the unamended EPA Act. That required an application be "made in the prescribed form and manner" and as the manner of making the application had required the provision of an environmental impact statement prepared in accordance with the unamended Regulation, the application had not been made in accordance with the subsection as at the date upon which the amending legislation took effect (Stein JA at [15]-[18] and Fitzgerald JA at [48]-[50]). 57The statutory language central to the issue in Remath Investments is not found, in terms, in the current provisions of the EPA Act or Regulation. Section 78A of the EPA Act does not require a development application to be made in a prescribed "form and manner" and no such formulation is used in cl 50 of the Regulation prescribing how a development application is to be made. While the imperative "must" is used in each of s 78A(8) and cl 50(1)(a), authority to which I have referred establishes that the absence of material so required does not detract from the proposition that the application lodged with the Council in the present case is a "development application" within the meaning of s 4 of the EPA Act. 58Critical to the submissions made on behalf of Ironlaw is cl 113(2) of the Regulation. The subclause stipulates that the deemed refusal period for the purpose of s 82(1) of the EPA Act be measured "from the date the development application is lodged with the consent authority" (my emphasis). 59The Council does not contest the proposition by Ironlaw that the application received by the Council on 2 July 2012 was a development application within the meaning of s 4 of the EPA Act and that it was an application "lodged" with it on that date. 60The requirement that a development application be "lodged" in order to engage the provisions of cl 113(2) is, so Ironlaw submits, conceptually different from a requirement that an application be "made" in a prescribed form and manner, at least in the context of provisions of the kind considered in Remath Investments. Under the current provisions of the EPA Act and the Regulation there are no "interconnecting" provisions that would either qualify or broaden the concept of "lodgement" under cl 113(2). I accept that submission. 61While there are a number of consequences that flow from the fact that documents nominated in the EPA Act or Regulation do not accompany the development application, their absence does not detract from the fact that the development application has been lodged. So much is implicit in the observations made by Stein JA in Remath Investments at [14]. 62One consequence of the absence of a document required to accompany a development application at the time of its lodgement with the consent authority and relevant to the present case is that the consent authority is unable to proceed with the public notification and exhibition of the development application in accordance with s 79 of the EPA Act. Another consequence of present relevance is that the Council is unable to determine the development application in the absence of an environmental impact statement. Do these circumstances have the consequence that the "lodgement" required to trigger the deemed refusal period, has only occurred once the development application together with all those documents and information required by the EPA Act and Regulation, or at least, those documents required by s 78A(8) "to accompany" the development application (cf Cranky Rock Road at [69]) have been provided to the consent authority? Ironlaw's response to that question is in the negative. As Ironlaw submitted, its response to the question is supported by the provisions of cl 51 of the Regulation. 63As I have earlier recorded, cl 51(1) enables a consent authority to reject a development application within 14 days after receiving it if: "(b) the application does not contain any information, or is not accompanied by any document, specified in Part 1 of Schedule 1 ...". It will be remembered that the provision of an environmental impact statement in the case of an application for designated development is one of those documents identified in Pt 1 of Sch 1 to the Regulation when an application is made for consent to designated development. 64Subclause (3) of cl 51 provides that where an application is rejected under the clause, it is taken for the purpose of the Act "never to have been made". 65The provisions of cl 51 identify two matters of present relevance. First, the clause identifies a means by which the consent authority can exercise a power that will terminate the running of a deemed refusal period under cl 113 of the Regulation and thus deny any entitlement to appeal under s 97(1)(b) of the EPA Act. Second, the terms in which subclause (1) of cl 51 are framed clearly distinguish between the development application that is made and those documents that are required to accompany that development application. That distinction is the subject of observation by Basten JA in McGovern v Kur-ing-gai Council where his Honour said (at [194]): "The requirements in the EP&A Regulation must be considered in their context, including cl 51(1) which empowers a consent authority to "reject" a development application within seven days after receiving it, if it does not comply with the requirements of cl 50(1)(a) or is "illegible or unclear as to the development consent sought." It might be thought curious if such a development application which was not so rejected was nevertheless invalid. Indeed, if it were not a development application at all, it is curious that cl 51 should refer to it as such ... . On the other hand, it may be that cl 51 merely allows the Council to cut short any uncertainty which might arise from the lodgement of an incomplete application. If that were the case, the approach of Stein JA in Remath Investments would have continued operation in those cases where the application was not rejected." 66Reliance is also placed by Ironlaw upon the provisions of cl 54 of the Regulation. By subclause (1), a consent authority may request an application for development consent to provide it "with such additional information about the proposed development as it considers necessary to its proper consideration of [that] application." The information that may be so requested is by subclause (3) is that which includes "but is not limited to, information relating to any relevant matter referred to in section 79C(1)(b)-(e) of the Act". 67That clause would empower the Council to seek information in order to determine whether, for example, the application before it was one that should properly be identified as designated development. The request for information that may be sought under cl 54 is also linked to the provisions of cl 109 which stops time running under cl 113 for a nominated time while the request for additional information remains unanswered.

Ironlaw's submissions should be accepted 68I accept the submissions advanced by Ironlaw, essentially for those reasons it has advanced as well as those that I have already articulated in response to particular submissions made by Ironlaw. Apart from the language of cl 113(2) of the Regulation, it seems to me that cll 51 and 54, particularly the provisions of cl 51, identify those circumstances in which the deemed refusal period identified in cl 113 ceases to run and so deny an entitlement to appeal in reliance upon s 97(1)(b) of the EPA Act. The fact that in the present case an environmental impact statement was required before determination of the development application could lawfully be undertaken does not detract from the fact that a development application had been "lodged" within the meaning of cl 113(2). 69The evident purpose of the relevant provisions of the EPA Act and Regulation is to identify a period within which a consent authority can identify the absence of required material or information to accompany or in support of a development application. If the consent authority fails to do so, (as the Council failed to do in the present case) the combined operation of ss 97(1)(b), 82(1) and cl 113(2) of the Regulation is to afford the opportunity to the applicant for development consent to have the Court determine that development application. Expressed differently, those provisions ensure that there is a mechanism for determination of a development application where there is delay on the part of a consent authority beyond that period or those periods which the legislature has considered appropriate for the consent authority to have responded to or made a determination of a development application that has been lodged. 70The provisions of the EPA Act and Regulation to which I have latterly referred, clearly contemplate a circumstance where the process of assessment of a development application by a consent authority has not been concluded or even commenced at the time at which a right of appeal under s 97(1)(b) of the EPA Act is properly exercised. Once the appeal has been commenced pursuant to the subsection, the Court has the power to exercise the functions of the Council in hearing and disposing of the appeal (Land and Environment Court Act 1979, s 39(2)), while the Council retains the power to determine the application "without prejudicing the determination of the appeal by the Court" (EPA Act, s 82(2) and (3)). There is no restriction implicit in the statutory provisions upon the Court directing the Council to take such administrative steps as may be necessary to address, for example, the public notification of a development application, whether that publication be required by a provision such as s 79 of the EPA Act or under the provisions of an adopted development control plan requiring notification of new development applications. The likelihood that such administrative steps are required after an appeal has been commenced, being steps ordinarily undertaken by a consent authority as part of its function when considering a development application, must clearly have been within the contemplation of the legislature when enacting the "deemed refusal" provisions of the EPA Act. 71Having regard to the legislative and regulatory regime to which I have referred, I do not regard the circumstance that a development application is "incomplete" in the sense earlier discussed, renders that application "ineffective" to engage the provisions of s 97(1)(b) of the EPA Act where, as occurred here, the consent authority has not exercised a power under cl 51 of the Regulation to reject the application. That conclusion is supported by the decisions in the decided cases to which I have earlier referred in which it has been held that the requirement imposed, initially by the EPA Act and later by the Regulation, for the consent of the owner of land to be included in the development application, is a requirement that may be satisfied at any time prior to determination of that development application. 72While I accept that such a requirement has a different consequence in the context of processing and determining a development application from that which pertains in respect of an environmental impact statement, the reasoning by which those decisions have been reached may logically be applied to the present circumstance. The primary function of an environmental impact statement is to serve as a "tool", enabling the consent authority better to assess and determine the development application to which it relates (Cranky Rock Road at [83]). 73Providing an environmental impact statement in sufficient time to enable the requirements of s 79 of the EPA Act to be observed involves the undertaking of an administrative step which, for reasons earlier noted, does not detract from the principle presently being considered. The critical time for both landowners consent and an environmental impact statement to be available to a consent authority is the time of determination of the application, with the qualification that such a determination could not be made unless the environmental impact statement has been made available to the consent authority or the Court, exercising the functions of the consent authority, to enable the process of public exhibition to have been undertaken. Authority supports extension of the principle determined in the landowner's consent cases to circumstances beyond the absence of such a consent prior to determination of a development application (Currey v Sutherland Shire Council [2002] NSWLEC 195 at [42]). 74In arriving at the conclusion I have expressed, to the effect that Ironlaw's appeal had properly engaged the provisions of s 82(1) of the EPA Act, it is necessary to notice the decision of this Court in Building Recyclers Investments Pty Ltd v Marrickville Council [2003] NSWLEC 331; (2003) 131 LGERA 413. In that case, the applicant company had sought development consent to operate a materials recovery facility. The application was refused by the respondent council (at [3]). Following that refusal, the company appealed to this Court pursuant to s 97(1)(a) of the EPA Act. After commencement of the appeal, the respondent council contended for the first time that the development proposed was designated development. No environmental impact statement had been prepared to accompany the development application. 75The Court acceded to the determination of two preliminary questions, described as "questions of law". The first was whether the development proposed by the applicant company was designated development. Assuming the answer to that question was in the affirmative, the second question posed for determination was whether the Court had jurisdiction to determine the company's appeal in the absence of an environmental impact statement. Having determined the first question in the affirmative, Pain J proceeded to determine the second question. After citing reference to the decisions of the Court of Appeal in Helman and Remath Investments her Honour said (at [24]): "This court cannot therefore consider the development application as if it stands in the council's shoes under s 39(2) because there is no determination by the council pursuant to which an appeal under s 97 can be lodged in the court." 76Her Honour continued at [25]: "In this case the development application lodged by the applicant was not accompanied by an EIS and, accordingly, was not valid. I do not consider there is a valid decision of the council to grant development consent against which the applicant can appeal. Therefore the court does not have jurisdiction to determine this appeal." 77The only other matter to which her Honour adverted in determining the second question was the perceived practical difficulty confronting the Court in receiving an environmental impact statement and "overseeing the necessary public notification processes required by the EP&A Act" (at [26]). As appears from the judgment, her Honour's reasons for addressing the second question in the manner in which she did, reflected and were responsive to the terms in which submissions were made to her on behalf of the parties. 78In my opinion, the decision in Building Recyclers can be distinguished and does not impinge upon the determination to be made in the present case. First, it is important to record that her Honour was not there called upon to consider, as I am here, the provisions of cl 113(2) of the Regulation and whether the development application was "ineffective" for the purpose of engaging the provisions of s 82(1) of the EPA Act. Second and of equal significance is the fact that at the time at which her Honour was required to decide that matter, there was no provision equivalent to the present cl 51(1) of the Regulation entitling the consent authority to reject a development application for designated development within 14 days of its receipt if the application was not accompanied by an environmental impact statement. As will be apparent from reasons already stated, I have considered the provisions of that clause to be a significant component of the legislative and regulatory scheme directed to the issue presently being considered. 79Neither the submissions recorded by her Honour in Building Recyclers nor the terms of her judgment discussed the reasoning in Helman or Remath Investments nor, more particularly, the legislative provisions under consideration in Remath Investments upon which the decision there made was founded. That observation has significance because the basis upon which the development application there being considered was described by her Honour at [25] as "not valid" is not disclosed. Certainly, none of the judgments by members of the Court of Appeal in either Helman or Remath Investments had so described the development application (as distinct from the determination made in response to that application): indeed, the observation of Stein JA in Remath Investments at [14] to which I have earlier referred was to the contrary. 80In any event and despite the Council's statement of contentions, Mr Galasso has not submitted that the present development application is invalid. 81For the reasons that I have stated, I am satisfied, having regard to the present legislative and regulatory regime, that the development application is valid and was effective to found an entitlement to appeal under s 97(1)(b) of the EPA Act when filed with the Court on 7 September 2012.

Ironlaw's alternate submission: an order nunc pro tunc for commencement of the appeal 82In light of my decision that Ironlaw's appeal is competent to proceed, it is strictly unnecessary to determine its alternate submission for an order nunc pro tunc to enable the appeal to proceed. However, against the possibility that I am in error in determining the first issue in favour of Ironlaw, it is appropriate to make brief observations as to its alternate ground by which it seeks to sustain the continuance of its present appeal. 83On behalf of the Council, Mr Galasso accepts that Ironlaw's development application was "made" on 5 February 2013 when the EIS was provided to the Council. Subject to the operation of the "stop-the-clock" provisions found in cll 107-110 of the Regulation, the deemed refusal period for the purpose of s 97(1)(b) of the EPA Act would commence to run from that time. 84Assuming time runs from 5 February last, the parties accept that the 60 day deemed refusal period stated in cl 113(1) of the Regulation must be extended for the purpose of the calculation. By cl 107 of the Regulation, neither the date of receipt of the application nor the following day is to be counted in that period. 85Further, the assessment period stopped running on 13 February when the Council required further information from Ironlaw which resulted in the submission of the amended EIS on 19 February. The assessment period did not then commence to run again until 20 February: cl 109. 86The assessment period ceased to run once again on 22 March when the Council notified Ironlaw of the letter dated 21 March received from RMS and to which I have referred at [21]. Time did not commence to run thereafter until after 30 days from that date: cl 110. 87Having regard to the operation of the "stop-the-clock" provisions, there is a difference between the parties as to precisely when the entitlement to commence the appeal under s 97(1)(b) would arise. It is unnecessary to resolve that debate, given the Council's contention that the deemed refusal period elapsed on 19 May 2013, that being four days later than the date for which Ironlaw contended. Clearly, time has now passed such that the provisions of s 82(1) of the EPA Act would be engaged to found any appeal now commenced. 88However, the critical issue between the parties is whether the Court has power to make the order sought such that the appeal filed on 7 September 2012 is taken to have been commenced on 20 May 2013. Ironlaw contends that there are two bases upon which the Court could so order. First, it submits that the "premature" lodgement of its Class 1 application on 7 September 2012 may be cured by regarding the Application as having been made at the date of determination of the Council's notice of motion. Second, it submits that the Court could, in any event, do so by applying the provisions of s 23 of the Land and Environment Court Act which provides: "23 Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate." 89The Council resists Ironlaw's alternate submission, essentially on the basis that an order of the kind sought could only be made if the absence of an environmental impact statement at the time at which the appeal was commenced was seen as a procedural rather than a substantive requirement. As the need for an environmental impact statement to accompany the present development application is a substantive requirement, the Court lacked jurisdiction and no retrospective order can cure that position. Reference was made to the observations of Beazley JA (as her Honour then was) in Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 290 ALR 348 at [15] in support of that proposition. However, the judgments of the Court in that case indicate that the determination as to whether a statutory provision has the effect of expressing a condition precedent to the exercise of jurisdiction requires close analysis of the legislative provision in question. So much is made clear by the judgments of McColl JA at [92] and Sackville AJA at [100]. 90In support of its submission, Ironlaw relies upon the decision of Lloyd J in Currey v Sutherland Shire Council. His Honour was there considering a challenge to the validity of a development consent that had been granted by the respondent council. One of the grounds upon which the validity of the consent was challenged was that at the time at which the development application was made the subdivision proposed by the application was prohibited by a provision of the environmental planning instrument. After the development application had been lodged, but prior to determination by the council, the planning instrument was amended so as to make the subdivision sought permissible with consent. 91Lloyd J addressed this ground of challenge by analogy to the provisions of the EPA Act and Regulation, as then in force, requiring the provision of owner's consent where a development application had been lodged without that consent being provided to the consent authority. After referring to the principle earlier discussed that such a consent could be provided at any time prior to determination of the application, his Honour said, at [42]: "This suggests that whilst the requirement is mandatory, it is nevertheless procedural. Applying, by analogy, the same reasoning to the present case, there is nothing to suggest that the development application is not valid if, during the course of its consideration by the council, the suggested invalidity is cured before it is determined. It seems to me that ss 77 and 78 of the EP&A Act are procedural." 92His Honour later continued in the same paragraph: "Finally, it seems to me that if the provisions of the EP&A Act upon which [counsel] relies are procedural, any defect or irregularity may be cured by regarding the development application as having been made nunc pro tunc (see Emanuele v Australian Securities Commission (1997) 188 CLR 114). This would have the effect that when cl 25(3) of the 1993 LEP was made, the development application, if not originally valid, is to be then regarded as valid so as to have the same legal force and effect as if it had been validly made on 25 February 2000." 93An appeal from his Honour's decision was dismissed by the Court of Appeal (Currey v Sutherland Shire Council [2003] NSWCA 300; (2003) 129 LGERA 223. The judgment of the Court was delivered by Spigelman CJ (Sheller JA and Foster AJA agreeing) who quoted with approval at [33] those matters that I have extracted from [42] of the judgment by Lloyd J. 94While noting the force of these observations, it is necessary to observe that they do not relate directly to the question that I am asked to determine. It must be remembered that I am addressing the present question on the premise that my determination in favour of Ironlaw on its primary contention is incorrect. On that premise, I am required to determine whether there is power in the Court to make an order to the effect that proceedings are within jurisdiction by reason of events that have occurred since those proceedings were commenced, notwithstanding that at the time of commencement of the proceedings, the Court's jurisdiction was not lawfully engaged. To state the question in that manner does, to my mind, strongly suggest the answer to it, namely that there is no such power able to be exercised. 95Section 23 of the Court Act would not, in terms, provide that power as the premise for its exercise is that the Court is vested with jurisdiction thereby entitling it to make an order in the proceedings. In the present context, the section merely begs the question required to be answered. 96This Court is a statutory Court. It has no power to entertain proceedings other than those in respect of which it is granted jurisdiction by statute. Its jurisdiction to consider and determine a development application lodged with a consent authority under the EPA Act is, relevantly, dependent upon the provisions of s 97(1)(b) of that Act, together with those other provisions of the Act and Regulation that informed the operation of that section. If, contrary to the decision I have earlier expressed, there was no application to the Council that engaged the provisions of s 82(1) of the EPA Act, no entitlement to appeal to this Court is to be found otherwise. In that sense, the proper exercise of power under s 97(1)(b) is a "gateway" provision that renders inapplicable to the exercise of jurisdiction those observations of Lloyd J and their endorsement by Spigelman CJ in Currey. 97Once it is determined that the Court lacked jurisdiction at the time at which proceedings were commenced, subject only to any legislative saving provision (of which there is none), the only order that the Court has power to make is to dismiss the appeal. Accordingly, I would not uphold Ironlaw's alternate ground for sustaining the currency of the present appeal proceedings.

Orders 98For reasons earlier expressed, I have determined that the appeal filed by Ironlaw on 7 September 2012 may be continued as a current appeal. At the time of filing that appeal, there was a development application lodged with the Council that had lawfully engaged the provisions of s 97(1)(b) of the EPA Act in that the application was deemed to have been refused by operation of s 82(1) of that Act. Accordingly, the Council's notice of motion will be dismissed. 99As a consequence of this decision, it will be necessary for the matter to be referred to the Registrar's List so that directions for the further conduct of the proceedings can be given. These directions will include a requirement that objectors be notified pursuant to s 97A of the EPA Act. 100The orders that I make are as follows: (1)The respondent's notice of motion filed on 1 February 2013 is dismissed. (2)Costs reserved. (3)List the matter for further directions before the Registrar on Friday 13 September 2013. (4)Exhibit A may be returned.

Amendments 11 September 2013 - Second sentence amended to correct grammar Amended paragraphs: 50 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. Decision last updated: 11 September 2013