Ku-ring-gai Council v Bunnings Properties Pty Ltd [2017] NSWLEC 16 | Case summary

Submissions

Bunnings argues that the Court lacks jurisdiction to hear the Council's s 56A appeal so that the appeal proceedings should be summarily dismissed, effectively relying on r 13.4(1)(b) of the UCPR, namely no reasonable cause of action disclosed. Bunnings argues that there is no decision for the purposes of s 56A of the Court Act to appeal against, relying on the reasoning in RES Southern Cross Pty Ltd v Minister for Planning and Anor [2008] NSWLEC 332; (2008) 166 LGERA 116 at [16]-[19]. No decision has been made by the Commissioner which affects his final determination of the Class 1 appeal. At [106] of the interim findings judgment the Commissioner stated that if amended plans were filed it did not follow that approval would be granted. Pittwater Council v Moore Development Group Pty Ltd & Anor [2004] NSWCA 278 establishes that there is no right of appeal from an interlocutory order which does not affect the final decision in the proceedings. A right of appeal under s 56A only arises if findings can be characterised as a decision of the Court within the meaning of s 56A.
The Council submits that a decision and order as referred to in s 56A has been made. An appeal under s 56A in relation to an interlocutory order is permitted as recognised in Walfertan Processors Pty Ltd v Upper Hunter Shire Council (No 3 - Joinder) [2010] NSWLEC 28 at [16]. The amended plans decision and consequent orders on 13 December 2015 was a crystallisation of the interim findings decision. The amended plans decision was an operative step and an order for the purposes of s 56A.

Finding

In Walfertan, decided after RES Southern Cross, I found that an interlocutory decision or order could be the subject of a s 56A appeal. There was no difficulty in that case in identifying the decision or order the focus of the appeal. At issue was whether interlocutory decisions or orders could be appealed under s 56A. The issue in this matter is different being whether there is an (interlocutory) decision or order which can be the subject of a s 56A appeal. That is precisely the issue that arose in RES Southern Cross.
In RES Southern Cross the Court considered whether a general proposal in the judgment of two commissioners that the applicant pay for a new noise monitoring regime with an opportunity for the parties to consider and settle an appropriate monitoring regime was an appellable decision. Biscoe J held it was not as the proposed condition was not final, operative or determinative. At [16]-[19] Biscoe J addressing the context before him held: [16] The meaning of "decision" in s 56A must be determined by reference to that section's text, scope and purpose. Clearly, in s 56A a "decision" means something other than an order, for an appeal lies both from an order and a decision. A "decision" in subs (1) may be contrasted with "determination" of "the matter" in subs (2), which suggests that a decision may relate to a specific aspect of the whole matter. A decision, in my view, may be found in a judgment prior to an order being made. A s 56A "decision", in my opinion, includes a decision for which provision is made under a statute which brings proceedings within Class 1, 2 or 3 of the court's jurisdiction. The Land and Environment Court Act gives Class 1 jurisdiction to the court in respect of, among other things, appeals against refusals to grant development consent and applications to modify a development consent granted by the court: s 17(d). On such an application to modify a development consent granted by the court, just as on an appeal against refusal to grant development consent, the court is empowered to grant approval unconditionally or conditionally, or to refuse the application: Environmental Planning and Assessment Act, ss 80, 96; 1643 Pittwater Rd Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [41], [52], per McClellan J. The imposition of a specific condition, as well as a refusal to impose a specific condition, is readily characterised as a decision: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 390 per Toohey and Gaudron JJ. [17] What are the characteristics of a "decision" within the meaning of s 56A? In Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; (2004) 60 NSWLR 585 at [109]-[113] Spigelman CJ held (Mason P and Handley JA agreeing at 597): The word "decision" is of a protean character and takes its colour from its context. Cases interpreting the word in other statutory contexts must be treated with care. Nevertheless they do provide some guidance. As Deane J said in Director-General of Social Services v Chaney (1980) 47 FLR 80 at 100: In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word "decision" may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word "decision" has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate (see, for example, Registrar of Workers' Compensation Commission (NSW) v FAI Insurances Ltd [1977] 1 NSWLR 422] or be limited to referring only to a determination which effectively disposes of the matter in hand (see, for example, Winter v Winter [ [1933] NZLR 289 at 295] and Penniel v Driffill [ [1980] WAR 30 at 32]).' This passage was referred to with approval in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335, per Mason CJ, with whom Brennan J and Deane J relevantly agreed. Mason CJ went on (at 335): In the context of judicial proceedings, the Privy Council has accepted that "the natural, obvious and prima-facie meaning of the word "decision" is decision of the suit by the court": see Rajah Tasadduq Rasul Khan v Manik Chand [(1902) LR 30 Ind App 35 at 39]; The Commonwealth v Bank of NSW [ (1949) 79 CLR 497 at 625]. But here the relevant context is not that of a decision reached in curial or judicial proceedings, so that the meaning must be determined by reference to the text, scope and purpose of the statute itself." Australian Broadcasting Tribunal v Bond was concerned with the construction of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The holding in that case was that the word "decision" meant "an ultimate or operative determination" (at 338; see also at 375-376, per Toohey J and Gaudron J). In other contexts also the word has been confined to a final order or determination. (See, for example, Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720; Bromley v Housing Commission of NSW (1985) 3 NSWLR 407;) Sometimes the word has been found to extend to interlocutory decisions which effectively resolve a substantive issue, even if not finally dispositive of the proceedings. (See, for example, Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501.) In the present case no interlocutory or other decision has been made. There has been no operative step in the proceedings and no order. I am unaware of any judgment in which the word "decision" has been found to apply in the absence of something in the nature of an operative step or order. [18] Section 5 of the Administrative Decision (Judicial Review) Act 1977 (Cth) authorises the judicial review of a "decision" to which the Act applies. That "will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration": Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337 per Mason CJ (Brennan and Deane JJ agreeing at 365 and 369 respectively). [19] In my opinion, under s 56A a decision must be final or operative and determinative in a practical sense of an issue falling for consideration, and in terms that leave no doubt as to the effect of the order that should be made to give effect to the decision, even if the precise terms of the order may be a matter of drafting preference. If that were not so, there could be an appeal from a "decision" followed by an appeal from a later subsuming order which differs substantively. The preferable course, which avoids this whole question, is for orders to be made, where practicable, before a s 56A appeal is instituted.
At [16] in RES Southern Cross Biscoe J helpfully considers the Court's jurisdiction in Class 1 proceedings to determine development applications by refusal or the granting of development consent conditionally or otherwise. Biscoe J identified the power of the Court to impose conditions as constituting a decision within the meaning identified in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. The authorities referred to by Biscoe J emphasise that the nature of a decision is to be determined from its context. Applying the authorities of Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80 referred to approvingly by the High Court in Australian Broadcasting Tribunal v Bond a decision requires an adjudication on a matter that is substantive, even if not finally dispositive of the proceedings. Biscoe J's conclusion in [19] that a decision must be final or operative and determinative in a practical sense is a useful lens through which to consider this matter.
The Commissioner was determining a merits appeal in Class 1 proceedings. The Court's powers in sub-appeals were identified in RES Southern Cross in [16]. In the interim findings judgment, the Commissioner held at [104] that he was not satisfied that the proposed development was acceptable in the form presented to the Court. In [104]-[106], [110] he stated: Findings 104. In considering the different evidence from the experts and with the benefit of a site inspection, I am not satisfied that the proposed development is acceptable in the form presented to the Court. That is not to say that a "Hardware and building supplies", in some form, is not capable of being constructed on the site… 105 During closing submissions, Mr Galasso sought, in the event that the Court did not find the proposed plans acceptable, to be given the opportunity to address the concerns raised by the council, including the breach of the 20 m setback to the Pacific Highway and Ryde Road and the design quality of the building, with further plans. I propose to take up this offer principally because the matter of the demolition of the former 3M building has been found in the applicants favour and Mr Smith, the applicant's architect submitted additional plans that sought to address the concerns of the council over the appearance of the building's functional form (Exhibit J). While Ms Morrish, the council's architect and urban designer made a genuine attempt to address the amended designs (and also provided her own response with photos of "big box" developments that provided added architectural treatment), I accept that it was unreasonable to expect any valuable response particularly when other important matters, such as the breach of the 20 m setback were still contemplated by the applicant. 106 In coming to this conclusion, it does not follow that approval will be granted if amended plans are provided… … 110 If the applicant is prepared to provide additional drawings, the future progress of the matter will be discussed when these findings are handed down. Alternatively, if the applicant does not wish to provide additional drawings; the appeal will be dismissed.
The Commissioner made no orders at the conclusion of the interim findings judgment, the last paragraph of which was [110]. He left open the possibility of Bunnings filing amended plans. He did not dismiss the appeal at that stage.
The material finding of the Commissioner in the interim findings judgment was in [104] to the effect that he was not satisfied that the proposed development was acceptable in the form before the Court. That finding is not the subject of the s 56A appeal. I agree with Bunnings' submissions that the statements in par [110] of the interim findings judgment providing an option to Bunnings to file additional plans do not constitute a decision within the meaning of s 56A because the statements are not a finding which is final, operative or determinative in a practical sense of an issue falling for consideration. To the extent final might be understood to exclude interlocutory I do not intend that the word have that meaning.
The parties agree that Bunnings did seek to rely on amended plans and was permitted to do so by the Commissioner on 5 December 2016 when an order to that effect was made. I do not have before me the written reasons or orders made by the Commissioner but that does not matter given the agreement of the parties that such an order was made.
The order made by the Commissioner that Bunnings is able to rely on amended plans is not operative in the sense identified in RES Southern Cross at [19]. As the Commissioner identified in [106] in the interim findings judgment the lodging of amended plans does not give rise to any particular outcome in the appeal.
The Council submitted that the interim findings judgment and the order on 5 December 2016 were connected in that the later order arose out of [110] of the interim findings judgment. Whether the two are connected does not provide any greater weight to the Council's submissions.
For completeness I refer to other authorities referred to by the parties which I have not found to be of great assistance in the particular circumstances before me. In Pittwater Council v Moore Development Group the Court of Appeal was addressing a different circumstance in holding that no right to appeal arose from an interlocutory order which did not affect the final decision in the proceedings adversely to the appellant. By the time of that appeal hearing the substantive Class 1 proceedings had been resolved in the appellant council's favour so that the Court of Appeal held there was no utility in hearing the appeal on the interlocutory matter (existence of existing use rights) as no issue estoppel arose for other proceedings.
Bunnings referred to Blue Mountains City Council v Hudson (1985) 56 LGRA 360 and Bromley v Housing Commission of NSW (1985) 3 NSWLR 407 which predated amendments made to s 57 of the Court Act, with which the judgments were concerned. Section 57 regulates appeals to the Court of Appeal from this Court. As s 57 presently stands, under subs (4) appeals in relation to interlocutory decisions are permissible only if leave is granted. Given the difference in wording between ss 57 and 56A those authorities provide little assistance in the precise circumstances of this case.
The orders for summary dismissal of the Council's s 56A appeal sought in the Bunnings notice of motion dated 20 February 2017 should be made.

Ku-ring-gai Council v Bunnings Properties Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (16)

Cited By (2)