Ku-ring-gai Council v Bunnings Properties Pty Ltd

Judgment (22 paragraphs)

[1]

Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Gordon v Lever [2017] NSWSC 1282 Janlz Constructions Pty Ltd v Randwick Municipal Council [1976] 2 NSWLR 427 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19 Ku-ring-gai Council v Bunnings Properties Pty Ltd [2017] NSWLEC 16 Luton v Lessels (2002) 210 CLR 333; [2002] HCA 13 Luxe Manly Pty Ltd v Northern Beaches Council [2016] NSWLEC 156 Marinkovic v Rockdale City Council (2007) 151 LGERA 385; [2007] NSWLEC 71 Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373; [2006] NSWLEC 146 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; [1980] FCA 85 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200 Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630 North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 NSW v Kable (2013) 252 CLR 118; [2013] HCA 26 Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90 Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320; [2010] HCA 24 Port Stephens Council v Sansom [2007] NSWCA 299; 156 LGERA 125 Powell v Streatham Manor Nursing Home [1935] AC 243 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; [1991] HCA 58 R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Barrett (1945) 70 CLR 141; [1945] HCA 50 R v Quinn; Ex Parte Consolidated Foods Corporation (1977) 138 CLR 1; [1977] HCA 62 R v Spicer; Ex Parte Australian Builder's Labourers' Federation (1957) 100 CLR 277; [1957] HCA 81 R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8 Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155 Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179 Re Macks; Ex Parte Saint (2000) 204 CLR 158; [2000] HCA 62 Residents Against Improper Development Inc. v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; [2006] NSWCA 323 Riordans Consulting Surveyors Pty Ltd v Lismore City Council [2010] NSWLEC 1333 Riverstone Parade v Blacktown City Council [2015] NSWLEC 137 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36 Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 Wong v R (2001) 207 CLR 584; [2001] HCA 64 Texts Cited: P Cane, "Merits Review and Judicial Review - The AAT as Trojan Horse" (2000) 28 Federal Law Review 220 Category: Principal judgment Parties: Ku-ring-gai Council (Applicant) Bunnings Properties Pty Ltd (Respondent) Representation: Counsel: Mr G Kennett SC, Mr C Lenehan (Applicant) Mr J K Kirk SC, Ms Z C Heger (Respondent)

[2]

Solicitors: Sparke Helmore (Applicant) Allens (Respondent) File Number(s): 2018/81252 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Civil Citation: [2018] NSWLEC 19 Date of Decision: 28 February 2018 Before: Sheahan J File Number(s): 2017/206960

[3]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] On 8 April 2015, Bunnings Properties Pty Ltd ("Bunnings") lodged a development application under the Environmental Planning and Assessment Act 1979 ("EPA Act") which was refused by Ku-ring-gai Council ("Council"). Bunnings appealed to the Land and Environment Court ("the LEC") under the then s 97 now s 8.7 of the EPA Act against the Council's refusal. The appeal was heard in the Class 1 jurisdiction of the LEC by Brown C. In his first judgment of 20 July 2016 the Commissioner found that he was not satisfied that the proposed development was acceptable in the form submitted, but allowed Bunnings to amend the application in response to the issues identified by the Commissioner: Bunnings Properties Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1658. Bunnings was granted leave to rely on amended plans and a second hearing was held before the Commissioner. In his further judgment of 16 May 2017, the Commissioner found that the amended development application was acceptable and granted development consent subject to conditions. The Council appealed against the Commissioner's decision under s 56A of the Land and Environment Court Act 1979 ("LEC Act"), on questions of law. The Council raised two primary issues. First, the Commissioner failed to exercise jurisdiction by not disposing of the appeal and instead adopting an 'amber light approach' by allowing Bunnings to amend the development application and determining to grant consent to that amended application. Second, the Commissioner's decision was illogical and legally unreasonably as it permitted the removal of a tree of high significance. On 28 February 2018 a Judge of the LEC (Sheahan J) dismissed the appeal. The Council sought leave to appeal from the LEC under s 57(4) of the LEC Act against the decision and orders of the primary judge made on the s 56A appeal. The issues raised on appeal were substantially the same as those in the s 56A appeal. The appellants submitted that the jurisdiction conferred on the LEC to determine the appeal involved the exercise of judicial power which was subject to the principle of finality and principle against giving advisory opinions. By indicating that although the development application was currently unacceptable it could be approved if changes were made, the Commissioner had infringed those principles and adopted the 'amber light approach'. The Commissioner's approach was therefore outside of power. The question for the Court was whether the primary judge had erred in law by not finding that the Commissioner had acted outside of power in one of two ways raised: (i) Whether the Commissioner acted outside of power by not finally disposing of the appeal in the first judgment and instead allowing Bunnings to amend the development application and then granting consent to the amended development application; and (ii) Whether the Commissioner's decision was legally unreasonable by allowing the removal of a tree of high significance. The Court dismissed the appeal and held: In relation to (i): (per Preston CJ of LEC, Beazley P agreeing) (1) Contrary to the appellant's submissions concerning the exercise of judicial power, the proper question for the Court was whether the Commissioner's conduct in relation to the two judgments was within or outside of the functions conferred on the LEC by the EPA Act and the LEC Act: [139], [141]. (2) The Commissioner did not, in his first judgment, exercise the power under s 80 now s 4.16 of the EPA Act to determine the development application the subject of the appeal: [147]. The power to determine the development application was not exercised until the Commissioner granted the consent to the amended application in his further judgment of 16 May 2017: [148]. The decision to order and grant consent was within the power of s 80 now s 4.16 of the EPA Act: [149]. (3) The appeal under s 97 now s 8.7 of the EPA Act required the Commissioner to undertake a merits review of the decision which was to be conducted by way of hearing de novo: [173]. The Commissioner was not required to conclude the appeal following the first judgment: [173]. The Commissioner did not exceed the power conferred to hear and dispose of the appeal by not finally determining the development application and disposing of the appeal in the first judgment: [174]. (per Basten JA, dissenting) (4) The relevant criteria for determining the bounds of the power conferred on the Commissioner depended on the statutory role of the consent authority and relevant provisions of the EPA Act: [71]. (5) The Commissioner exceeded the scope of his statutory authority: [74]. The LEC's power to permit amendments to development applications was constrained by the nature of the jurisdiction as defined by the EPA Act: [61]. The LEC could not grant an adjournment to amend a development application after the hearing had been completed and a finding made that the application should be refused: [72], [73]. In relation to (ii): (per Preston CJ of LEC, Beazley P agreeing) (6) The Commissioner's decision to grant consent, thereby approving the removal of the significant tree, was not illogical or legally unreasonably: [225]. (per Basten JA) (7) As the appeal should be allowed on the first ground, it was not necessary to consider the second ground of appeal: [77].

[5]

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA and the separate reasons of Preston CJ of LEC. Their Honours both consider that leave to appeal should be granted, but have come to different conclusions as to whether the appellant, Ku-ring-gai Council, should succeed in its appeal or whether the appeal should be dismissed.
I agree with their Honours that leave to appeal should be granted. I also agree with both their Honours that the question on the appeal is not whether the Commissioner in the Land and Environment Court was exercising judicial or administrative power. Rather, as their Honours' separate reasons indicate, the resolution of the appeal is a matter of construction of the relevant statutory regime. For the brief reasons which follow, I agree with Preston CJ of LEC that the appeal should be dismissed.
The grant of development consent in this matter followed the Commissioner's consideration of a development application made by the respondent, Bunnings Properties Pty Ltd (Bunnings) in the form in which it was lodged with Ku-ring-gai Council. Having come to the view that he was "not satisfied that the proposed development is acceptable in the form presented to the Court", the Commissioner adjourned the matter to permit Bunnings to file "additional drawings", if it wished to do so, addressing the matters the Commissioner identified as not being satisfactory in the existing plans. Bunnings amended the plans and the Commissioner granted development consent matter on the basis of those amended plans.
Preston CJ of LEC, at [87], has identified the question in issue on the appeal as being whether the Commissioner, in granting consent to the amended development application made by Bunnings, acted outside power.
Basten JA considers, at [53], that the question in issue is: "… whether, having concluded that consent should not be granted to a development application, the developer should be permitted to change the proposed development to one which might attract a favourable decision from the Court."
Expressed in those terms, his Honour's identification of the issue raises more directly for consideration whether the so-called 'amber light' approach to appeals under the Environmental Planning and Assessment Act 1979 (NSW), s 97 (now s 8.7) is authorised by statute.

[6]

Procedural background

On 8 April 2015 the respondent lodged a development application with Ku‑ring‑gai Council in relation to a conspicuous site on the corner of the Pacific Highway and Ryde Road, Pymble. The application not having been determined within the time permitted under the regulations, there was deemed to have been a refusal of consent. The respondent exercised its right to appeal to the Land and Environment Court from the deemed refusal.
The appeal was heard by Commissioner Brown in April 2016. In a decision delivered on 20 July 2016, the Commissioner said he was "not satisfied that the proposed development is acceptable in the form presented to the Court", but, rather than reject the appeal, adjourned the matter to allow the respondent an opportunity to file an amended development application, which would then be addressed at a future hearing. [1]
The Council sought to appeal from that ruling, unsuccessfully. [2] When the matter returned before Commissioner Brown, there was a further hearing which resulted in a decision on 16 May 2017 allowing the appeal and granting consent. [3] The Council appealed from that decision, first, unsuccessfully, to a judge of the Land and Environment Court, [4] and from that judgment to this Court. The primary ground of appeal was that the process had miscarried in July 2016. The Council submitted that once the Commissioner found that the development application before the Court should not be granted, he should have dismissed the appeal.
The appeal from the Commissioner to Sheahan J in the Land and Environment Court was limited to an appeal from an order or decision made by a Commissioner "on a question of law": Land and Environment Court Act 1979 (NSW) ("Court Act"), s 56A(1). The appeal from the judgment of Sheahan J to this Court was also limited to a decision of the judge on a question of law, and subject to obtaining leave. [5] The relevant law was that in force as at the date of the Commissioner's final decision, on 16 May 2017. (On 1 March 2018, the provisions of the Environmental Planning and Assessment Act 1979 (NSW) ("Planning Act") were renumbered, and some provisions taken in from the Court Act; those amendments have no relevance in the present case.)

[7]

The "amber light" approach

The approach adopted by the Commissioner in July 2016 reflected that which has been adopted in a number of cases in the Land and Environment Court. It was succinctly described by Moore SC in The Benevolent Society v Waverley Council [6] in the following terms: "[66] … This approach means that the Court not only considers the question of whether the proposal should be approved in the form that is before the Court but also [asks] whether the proposal is capable of approval, with specified modifications imposed by the Court, within the scope of the present proceedings."
In other cases conditions have been imposed upon the adoption of such an approach. An example is the reference in an earlier decision of Moore SC in Ali v Liverpool City Council [7] to "minor and identifiable amendments consistent with the application before the Court". That terminology may be intended to indicate a limit on what can properly be seen, in the language of The Benevolent Society, as "within the scope of the present proceedings". There is, however, a real question as to the basis and scope of that qualification.
In the present case, Sheahan J accepted that the "amber light" approach "has no statutory basis", but had been "established and circumscribed by a series of decisions of the Court." [8] Acceptance that it "has no statutory basis" must cast doubt on its validity as a procedure adopted in a statutory court of limited jurisdiction.
The submissions in this Court (and before the primary judge) had as their focus the characterisation of the exercise of power in Class 1 jurisdiction of the Land and Environment Court as either judicial or administrative. A similar analysis may be found in the reasons of Spigelman CJ in Port Stephens Council v Sansom. [9] The purpose of reliance upon the distinction was that if the power of the Commissioner could properly be characterised as "judicial" reliance could be placed on the "principle of finality" and the prohibition on giving "advisory opinions", as grounds for challenging the impugned procedure.
While there are certainly characteristics which allow the identification of decision-making powers as "judicial" or "administrative", there is much variety within those characterisations. Indeed, fitting a particular function within such a dichotomy may be unhelpful unless it is required by, for example, a constitutional separation of powers. In the present case, greater assistance is to be found in the specific nature of the exercise being undertaken by the Commissioner, as identified by reference to the terms of the Planning Act and the Court Act. This analysis properly has regard to both the institutional nature of the Council as a consent authority, and of the Court hearing an "appeal" from a decision of the Council.

[8]

Statutory scheme

The objects of the Planning Act are well-understood and need not be explained. They include encouraging "the promotion and co-ordination of the orderly and economic use and development of land", "the protection of the environment", "the sharing of the responsibility for environmental planning between the different levels of government" and, importantly, the provision of "increased opportunity for public involvement and participation in environmental planning and assessment." [10]
The statutory context is provided by a complex network of inter-related provisions. It is necessary to identify those provisions. Where development may only be carried out with development consent, it can only be carried out with and in accordance with the consent: Planning Act, s 76A(1). The consent must be obtained from the relevant "consent authority": s 76A(2)(a). A person may, in accordance with the regulations, apply to a consent authority for consent to carry out a specified development: s 78A(1).
There are various provisions requiring consultation or public exhibition of development applications; these give effect to the object noted above of providing "increased opportunity for public involvement and participation in environmental planning and assessment." Relevantly for the present case, s 79A of the Planning Act provided: 79A Public participation - advertised development and other notifiable development (1) Notice of a development application for consent to carry out advertised development is to be given in accordance with this Act, the regulations, the relevant environmental planning instrument and any relevant development control plan. (2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.
Section 97(1) of the Planning Act provided that "[a]n 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 six months after … the date on which that application is taken to have been determined under section 82(1)." It is convenient to note the terms of s 82 as, for reasons which will be noted below, s 82(1) needs to be read in context. 82 Circumstances in which consent taken to have been refused (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. (2) Nothing in subsection (1) prevents a consent authority from determining a development application after the expiration of the relevant period referred to in that subsection, whether on a review under section 82A or otherwise. (3) A determination pursuant to subsection (2) does not, subject to subsection (4), prejudice or affect the continuance or determination of an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made. (4) If a determination pursuant to subsection (2) is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made) withdrawn at any time prior to the determination of that appeal. (5) This section does not apply in respect of a development application if section 97 does not apply to the application.

[9]

Nature of appeal - Class 1 jurisdiction

The determination of the issues in the present case turns upon the proper analysis of the jurisdiction, functions and powers of a Commissioner exercising the Class 1 jurisdiction of the Land and Environment Court. It is convenient to deal with those issues under the following headings: 1. jurisdiction and functions of Commissioner; 2. powers of Commissioner, 3. authorities in Land and Environment Court, and 4. timing of exercise of powers.

[10]

(i) jurisdiction and functions

The jurisdiction of the Commissioner in this case was to "hear and dispose of" an appeal under s 97 of the Planning Act: Court Act, s 17(d). The scope of the Court's function (so described in s 39(2) of the Court Act) was to conduct an appeal "by way of rehearing", pursuant to s 39(3) of the Court Act.
In administrative law terms, that function may be described as "merit review" as contrasted with "judicial review". The dichotomy reflects an imprecise classification between the functions of a tribunal required to make its own findings of fact, draw the relevant inferences and identify the applicable legal principles (merit review), and the functions of a tribunal which is limited to identifying legal error on the part of the primary decision-maker (judicial review).
In the taxonomy of appellate jurisdiction, a distinction is sometimes drawn between an appeal by way of hearing de novo and an appeal by way of rehearing. In each case, there is an underlying assumption that the primary decision-maker is itself a tribunal which has operated on the judicial model of hearing evidence and making findings of fact. Strictly speaking, a de novo hearing is one which repeats that process, although in some circumstances it may be sufficient that the appellate body relies on a transcript of the evidence given before the primary decision-maker. An appeal by way of rehearing is one in which the appellate body is restricted to the transcript of the evidence given below, although it may hear additional evidence. It may depart from the factual findings made by the primary decision-maker, but will generally be constrained in relation to credibility findings, not having heard the witnesses give evidence.
The language of administrative law does not fit precisely with the exercise being undertaken in the Land and Environment Court, as may be seen from the use of the term "merit review" as opposed to "appeal". On the other hand, the primary decision-maker, being the consent authority, does not hold hearings (as would a tribunal), or make findings of fact; nor does it provide a reasoned justification for a particular outcome. Accordingly, the "appeal" to the Court is not an appeal from a similar body.
The significance of the term "appeal" in this context is that it identifies the fact that the primary decision-maker has reached a decision (even a deemed decision) in relation to a particular application. At a level of generality, the Court has no jurisdiction to consider a development application for the first time; it therefore has no jurisdiction to consider a development application other than the one to which the Council refused consent.

[11]

(ii) powers of Court in Class 1 jurisdiction

The relevant issue for present purposes is whether, having concluded that consent should not be granted to a development application, the developer should be permitted to change the proposed development to one which might attract a favourable decision from the Court. However, to state the issue in such absolute terms may be to misconceive the nature of the question. Consistently with the more nuanced approach adopted in the Land and Environment Court, the better course may be to ask whether a particular change is one which cannot be entertained by the Court on an appeal. However, that question could not be answered in those terms by this Court in considering an appeal limited to a question of law. The proper course would be for the Court to identify the relevant criteria by which the power is confined. If those criteria contain factual elements which have not been identified and determined, or evaluative judgments which do not appear in the reasons of the Court, the proper course would be to set aside the decision and remit it to the Court for reconsideration according to law. The first step, however, is to identify the relevant criteria, whichever approach is adopted.
There are five elements of the statutory scheme which indicate that material changes cannot be made to a development application the subject of an appeal. The first is that the appeal itself is conferred on an applicant who is dissatisfied with "the determination of a consent authority with respect to the applicant's development application": Planning Act, s 97(1). Such language would not be satisfied by reference to some different development application.
Secondly, to confer authority on the Court to grant consent to an application which varied from the application which had been the subject of (and was required to be the subject of) public exhibition would, as noted above, thwart the very purpose of the public exhibition.
Thirdly, the language of s 97 (conferring the right of appeal) must operate consistently in the various circumstances in which the section provides a right of appeal. Thus, in addition to the generic right granted under subs (1), it confers a right on an applicant not satisfied "as to a matter", being a specific aspect of a development that is to be carried out in accordance with a condition imposed by the consent (subs 97(2)); or with respect to a matter which must be satisfied before a deferred commencement consent can operate (subs 97(3)). In each case, the conferral of the right of appeal identifies the subject matter of the appeal.

[12]

(iii) authorities in Land and Environment Court

As explained by Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council, [23] amendments to development applications made whilst an appeal was pending in the Court have generally be determined pursuant to cl 55 of the Planning Regulation. For reasons explained above, that provision is not picked up as a "function" or "discretion" of the consent authority, vested in the Court pursuant to s 39(2) of the Court Act. Further, the Court has tended to take a liberal approach to the application of cl 55; [24] whether or not that is appropriate with respect to the exercise of the functions of the consent authority, it is by no means clear that a similar construction should apply if that provision operated on an appeal to the Court. In any event, it would be necessary to construe the relevant power having regard to other provisions in the Planning Act, including ss 82A and 96. As noted above, to concede a broad power to the Court to allow modification of developments the subject of appeals would be anomalous in that it would thwart or undermine the notification obligations imposed on the consent authority.
Section 39(2) of the Court Act should not be understood as picking up a function or discretion of the designated consent authority, without picking up the conditions to its engagement or operation. In the absence of any express power dealing with the manner in which the Court may permit an amendment of a development application the subject of an appeal, it would be legally erroneous to imply a broader power than that conferred on the consent authority. Thus, to the extent that Radray Constructions and other authorities in the Land and Environment Court adopt a broad approach to the Court's powers, they should not be followed.

[13]

(iv) timing of exercise of power

Acknowledging that the Court has a limited power to permit amendments to a development application the subject of an appeal, at the heart of the appellant's case is a challenge to the manner in which that power has been exercised by the Court, both in this case and in earlier matters. Once it is accepted that the Court is not a "consent authority" and does not have all the powers and functions of a consent authority, but only those apposite to hearing and disposing of an appeal, it must follow, on the appellant's case, that the Court should act judicially. It should not conduct an appeal on the basis that, at the conclusion of hearing and submissions, it will, in effect, provide an advice to the applicant as to what it should do to modify its application so as to avoid dismissal of the appeal.
The approach adopted by the Commissioner on 20 July 2016, following three days of hearing, was distilled in the final seven paragraphs of his reasons delivered on that date. They were as follows: "[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 …. While Ms Morrish, the council's architect and urban designer made a genuine attempt to address the amended designs …, 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. DCP 2015 correctly highlights the importance of the Pymble Business Park through its controls in cl 14A.1 …. [107] The site is specifically addressed in cl 14A.5 as a 'landmark site at the corner of Ryde Road and Pacific Highway. This is a visually prominent site with the potential to serve as a memorable marker in this locality'. … [108] In considering the controls in cl 14A, it must be understood that the architectural form will normally reflect its use. In this case, a development application is for a 'hardware and building supplies' establishment and will have a different form to say 'Office premises' but that does not mean that a 'hardware and building supplies' establishment cannot be designed to address the requirements in cl 14A. [109] Based on the evidence, any new design should include: • compliance with the 20 m setback. • comprehensive landscaping of the 20 m setback, • details of signage that are relatively discrete, • the absence of outside storage areas that can be viewed from the public domain, and • an architectural design that provides interest and an attractive appearance from the public domain. [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."

[14]

Conclusions

In the event that the Court upheld ground 1 of the appeal the Council submitted that this Court should set aside the judgment of the primary judge, set aside the orders made by the Commissioner and order that the appeal to the Land and Environment Court be dismissed. That was said to be an appropriate order because there was no other order which the Commissioner could properly have made in the exercise of his function.
That submission should be accepted. The appropriate orders available to a court on an appeal limited to a question of law were addressed by the High Court in Osland v Secretary, Department of Justice [No 2]. [30] French CJ, Gummow and Bell JJ stated: "[20] The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. [31] In that event, the Court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment."
There is no outstanding factual issue or opinion to be addressed. It follows that the orders sought by the Council should be made. It is not necessary to consider the separate ground sought to be raised by the Council, which would have required a remitter to the Commissioner had it been upheld.
I would propose the following orders: 1. Grant leave to appeal from the judgment and orders of Sheahan J of 28 February 2018. 2. Allow the appeal and set aside orders (1) and (2) made on that date. 3. In place of those orders, order that: 1. the Council's appeal from the orders and decision of the Commissioner be allowed; 2. set aside the orders made by the Commissioner on 16 May 2017 allowing the appeal to the Court and granting development consent; 3. in place of the Commissioner's orders, order that the Class 1 application in proceedings 2016/152878 be dismissed. 1. Order that the respondent pay the Council's costs in this Court and before Sheahan J.

[15]

Nature of appeal and outcome Bunnings Properties Pty Ltd (Bunnings) wishes to redevelop a site fronting Bridge St and the Pacific Highway at Pymble. Bunnings lodged a development application under the Environmental Planning and Assessment Act 1979 ("EPA Act") seeking consent to demolish the former 3M commercial building, erect a new building and use the new building for the purpose of hardware and building supplies. Ku-ring-gai Council ("Council") opposed the proposed development for a variety of reasons and refused consent to the development application.

Bunnings appealed to the Land and Environment Court ("the Court") under the then s 97 now s 8.7 of the EPA Act against the Council's refusal of its development application. The appeal was heard by a Commissioner of the Court, Brown C. In his first judgment of 20 July 2016, the Commissioner found that he was not satisfied that the proposed development was acceptable in the form presented to the Court at the first hearing but the Commissioner allowed Bunnings to provide a new design to address the deficiencies identified by the Commissioner: Bunnings Properties Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1658. On 6 December 2016, the Commissioner granted leave to Bunnings to rely on amended plans: Bunnings Properties Pty Ltd v Ku-ring-gai Council (No 4) [2017] NSWLEC 1238 giving reasons for the decision made on 6 December 2016 to allow amended plans.
A second hearing was held before the Commissioner. In his further judgment of 16 May 2017, the Commissioner found that the amended development was acceptable and granted development consent subject to conditions: Bunnings Properties Pty Ltd v Ku-ring-gai Council (No 4) [2017] NSWLEC 1238.
The Council appealed against the decision and orders of the Commissioner to a judge of the court, under s 56A of the Land and Environment Court Act 1979 ("LEC Act"), on questions of law.
Amongst the questions of law that the Council raised on the s 56A appeal were two concerns. First, the Commissioner impermissibly failed to exercise jurisdiction by not disposing of the appeal by determining the development application that was the subject of the proceedings by refusal of consent but instead engaged in the so called amber light approach by allowing Bunnings to amend its development application and then determining the amended development application by the grant of consent. Second, the Commissioner made a decision allowing the removal of a tree of high significance that was illogical and legally unreasonable.

[16]

The alleged constructive failure to exercise jurisdiction

[17]

The Council's argument that the Commissioner acted outside power

The Council contended in the first ground of the appeal that the Commissioner, in not finally disposing of the appeal in the first judgment by determining the development application by refusal of consent and instead allowing Bunnings to amend the development application and then determining the amended development application by the grant of consent, acted outside power. The Council's argument proceeded in the following steps: 1. the jurisdiction conferred on the Court under s 17(d) of the LEC Act to hear and dispose of an appeal under s 97 now 8.7 of the EPA Act involves the exercise of judicial power; 2. the exercise of judicial power is subject to two constraints, being the principle of finality and the principle against giving advisory opinions; 3. the amber light approach inherently infringes these two constraints on the exercise of judicial power; 4. the Commissioner, in exercising the Court's jurisdiction, adopted the "amber light approach"; 5. the Commissioner, by adopting the amber light approach, thereby acted outside power; 6. alternatively to (4), the amber light approach is subject to constraints necessary to ensure that the exercise of the Court's jurisdiction remains within the limits of judicial power; and 7. the Commissioner's approach exceeded these constraints on the amber light approach and the Commissioner thereby acted outside power.
I will elaborate on each of these steps in the Council's argument on the first ground of appeal.
As to the first step, the Council submitted that the jurisdiction conferred on the Court under s 17(d) of the LEC Act to hear and dispose of an appeal under s 97 of the EPA Act involves the exercise of judicial power, rather than administrative power. The Council noted that, by reason of ss 39(4) and (5) and 56 of the LEC Act, the Court disposes of such appeals by making a "decision" which is "final and conclusive". As a court of record, the Court has the power to enforce its own decisions. As such, the Court is able to render a binding, authoritative and curially enforceable judgment regarding the rights to use particular land in particular ways, and independently of the consent of the unsuccessful party. Those matters are usually understood to be critical indicia of an exercise of judicial power, rather than administrative power: see, for example, Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3 at [30], [31] and the authorities there referred to (and note also Burns v Corbett (2018) 92 ALJR 423; [2018] HCA 15 at [27]).

[18]

Bunnings' argument that Commissioner acting within power

Bunnings responded that the Commissioner, in hearing and disposing of the appeal under s 97 now s 8.7 of the EPA Act, was not exercising judicial power, but in any event the Commissioner's decision was consistent with the identified constraints on the exercise of judicial power of the principle of finality and the principle against giving advisory opinions. The Commissioner's approach fell within the broad discretionary powers given to him under the LEC Act and the EPA Act.
Bunnings submitted that there are three features that establish that the function of determining an appeal under s 97 now s 8.7 of the EPA is administrative, not judicial: the nature and purpose of the Class 1 jurisdiction of the Court to which the appeal under s 97 now s 8.7 of the EPA Act is assigned; the procedure in Class 1 appeals; and the qualifications and powers of Commissioners.
As to the nature and purpose of the Class 1 jurisdiction, Bunnings noted that the Court has jurisdiction to "hear and dispose of" certain environmental planning and protection appeals (referred to in the LEC Act as the Court's "Class 1" jurisdiction), including under s 97 now s 8.7 of the EPA Act: s 17(d) of the LEC Act. Under s 97(1) now s 8.7(1) of the EPA Act, 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 six months of the determination or the deemed determination (as to which, see s 82(1) now s 8.11(1) of the EPA Act). Section 39(2) of the LEC Act provides that the Court shall "for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal". The appeal is to be "by way of rehearing, and fresh evidence or evidence in addition to, or substitution for, the evidence given on the making of the decision may be given on the appeal": s 39(3) of the LEC Act. The decision of the Court upon appeal is deemed, where appropriate, "to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly": s 39(5) of the LEC Act. Thus, the Court stands in the shoes of the consent authority (here, the Council), exercises the discretion afresh, and its decision is deemed to be that of the consent authority.

[19]

The Commissioner's conduct was not outside power

The proper question to ask and answer, in order to ascertain whether the Commissioner erred on a question of law in determining the appeal, is whether the Commissioner's conduct in not disposing of the appeal in the first judgment by refusing consent to Bunnings' development application but instead allowing Bunnings to amend the application and then granting consent to the amended application was within or outside the functions conferred on the Court by the EPA Act and the LEC Act.
The Council's argument on the first ground of appeal involved classifying the functions of determining the development application and hearing and disposing of the appeal as involving the exercise of judicial power rather than administrative power, in order to establish that the Commissioner's conduct exceeded the constraints on the exercise of judicial power. However, the Council's argument diverts attention from the functions conferred on the Court by the EPA Act and the LEC Act. The general constraints on the exercise of the functions are to be found in the terms in which the functions are conferred by the statutes, not by classifying the functions as involving the exercise of judicial or administrative power.
I will therefore commence my analysis of the Council's first ground of appeal by addressing the functions under the EPA Act and LEC Act exercised by the Commissioner on the appeal and the question of whether the Commissioner exceeded those functions. I will then address the steps in the Council's argument and explain why they are incorrect.
An appeal under s 97 now 8.7 of the EPA Act is by an applicant for development consent who is dissatisfied with the determination of the consent authority under s 80 now s 4.16 of the EPA Act of the application for development consent. In this case, Bunnings was dissatisfied with the Council's refusal of its development application to carry out the originally proposed development.
Section 97 now s 8.7 of the EPA Act vests jurisdiction in the Court to hear and dispose of appeals under that section: see also s 16(1) of the LEC Act. The Court hears and disposes of appeals under s 97 now s 8.7 of the EPA Act in Class 1 of its jurisdiction: see s 17(d) of the LEC Act.
An appeal under s 97 now s 8.7 of the EPA Act is to be by way of "rehearing": s 39(3) of the LEC Act. The Court is not confined to the material that was before the consent authority when it determined the development application but may receive and consider fresh evidence or evidence in addition to or in substitution for the material that was before the consent authority: s 39(3) of the LEC Act.

[20]

The alleged legally unreasonable decision

The Council's second ground of appeal was confined. The Council contended that the Commissioner's decision to allow the removal of a particular tree on the site, labelled "Tree T135", was legally unreasonable. The Commissioner had found in his first judgment (at [91]) and in his final judgment at (at [87]) that Tree T135, which was a large Blue Gum, "had high significance, good overall health and condition and has visual amenity". The Commissioner noted, however, that the location of Tree T135 "has a considerable impact on any redevelopment of the site". In short, the tree was located within the building envelope of the proposed development. If the development were to proceed as proposed, the tree could not be retained.
The Commissioner continued to say: "While I accept that every endeavor [sic] should be made to retain Tree T135 in any redevelopment of the site, it is not a matter that would warrant the refusal of an application if the tree needed to be removed."
The Council contended that this "perfunctory conclusion" was illogical and legally unreasonable, citing Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200 at [35], [58] and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76].
The Council submitted that the Commissioner embarked on an evaluation of the matters he was required to consider in a manner that was acutely fact dependent - consent should not be refused, the Commissioner held, regardless of whether the tree was required to be removed, if in fact the tree "needed to be removed" (emphasis added). The reasoning adopted by the Commissioner logically required an assessment of that matter (the need for removal): Muggeridge v Minister for Immigration and Border Protection at [55].
The Council submitted that nowhere did the Commissioner consider that matter, which was plainly in issue between the parties. It is not to the point that the Commissioner might otherwise have arrived at the same result by an alternative but untaken path of reasoning or that the Commissioner was not required to evaluate the issues regarding the tree in any particular way: Muggeridge v Minister for Immigration and Border Protection at [55], [57]. Having gone down the path of reasoning that the Commissioner did, it was necessary that there be an intelligible justification, within the reasons he gave, for the decision that he arrived at: Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30 at [82]. There was not.

[21]

Conclusion and orders

The Council has not established that the Commissioner erred on questions of law in the ways raised in the two grounds of appeal or that the primary judge erred in not finding that the Commissioner did so err. In these circumstances, although I consider that leave to appeal against the primary judge's decision should be granted, the appeal should be dismissed.
Bunnings filed a cross-appeal in the event that this Court were to uphold the Council's first ground of appeal. Bunnings sought an order that the money that Bunnings had paid to the Council for costs "thrown away" by the amendment of the development application be repaid to Bunnings. As the Council has not succeeded on its first ground of appeal, Bunnings' cross-appeal does not arise. It should be dismissed.
I propose that the Court should make the following orders: 1. Grant leave to Ku-ring-gai Council to appeal against the decision of Sheahan J of the Land and Environment Court of 28 February 2018. 2. Dismiss the appeal by Ku-ring-gai Council. 3. Dismiss the cross appeal by Bunnings Properties Pty Ltd. 4. Order Ku-ring-gai Council to pay Bunnings Properties Pty Ltd's costs of the proceedings in this Court.

[22]

Endnotes

Bunnings Properties Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1658, pars [104] and [110].
Ku-ring-gai Council v Bunnings Properties Pty Ltd [2017] NSWLEC 16 (Pain J).
Bunnings Properties Pty Ltd v Ku-ring-gai Council (No 4) [2017] NSWLEC 1238.
Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19 ("primary judgment").
Court Act, s 57(1), (4)(c).
[2010] NSWLEC 1082.
[2009] NSWLEC 1327 at [120].
Primary judgment at [61].
[2007] NSWCA 299; 156 LGERA 125.
Planning Act, s 5, objects, par (a)(ii), (vi), (b) and (c).
Development Control Plan, Table 25.1-1, type F.
UCPR, rr 1.5, 1.6, Sch 1.
Civil Procedure Act, s 11; UCPR, Sch 2.
Cf Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245.
Court Act, s 39(2).
Court Act, s 42(2) and (3).
(2008) 72 NSWLR 504; [2008] NSWCA 209.
(1995) 4 Tas R 411.
Planning Regulation, cl 52(1).
Planning Regulation, cl 54(1).
Planning Regulation, cl 55(1).
Cf Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304 at [46], with respect to community consultation in relation to the preparation of a planning instrument.
[2006] NSWLEC 155; 145 LGERA 292.
See, for example, Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40] (Talbot ACJ).
[2016] NSWLEC 156.
Primary judgment at [71].
A passage taken from Ali at [120].
Primary judgment at [74] - [80].
See Benevolent Society [66], at [18] above.
(2010) 241 CLR 320; [2010] HCA 24.
Repatriation Commission v O'Brien (1985) 155 CLR 422 at 430 per Gibbs CJ, Wilson and Dawson JJ. 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: 26 February 2019

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (105)