Ku-ring-gai Council v Sydney West Joint Regional Planning Panel - [2010] NSWLEC 270 - NSWLEC 2010 case summary — Zoe

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Ku-ring-gai Council v Sydney West Joint Regional Planning Panel

[2010] NSWLEC 270

Land and Environment Court (NSW)|2010-07-01|Before: Biscoe J, Mr J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2010-07-01

Before

Biscoe J, Mr J

Source

Original judgment source is linked above.

Judgment (102 paragraphs)

[1]

INTRODUCTION………………………………………………………1-5 BACKGROUND………………………………………………………..6-44 FUNCTIONS OF A REGIONAL PANEL…………………………….45-46 KU-RING-GAI PLANNING SCHEME ORDINANCE ………………47-55 GROUND 1 - THE DEVELOPMENT WAS PROHIBITED……… 56-92 GROUND 2 - NO ASSESSMENT OF SEPP 1 OBJECTION…….93-112 GROUND 3 - DENIAL OF NATURAL JUSTICE…………………..113-117 COUNCIL'S STANDING…………………………………………….. 118-122 CONCLUSION…………………………………………………………123 INTRODUCTION 1 HIS HONOUR: This is a challenge by Ku-ring-gai Council to the validity of a development consent granted by the first respondent, the Sydney West Joint Regional Planning Panel (Panel), on 29 April 2010 to the second respondent, Hyecorp Property Fund No 6 Pty Ltd, for the demolition of four existing dwellings and the construction of two residential flat buildings comprising 62 units at 27-33 Boundary Street, Roseville (Land). 2 The focus of the case is on (a) the Land's Boundary Street frontage which comprised a county road widening reservation (road reserve) under the Ku-ring-gai Planning Scheme Ordinance (KPSO), and (b) Hyecorp's objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to compliance with the deep soil landscaping development standard in cl 25I(2) of the KPSO (DSL SEPP 1 objection). 3 Three grounds of challenge are pressed: (a) the Panel had no power to determine the development application because it was an essential pre-condition to carrying out permanent work proposed on the Land that the Council or alternatively the Panel, as the responsible authority, had to form the opinion required by cl 13(2) of the KPSO that the purpose for which the road reserve is reserved could not be carried into effect within a reasonable time after the appointed day (1 October 1971). The pre-condition was not satisfied because the Council or alternatively the Panel did not form that opinion; (b) the Panel had no power to determine the development application because by reason of cl 13F(2)(d) of State Environmental Planning Policy (Major Development) 2005 ( Major Development SEPP ), assessment by the Council or alternatively the Panel was an essential pre-condition to the exercise of the Panel's power to determine the development application. The pre-condition was not satisfied because the Council or alternatively the Panel did not assess the DSL SEPP 1 objection. Alternatively, if the Panel had power to assess the DSL SEPP 1 objection and did so (which is denied), it failed to carry out the assessment required by cl 7 of SEPP 1;

[28]

41 On 1 September 2010 the Council commenced these proceedings. 42 On 15 November 2010 the majority of the Panel who had voted in favour of development consent (Ms Thomson and Messrs McDonald and Mitchell) provided the following statement of their reasons for the purposes of these proceedings: 1. The development complied with the relevant provisions of the Ku-ring-gai Planning Scheme Ordinance apart from Clause 25I(2). 2. An objection under SEPP 1 was lodged in relation to compliance with Clause 25I(2) of the KSPO [sic] and the Panel resolved to accept this objection. 3. The Panel considered that the SEPP 1 Objection showed that compliance with the applicable development standard (Clause 25I(2)) was unnecessary or unreasonable. 4. The Panel was also in receipt of advice via Council of the contemporary position of the RTA specifying its road-widening requirement. This was related to the preparation of the Town Centres LEP the making of which was imminent. In taking its position that the development was complying the Panel relied on and gave appropriate weight to that factor. 5. Council officers confirmed at the meeting that the proposal was a complying development (with all the relevant planning controls) apart from the issue of cl 25I(2). 6. The Panel agreed that the proposal generally complied with the other planning controls relating to the site and did not have any significant adverse impacts on the surrounding area and was appropriate on merit. 7. The Planning Report provided a comprehensive analysis of the proposal and provided adequate information to demonstrate that if the contravention of cl 25I(2) was resolved the application was worthy of approval on merit. 8. The Council Planning staff had supplied conditions for approval of the development. 43 On 19 November 2010 short minutes of order made by the Court noted: "The Court notes that the first respondent [the Panel] has provided the applicant with a statement of reasons (attached) on 16 November 2010, which comprises a statement of reasons of the members of the first respondent that voted to approve the application, being a statement which includes the first respondent's findings on any material questions of fact and the reasons that led to the decision." 44 In their affidavits, those three Panel members amended their reasons to the following effect:

[51]

59 Under cl 6(2) of the KPSO the Council is the responsible authority referred to in cl 13(2). However, if the cl 13(2) functions are part of the determination of a development application, then under s 23G(2)(a) of the EPA Act and cl 13F(1)(a) of the Major Development SEPP those functions are conferred on the Panel. And under s 23G(5A) the Panel, in the exercise of those functions, is taken to be the Council. Those provisions are set out at [45] - [46] above. 60 Thus, the first ground of challenge hinges mainly on whether the functions of the Council referred to in cl 13(2) of the KPSO are conferred on the Panel under s 23G of the EPA Act and cl 13F(1)(a) of the Major Development SEPP and, if so, whether the Panel formed the cl 13(2) opinion. In other words, the question is: what is the effect on cl 13(2) of this old environmental planning instrument (now repealed) of the modern statutory conferral of one consent authority function (the determination of development applications) on regional panels? Each of the parties has a different answer to the question. 61 The respondents admit on the pleadings that the development involves carrying out of works of a permanent character on the road reserve within the meaning of cl 13(1) of the KPSO. The "road reserve" means the area of 760.5 m2 reserved under the KPSO. Hyecorp submits that its admission does not prevent it from disputing, as it does, that the works on the land reserved for road widening under the DLEP or under the RTA's letter of 17 February 2010 and deposited plan (29.7 m2) are works of a permanent character; and therefore, cl 13(1) is inapplicable. I reject the submission. Those smaller areas are part of the 760.5 m2 and the admission applies to every part. Further, because of the admissions in the pleadings and my refusal of the respondents' belated applications to withdraw the admission at the commencement of the hearing, there was no evidentiary contest, as otherwise would have been likely, concerning the permanency of the works. Therefore it would be unfair to the Council to entertain it as an issue. If I am in error, I would be prepared to accept the Council's alternative submission that, as a matter of fact, the works comprising landscaping and access pathways, at least, are of a permanent character and are located along the frontage of the Land, well within the DLEP area. 62 To some extent the competing constructions are influenced by the relationship between provisions such as cll 13 and 18 of the KPSO established as follows by this Court in Lloyd v Minister Administering the Environmental Planning and Assessment Act 1979 (1992) 76 LGRA 158 (upheld on appeal Minister Administering the Environmental Planning and Assessment Act 1979 v Lloyd, NSWCA, unreported, 6 August 1993; see also North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740 at 742 (CA)):

[55]

(a) the responsible authority referred in cl 13(2) is the Council: cl 6(2); (b) the consent of the responsible authority referred to in cl 13(2) is the function of determining a development application by consent. Therefore that function is conferred on the Panel: s 23G EPA Act , cl 13F(1)(a) Major Development SEPP; (c) whether or not (b) is correct does not matter in this case because neither the Council nor the Panel formed the cl 13(2) opinion. 66 As became common ground, the two references to "responsible authority" in cl 13(2) are references to the same responsible authority. In my opinion, cl 13F of the Major Development SEPP does not bifurcate the cl 13(2) functions: that is, it does not confer the opinion function on the Panel and the consent function on the Council. The two are inextricably joined. If the consent function is conferred on the Panel then so is the opinion function. If the Council submits to the contrary (by the end of the hearing I did not think it did), I do not accept the submission. 67 The essential question is: do the consent and opinion functions referred to in cl 13(2) of the KPSO fall within the description in cl 13F(1)(a) of the Major Development SEPP of a "consent authority function" being "the determination of development applications…in accordance with Part 4 of the [EPA] Act"? If so, then the cl 13(2) functions are conferred on the Panel; if not, those functions are conferred on the Council. 68 The Council cites Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399, 105 LGERA 370. That was a merit appeal to this Court under s 97 of the EPA Act against refusal of a development application. A local environmental plan provided that a council shall not consent to the carrying out of development unless it is satisfied that certain prior infrastructure arrangements had been made. The Court of Appeal held that the function of "satisfaction" was at the heart of and essential for the decision on the development application. The Court of Appeal also held that the "satisfaction" was a function which this Court could exercise on appeal under s 39(2) of the Land and Environment Court Act 1979 (LEC Act). The Council's submission, as I understand it, is that this Court has a development consent function in a merit appeal by virtue of s 97 of the EPA Act and the Codlea founding of the "satisfaction" function on s 39(2) of the LEC Act indicates that the satisfaction is not a development consent function. Therefore, by analogy, the same should be said of the cl 13(2) opinion. Section 39(2) provides: "In addition to any other functions and discretions that the Court has apart from this subsection, 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." 69 I do not accept the submission. In my view, s 39(2) confers on this Court the function of granting development consent and Codlea did not hold to the contrary. The decision in Codlea that the "satisfaction" function was at the heart of and essential for the decision on the development application indicates that it is part and parcel of the function of determining a development application. Section 97 of the EPA Act gives a right of appeal to this Court to an applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application. Section 17(d) of the LEC Act gives the Court jurisdiction to hear and dispose of appeals under s 97. The powers of the Court on an appeal are stated in ss 39 and 40 of the LEC Act. The words "in respect of" in s 39(2) are of wide import. Section 39(2) places the Court fully in the shoes of the consent authority with the result that the Court may exercise all functions and discretions which were open to the consent authority: McDougall v Warringah Shire Council [No 2] (1993) 30 NSWLR 258 at 264 (CA). "Functions" is defined in s 4(1) to include powers, authorities and duties. That includes the consent authority's function under s 80 of the EPA Act of determining a development application by granting consent conditionally or unconditionally or refusing consent. If I am in error, in any event Codlea is distinguishable as it was concerned with the power of this Court on a merit appeal and with separate statutory regimes. 70 If, as the Panel submits, a cl 13(2) consent of the responsible authority is development consent then cl 13(2) cannot operate without lodging a development application.

[56]

71 Hyecorp's submission is that a cl 13(2) consent of the responsible authority can be given without a development application being lodged, but is necessarily incidental to a development consent where a development application has been lodged. The submission should not be accepted I think because apart from cl 13(2) there is not provision in the KPSO for consent to development on reserved land. Therefore the KPSO does not contemplate a separate development consent for reserved land to which the cl 13(2) consent is necessarily incidental. Even if that is incorrect, Hyecorp's submission has a strange result because in the first situation to which it speaks the Council is the responsible authority whereas in the second situation the Panel is the responsible authority. On Hyecorp's argument, in the case of a prospective developer/owner, the identity of the responsible authority turns on which procedure the prospective developer/owner opts to follow. If it lodges a discrete cl 13(2) application in order to see whether there is any point in making a development application (since there is no point if cl 13(2) consent is refused), the Council is the responsible authority. If it just makes a development application, cl 13(2) assumes a symbiotic relationship with the development application such that the Panel is the responsible authority. 72 Clause 13(1) provides that specified development may not be carried out except as provided in cl 13(2). Clause 13(2) provides for consent of the responsible authority to certain development on reserved land subject to formation of the prescribed opinion. The further "consent" of the Commissioner may be viewed as in the nature of concurrence. The KPSO contains no other provision for consent by the responsible authority to development on reserved land. The terms and context of cl 13 tend to suggest that the cl 13(2) consent of the responsible authority is development consent and that cl 13(1) and (2) together come within s 76A(1) of the EPA Act which provides: "If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument."

[65]

(a) the unchallenged evidence of the dissentients, Councillors Cross and Malicki, which I accept, was to the effect that they gave no consideration to the opinion required by cl 13(2); (b) as Councillors Cross and Malicki did not form the cl 13(2) opinion, it is only necessary for the Council to establish that one more member of the five person Panel also did not do so; (c) the minutes of the Panel meeting do not record the formation of the requisite opinion; (d) the statement of reasons of the three majority members of the Panel, which included their factual findings, did not say they formed the cl 13(2) opinion, nor did their affidavits (see [42] - [44] above). I do not accept the respondents' suggestion that paragraph 4 of the majority's statement of reasons indicates that they formed the opinion; (e) the Panel never discussed permissibility or the cl 13(2) opinion, nor was permissibility referred to in the Council's development assessment report; (f) Ms Thomson's evidence was that: (i) she satisfied herself that the RTA was the responsible Authority in respect of road widening and that the RTA stated it no longer required all the land in the DLEP thereby satisfying her that cl 13 was no impediment to the grant of consent. In my opinion, she was in error because the RTA was clearly not the responsible authority; (ii) she gave no consideration to whether a reasonable time had passed since the appointed day. This evidence was given orally and the respondents suggest that the context in which it was given and her demeanour or tone of voice should lead to the conclusion that she intended to say that obviously a reasonable time had elapsed. I disagree; (iii) she conceded that she only considered the road widening issue in the context of considering the DSL SEPP 1 issue (ie not in the context of the opinion required to be formed by cl 13(2)); (g) the respondents submit that Ms Thomson's evidence does not matter because the objective facts known to her dictated the outcome, ie the reasonable time question had been determined by the lapse of time and the imminence of the DLEP. I do not accept the submission, which is tantamount to inviting the Court to substitute its own opinion for the opinion of the Panel required by cl 13(2); (h) the Panel submits that it is significant that Ms Thomson was not asked "Did you form an opinion that the purpose for which the land was reserved could not be carried into effect within a reasonable time after the appointed day?". I do not consider it necessary for that question to have been put given the evidence referred to in (f) (i) and (ii) above. 83 I conclude that at least Ms Thomson, as well as Councillors Cross and Malicki, did not form the required cl 13(2) opinion. As they constitute a majority of the Panel it follows that the Panel did not form that opinion. 84 Although it is unnecessary to go further and decide whether the Council has proved that the other two members of the Panel, Messrs McDonald and Mitchell, did not form the cl 13(2) opinion, I will do so. The evidence is more sparse than in the case of Ms Thomson. In the statement of reasons and their affidavits, they did not say whether or not they formed the required opinion. The short minutes of orders noted that the statement of reasons included their findings on any material questions of fact: above at [42] and [43]. Since the state of a man's mind is as much a question of fact as the state of his digestion, that tends to suggest that they did not form the required opinion. In cross-examination Mr McDonald said he gave consideration to cl 13 when determining the development application in the context of the SEPP 1 proposal and not otherwise and that the question of permissibility had not been raised other than in context of the SEPP 1 objection. In cross-examination Mr Mitchell was asked whether he considered permissibility and answered that there were clear statements by the Council that it was permissible at the September 2009 briefing. He said he gave no consideration to future road widening at this location. They were not asked directly whether they formed the cl 13(1) opinion. Nevertheless, overall I think that the state of the evidence favours the conclusion that probably neither formed the cl 13(2) opinion, even if the note in the short minutes of order is left out of account.

[69]

(a) Hyecorp has not cited any authority in which relief has been withheld in circumstances similar to the present case. Hoffmann La Roche was a case in which a declaration was sought that orders made by the Monopolies Commission was invalid because its procedures were contrary to the rules of natural justice (ie a denial of procedural fairness). The quoted remarks of Lord Denning were made in that context. In contrast, Ground 1 in the present case is based on acting beyond power or jurisdiction. Cubic concerned the withholding of equitable relief in private law proceedings on the basis of unclean lands. It would be unusual to withhold relief where jurisdictional error is established, which in this case would involve the Panel not having the power to grant consent at all because of its failure to have formed the requisite opinion; (b) the Council's failure to advise the Panel that the development was or may be prohibited in my view should not be categorised as seeking to take advantage of its own wrong; (c) the question of the jurisdictional boundaries between the Council and the Panel raises a question of some public importance in relation to the construction of the relevant statutory provisions where the applicant's conduct may bear less heavily as the exercise of the discretion. 90 The Panel's submissions on discretion insofar as they were additional to Hyecorp's submissions were to the following effect: (a) the DLEP has been made and it reduces the area required for road widening; (b) the area agreed in the DLEP was agreed after consultation between the Council and the RTA; (c) there is no evidence of intention to increase the land required for road widening; (d) the DLEP does not require the formation of the same opinion as was required by cl 13(2) of the LEP; and (e) the works are such that they would not prevent the carrying out of either road widening as per the DLEP or the 29 m2 proposal. To the extent that these matters are relevant to discretion, I think that they are insufficiently weighty. 91 The Panel also submits on discretion that there is no public purpose to be served by the order for invalidity. I disagree. To decline to grant relief would set at nought the provisions of cl 13(2) and would enable development on land reserved for road widening purposes when the relevant requirements of that provision have not been complied with. 92 On balance, I decline to exercise the discretion to withhold relief in relation to Ground 1.

[83]

99 Consistently with the statutory scheme (although it is not a guide to its interpretation), the NSW Government's publication "Joint Regional Planning Panels Operational Procedures" states: "The role of council staff is to undertake the assessment of the DA"; a council "is responsible through its staff for undertaking the assessment of the application in accordance with the provisions of the EPA Act. It is the council's responsibility to prepare a proper assessment report addressing all statutory requirements and properly considering all issues"; and "The assessment report submitted for consideration of the Regional Panel must address the matters raised in the SEPP 1 objection, and provide an assessment against the provisions of SEPP 1": at [3.1], [4.8]. 100 The statutory scheme indicates in my view that a council's assessment of a development application is a condition precedent to a regional panel's determination of a development application, and that in the case of a non-compliant development a SEPP 1 objection is at the heart of the determination so that it must be included in the assessment. 101 I accept that matters may arise at the Panel meeting held to determine the application, such as new facts raised by speakers or the Panel, which have not been, and do not have to be, the subject of prior Council assessment. That is inherent in the process. But a SEPP 1 objection in the case of a non-compliant development is different. The requirement that it be assessed by the Council cannot be avoided by lodging it at the last moment with the Panel, as occurred in this case. If that happens, and the Panel decides to consider it, the Council must be given a reasonable opportunity to assess it, which in fact did not happen in this case. 102 Council staff did not assess the DSL SEPP 1 objection and did not even see it until after the Panel meeting. The Panel chair asked Ms Munn, the Council officer, to go outside and do an assessment of the DSL SEPP 1 objection, but she declined on the basis that it was inappropriate as there was insufficient time. I accept her evidence that in fact there was insufficient time at the meeting for her to carry out the assessment that she considered appropriate and which was reasonable: see [33] above.

Parties

Applicant/Plaintiff:

Ku-ring-gai Council

Respondent/Defendant:

Sydney West Joint Regional Planning Panel

Cases Cited (20)

CITATION : Ku-ring-gai Council v Sydney West Joint Regional Planning Panel (No 2) [2010] NSWLEC 270 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Balmain Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 2) [2010] NSWLEC 1, 172 LGERA 25 Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399, 105 LGERA 370 Coffs Harbour City Council v Arrawarra Beach Pty Ltd [2006] NSWLEC 365, 148 LGERA 11 Commissioner of Police v Ryan [2007] NSWCA 196, 70 NSWLR 73 Cubic Transportation Systems Inc v State of New South Wales [2002] NSWSC 656 F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 George v Rockett [1990] HCA 26, 170 CLR 104 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277 CASES CITED: Kioa v West (1985) 159 CLR 550 Lloyd v Minister Administering the Environmental Planning and Assessment Act 1979 (1992) 76 LGRA 158 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899, 93 FCR 34 McDougall v Warringah Shire Council [No 2] (1993) 30 NSWLR 258 Minister Administering the Environmental Planning and Assessment Act 1979 v Lloyd, NSWCA, unreported, 6 August 1993 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611 North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740 R v Connell; ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, 204 CLR 82 Stewart v Ronalds [2009] NSWCA 277, 76 NSWLR 99 Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383

[1999] HCA 21

(1991) 25 NSWLR 615

(1985) 159 CLR 550

(1993) 30 NSWLR 258

(1988) 14 NSWLR 740

(1944) 69 CLR 407

(1985) 2 NSWLR 383