Lakeman v Ku-ring-gai Council

Land and Environment Court (NSW)|2013-02-12|Before: Pain J

Judgment 1The Council moves on its Notice of Motion filed on 18 January 2013 seeking to strike out the Applicant's class 1 appeal for want of jurisdiction because the appeal was lodged out of time. The Council also seeks its costs of the proceedings including the costs of the motion or of the motion only. The question to be determined is whether or not the Applicant has commenced an appeal within the time allowed by s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

Environmental Planning and Assessment Act 1979 2The relevant sections of the EPA Act provide: 80 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. ... 82A Review of determination (1) If the consent authority is a council, an applicant may request the council to review a determination of the applicant's application, other than: (a) a determination to issue or refuse to issue a complying development certificate, or (b) a determination in respect of designated development, or (c) a determination in respect of integrated development, or (d) a determination made by the council under Division 4 in respect of an application by the Crown. (subsections (a) - (d) are not applicable) (2) A council must, on a request made in accordance with this section, conduct a review. (2A) A determination cannot be reviewed: (a) after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or (b) after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination. (3) (Repealed) (3A) In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4) (c). (4) The council may review the determination if: (a) it has notified the request for review in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and (b) it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be, and (c) in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application. (4A) As a consequence of its review, the council may confirm or change the determination. (5) (Repealed) (6) If the council reviews the determination, the review must be made by: (a) if the determination was made by a delegate of the council-the council or another delegate of the council who is not subordinate to the delegate who made the determination, or (b) if the determination was made by the council-the council. (7)-(9) (Repealed) (10) If on a review the council grants development consent, or varies the conditions of a development consent, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 97 in respect of its determination withdrawn at any time prior to the determination of that appeal. (11) (Repealed) (12) ... 82C Review procedures generally (1) This section and section 82D apply to a review held under section 82A, 82B or 96AB by a reviewing body. (2) An application for a review must be made, the review must be held and the review must be determined, within the relevant periods (if any) prescribed by the regulations. (3) The regulations may provide that a failure to determine an application within a period prescribed by the regulations is taken to be a decision refusing the application. (4) The prescribed fee must be paid in connection with an application for a review. (5) Before determining an application for a review (other than a review under section 82A), the reviewing body must notify the request for review (if required to do so by the regulations) and must consider any submissions made concerning the application for review within any period prescribed by the regulations. (6) The reviewing body must, in accordance with the regulations, give notice of the result of its determination of an application for a review to the person who applied for the review. (7) A decision on an application for a review may not be further reviewed under the same section by the same reviewing body. (8) The regulations may make further provision with respect to review applications, the conduct of a review and the notification of review decisions. (9) In this Division: reviewing body means the council or the delegate of the council who conducts the review. 82D Effect of review decisions (1) For the purposes of determining an application for a review, a reviewing body has the same functions as the consent authority had, in relation to the original application or determination. ... (3) If the reviewing body changes a determination ...the changed determination replaces the earlier determination as from the date of review and the date of determination of the application is taken to be the date of the decision on the review. (4) If the reviewing body grants development consent, or varies the conditions of a development consent or otherwise modifies a development consent, the reviewing body must endorse on the notice issued under section 82C (6) the date from which the consent, or the consent as varied, operates. (5) A decision by a reviewing body in determining an application for a review is taken for all purposes to be the decision of the consent authority. (6) This section has effect even if the appointment of a reviewing body or a member of a reviewing body is subsequently found not to have been validly made. 97 Appeal by applicant-development applications (1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after: (a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or (b) the date on which that application is taken to have been determined under section 82 (1).

Environmental Planning and Assessment Regulation 2000 3The relevant clauses of the Environmental Planning and Assessment Regulation 2000 (the Regulation) provide: 113A Public participation: application under section 82A of the Act for review of council's determination (1) This clause applies to an application under section 82A of the Act for review by a council of its determination of a development application. (2) An application to which this clause applies must be notified or advertised for a period not exceeding 14 days, but otherwise in the same manner as the original development application was notified or advertised. (3) However, if the application is made to a council that has provided in a development control plan for the notification or advertising of such an application, the application is to be notified or advertised in accordance with the development control plan. (4) The council must cause copies of the application to be given to each concurrence authority for the development to which the application relates. (5) The notice or advertisement referred to in subclause (2) must contain the following information: (a) a brief description of the original development application and the land to which it relates, (b) a statement that submissions concerning the application for review may be made to the council within the period referred to in section 82A (4) (b) of the Act. (6) For the purposes of section 82A (4) (b) of the Act, the period within which submissions may be made in relation to such an application is the period specified: (a) in subclause (2), except as provided by paragraph (b), or (b) if the council has made a development control plan specifying such a period, in the development control plan. (7) During the period referred to in subclause (2) or, if a development control plan provides for a period for notification or advertising of an application, during that period, any person may inspect the application and any accompanying information and make extracts from or copies of them. ... 123G Review of determination of development application A council must give written notice to an applicant of the result of a review under section 82A of the Act as soon as practicable after the review is determined. 4The Planning Appeals Legislation Amendment Act 2010, Sch 1[8], commenced on 28 February 2011, and made a number of amendments to s 82A. Subsection 2 was amended as set out above requiring a council to carry out a review if a request is made. Subsections 3, 5, 7-9 and 11 were repealed. Subsection 7 became Regulation 123G. Subsection 9 became s 82D(3).

Evidence 5Evidence was the affidavit of Mr Mark Cottom solicitor dated 17 January 2013 which attaches a copy of the letter sent by Mr Cottom to the Applicant on 15 January 2013 inviting the discontinuance of the Class 1 proceedings, a copy of a facsimile transmission received from the Applicant's solicitors on 16 January 2013 in response to the letter dated 15 January 2013, a copy of the Notice of Determination of the development application, a copy of the letter sent by the Council returning the documents submitted by the Applicant when requesting a review of the determination, and the relevant extracts of the Council's Development Control Plan in relation to the statutory notification period required for a review of determination. 6On 18 May 2012, the Council refused DA0036/12 for: the demolition of existing structures and construction of eight (8) villa units, with carparking, common facilities and associated landscaping for Seniors [SEPP Housing for Seniors or People with a Disability] at 80 Bobbin Head Road, Turramurra 7On 23 May 2012, a Notice of Determination of refusal of DA0036/12 was issued. 8On 13 November 2012, the Applicant lodged with the Council a request under s 82A of the EPA Act, seeking the review of the Council's determination of the development application. 9By letter dated 29 November 2012, the Council rejected the s 82A request, returned the documentation and undertook to refund the fees paid. The November letter provides in part as follows: Section 97 provides that an application's determination may be appealed within 6 months of the date on which the applicant received notice of determination. Council's determination notice is dated 23 May 2012. Since more than 6 months has elapsed since Council's determination, Council can no longer proceed with the review determination, as insufficient time has been provided to Council to enable it to assess the review, particularly when the statutory notification period required for the review exceeded the time available to assess the application. 10On 20 December 2012, a Class 1 appeal was filed with the Court.The appeal lodged on 20 December 2012 was more than six months after the refusal of the Applicant's DA on 23 May 2012. 11The Class 1 application states that the decision appealed against by the Applicant is dated 29 November 2012. That is the date of the letter from the Council to the Applicant rejecting and returning the s 82A review request.

Council's submissions 12The appeal is outside the six months allowed by s 97(1) of the EPA Act from the determination of the Applicant's development application on 23 May 2013. The s 82A review must be determined within that six month period by virtue of s 82(2A) unless a Class 1 appeal is filed pursuant to s 97(1). The Applicant did not lodge a request for a review in time for the Council to determine the application as the review was sought only ten days before six months expired on 23 November 2012. The decision of Lloyd J in Hainbury Pty Ltd v Campbelltown City Council [2007] NSWLEC 713 at [15]-[16] should be followed. Longhill Projects Pty Ltd v Parramatta City Council [2009] NSWLEC 1414, a decision of Acting Registrar Gray is also correct and should be followed. 13There can be only one determination under s 97(1) and that is of the Applicant's DA pursuant to s 80. An appeal under s 97(1) was not lodged by the Applicant prior to the expiration of six months of the determination by refusal of the DA; per Hainbury at [16]. While the request for the s 82A review was made within the six month time period, the making of that request under s 82A(1) cannot extend the limitation period under s 97(1); per Hainbury at [12]. There is no provision for a deemed refusal of a request for review under s 82(1) of the EPA Act. The time limitation period is only extended pursuant to s 82D(3) if the reviewing body "changes a determination". 14The decision to reject and return the s 82A request is not a determination from which an appeal lies. Rather, an appeal lies with respect to the original determination of a DA or a change of determination on a review application. 15Even if the decision to reject and return the s 82A request was a "determination" (which is denied), it was not a determination under s 82A which could lawfully have been made at that time as the Council lacked the power to determine the Applicant's s 82A request because of s 82A(2A). Pursuant to s 82A(4)(a) the Council was empowered to review the determination if it had notified the request for review in accordance with a development control plan, if the Council has made a development control plan that requires the notification or advertising of requests for the review of its determination. Relevantly, the Council has made Development Control Plan 56 titled Notification which requires the notification of a request for review for the subject DA for a period of not less than 30 days (Cottom at [6] and Annexure E). In order to be empowered to review the determination the Council, pursuant to s 82A(4)(b) must also have considered any submissions made concerning the request for review.

Applicant's submissions 16Section 82A permits an applicant to request the council to review a determination of the applicant's application and the council must, on a request made in accordance with s 82A, conduct a review. One of the two limitations on the council's power to review is in s 82A(2A)(a) which provides that a determination cannot be reviewed after the time limited for the making of an appeal under s 97 expires, if no such appeal is made against the determination. 17Section 97(1) provides that an applicant dissatisfied with the determination of the consent authority with respect to an applicant's development application (including a determination on a review under section 82A) may appeal to the Court within six months after the date on which the Applicant received notice of the determination of that application or review. 18Section 82A(2) is mandatory. If a request is made for a review in accordance with s 82A(1) the council must conduct a review. Under s 82A(2A) the constraint on the council's power to review is, relevantly, by reference to the time limited for the making of an appeal under s 97. But the council must give written notice of the result of a review under s 82A as soon as practicable after the review is determined (cl 123G of the Regulation). 19The decision communicated to the Applicant by the Council in its letter dated 29 November 2012 that, in the circumstances outlined in that letter, the review could not be conducted to conclusion, is a determination of the Council on a request properly made by the Council to conduct a review (s 82A(1)). Further, it is a "determination on a review" where that phrase is used in s 97(1). 20The time limit for appeal under s 97 is within six months of the determination of the request for review which a council must conduct. The Applicant's request for review, having been made on 13 November 2012 was within six months of the Council's Notice of Determination under s 81 (and for that matter, within six months of the Council's determination). The Applicant's request for a review was made in accordance with s 82A within the time permitted by the EPA Act. 21The word "determination" where used in s 82A is the determination in respect of which the review is requested. Under s 82A(4A) the only function of a council is to review the determination, from which a council may confirm or change the determination. The council is given no other choice. 22The mandatory requirement under cl 123G is for the Council to give written notice of the "result" of a review. The "result" of the "request" for review of the determination is the dispositive action of the Council under s 82A of the "request". Where s 97 refers to "a determination on a review" it must be referring to the "result" of a review communicated pursuant to cl 123G. The "result" is "the determination". 23The Council, on the true construction of s 82A, s 97 and cl 123G has determined the request for review by deciding that it will not review. It was the determination not to review which was a determination on the review giving rise to the right of appeal under s 97. The decision of the Council conveyed in its letter dated 29 November 2012 was determinative of the request. It was "a determination on a review under s 82A" where that phrase occurs in s 97.

Class 1 application not filed within statutory appeal period 24This is apparently the first case where the Court has been asked to consider the operation of s 82A and s 97(1) since the amendment, from 28 February 2011, of s 82A(2) imposing a duty on a council to consider a request for a review. While other changes were also made to s 82A as outlined above in par 4, these did not otherwise materially alter the legislative scheme previously in effect in s 82A in the circumstances of this case. 25The Applicant submitted that the request for the review was lodged with the Council within the period specified in s 82A(2A) because it was lodged within six months of the Notice of Determination. That section does not expressly so provide. Section 82A(2A) states that a determination cannot be reviewed after the time limit of an appeal under s 97(1) has expired where no such appeal is made against the determination. This submission is made in tandem with the Applicant's submission that the determination in s 97(1) includes the determination of a review separately from the determination of a development application. The additional argument the Applicant also makes in conjunction with the above is that the rejection of the review request by the Council's letter dated 29 November 2012 was a determination of a review for the purpose of s 97(1). It is simplest to deal with the last argument first.

Rejection of request not a determination 26The argument of the Applicant that "result" in s 82C(6) and cl 123G of the Regulation encompasses a rejection of an application is not consistent with the scheme of the Act, as the Council's counsel submitted. Under s 82A(4A) a council can confirm or change the determination. Those are the results contemplated in a s 82A review. A rejection of a request for review is not a confirmation or change of the determination. Applying broad dictionary meanings such as the Applicant's counsel urged does not assist in the construction of "result" in its statutory context. 27Section 82D(3) specifies that only if there is a change in the determination does a new determination arise, in my view for the purposes of s 97(1), and hence a new date from which an appeal can be made. The rejection of the s 82A review did not result in a different determination of the DA. That finding is sufficient to dispose of the matter because the letter from the Council dated 29 November 2012 was not a determination of the review and cannot be a determination of a review as referred to in s 97(1). The Applicant did not therefore commence this Class 1 appeal within the statutory limitation period provided of six months.

Request for review does not extend appeal period 28Turning to other arguments made by the Applicant, the scheme of s 82A in its current form imposes an obligation on a council to undertake a review (s 82A(2)), a provision that is central to the Applicant's arguments. No time frame for a council doing so is specified in the Act or Regulation nor is there a deemed refusal period. Section 82C(3) provides for the making of regulations which specify the time within which an application and review must take place. This has not occurred. Section 82C(3) permits the making of regulations which provide that a failure to determine an application within a period prescribed is taken to be a decision refusing the application. This has also not occurred. In the absence of other provisions concerning timing of a review, the only reference to timing is s 82A(2A) whereby a determination cannot be reviewed after the time limited for the making of an appeal under s 97 expires if no such appeal is made against the determination. Subsection (b) is not relevant to this case. That statutory scheme does not support an inferential finding that lodging a request for a review alone preserves an appeal right under s 97(1).

29Section 97(1) refers to the determination of a review. The construction of the word determination in the relevant statutory provisions set out above is also central to the Applicant's submissions. Determination of a development application is the subject of s 80(1) and a request to review a determination of an application is provided for in s 82A(1). Section 82A(2A) states a determination cannot be reviewed in certain circumstances, which must refer to the determination under s 80(1). Section 82A(4) states the Council may review the determination if the request for review is notified and submissions considered, which once again must be the determination under s 80(1). Under s 82A(4A) the determination (under s 80(1)) can be confirmed or changed. Section 82C(6) states that the reviewing body must in accordance with the regulations, give notice of the result of its determination of an application for a review to the person who applied for the review. Section 82D(3) states that if the reviewing body changes a determination, the date of determination of the development application is taken to be the date of the decision on the review. Clause 123G of the Regulation refers to the giving of written notice to an applicant of the result of a review under s 82A as soon as practicable after the review is determined. 30The primary context in which the word "determination" is used in s 82A is to refer to the outcome of the development application determined under s 80(1). There can only be two outcomes of a request pursuant to s 82A(4A). That is, a council "may confirm or change the determination". Where the council confirms the determination, the only "determination" is the original outcome of the development application. Where the council changes the determination, however, s 82D(3) applies such that "the changed determination replaces the earlier determination as from the date of review." In my view, a "changed determination" as referred to in s 82D(3) is one that modifies the outcome of the development application by either refusing a development application that was approved, approving a development application that was refused, or changing the conditions imposed on an approval of a development application. In those circumstances, the "determination" of the development application is the changed determination resulting from the s 82A review. 31This scheme informs the construction of s 97(1)(a) which refers to notice being given, in accordance with the regulations, of the determination of an application or a review. If there is no change in the determination of an application under s 80(1), there is no change in the appeal period by virtue of s 82D(3) and that is the determination referred to in s 97(1). 32The circumstances in Hainbury were similar, a request for review being lodged with a council about a year after a Notice of Determination of a development application was issued and a Class 1 appeal was commenced about three weeks later. Lloyd J considered s 82A before the amendment of subsection 2 in its current form, that is when no obligation was imposed on a council to consider a review. 15 ... Section 82A(2A) of the EP&A Act sets out when a determination cannot be reviewed, as noted in par [8] above. 16 Section 82A(2A) refers to an appeal under s 97. The case here is that there is no valid appeal against the determination; that is, there was no right in the appellant to bring an appeal, the time under s 97 having expired. The consequence, in my opinion, is that the request for a review cannot be determined and there is no power to do so. 33The paragraphs of the short ex tempore judgment relied on are obiter and not binding on me. Principles of judicial comity per Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [90] suggest I should follow the decision unless obviously wrong. In any event, my reasoning above supports Lloyd J's conclusions. In Longhill Projects Pty Ltd v Parramatta City Council [2009] NSWLEC 1414, Acting Registrar Gray considered s 82A in its form prior to the Amendment Act and held correctly that the term "determination" in s 82A refers to the determination of the development application, rather than the determination of the request for review, at [18]. 34For these reasons I cannot accept the balance of the Applicant's arguments that the review request extended the Class 1 appeal period in s 97(1).

Legislative scheme 35A council has an obligation to conduct a review pursuant to s 82A(2). Section 82A(4) specifies what a council must do as part of a review. A council must comply with cl 113A of the Regulation which specifies a minimum public notification and receipt of public submissions period of 28 days unless a development control plan contains longer periods. In the absence of specific time frames within which a council must determine a request for a review the scheme envisaged in s 82A is not clear from an applicant's perspective as to when a request for a review will be completed. Applicants wishing to preserve their appeal rights must comply with the six month appeal period in s 97(1) for filing a Class 1 appeal where a review request is undetermined at the expiration of that period. When the council does consider the review, s 82A(10) applies. 36The Council is successful in its Notice of Motion and the first order sought should be made. I understand that the parties may wish to make submissions about costs and so will reserve these.

Orders 37The Court makes the following orders: (1)The Application Class 1 filed on 20 December 2012 is struck out for want of jurisdiction. (2)Costs reserved. 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: 20 February 2013

(2009) 178 LGERA 347

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