Lesnewski v Mosman Municipal Council

CATCHWORDS: ADMINISTRATIVE LAW - Judicial review - Privative clauses - Allegation of denial of procedural fairness - Whether s 101 of Environmental Planning and Assessment Act 1979 is a bar to challenge to validity of development consent on ground of denial of procedural fairness - Operation of the threefold Hickman principle - Breach of "imperative duty" or "inviolable restraint" - Whether procedural fairness is an "inviolable limitation or restraint". - ADMINISTRATIVE LAW - Judicial review - Jurisdictional facts - Validity of construction certificate - Requirement that there to be no inconsistency between construction certificate plans and development consent plans - Whether question of inconsistency was a jurisdictional fact. - COSTS - Whether costs orders in Court below should be disturbed - Costs where both sides partially successful on appeal.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000

Sericott Pty Limited v Snowy River Council (1999) 108 LGERA 66 Woolworths Limited v Pallas Newco Pty Limited [2004] NSWCA 422 Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 Coles Supermarkets Australia Pty Limited v Minister of Urban Affairs and Planning (1996) 90 LGERA 341 Chambers v Maclean Shire Council (2003) 57 NSWLR 152 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Moy v Warringah Council (2004) 133 LGERA 49 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Smith v Wyong Shire Council (2003) 132 LGERA 148 Kioa v West (1985) 159 CLR 550 Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476

Helen Lesnewski PARTIES: Mosman Municipal Council Robert J Wright and Carol Wright

A: J Webster SC / S Beverling COUNSEL: 1R: P Tomasetti 2R: J E Robson SC

A: Hunt & Hunt, Solicitors SOLICITORS: 1R: Pike Pike & Fenwick, Sydney 2R: Freehills, Sydney

LOWER COURT JURISDICTION: Land & Environment Court

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40309/04 L&E 0085/02

HODGSON JA IPP JA TOBIAS JA

Wednesday 6 April 2005 HELEN LESNEWSKI v MOSMAN MUNICIPAL COUNCIL & ORS Judgment 1 HODGSON JA: I agree with Tobias JA. 2 IPP JA: I agree with Tobias JA. 3 TOBIAS JA: Mrs Helen Lesnewski (the appellant) is the owner of 1 Hopetoun Avenue, Mosman (No.1). Her neighbours at 3 Hopetoun Avenue (No.3) are Mr Robert and Mrs Carol Wright (the second respondents). The latter applied to the first respondent, Mosman Municipal Council (the Council), for development consent to alterations and additions to the existing house on No.3 which was granted by the Council on 28 August 2000 (the consent). On 4 December 2000 the Council granted the second respondents a construction certificate pursuant to which the development, the subject of the consent, was duly constructed. 4 On 6 May 2002 the appellant instituted Class 4 proceedings in the Land and Environment Court in which she sought a declaration that the consent was null and void and of no effect. She therefore alleged, inter alia, that the alterations and additions to the existing dwelling house on No.3 had been carried out without consent as required by the Environmental Planning and Assessment Act 1979 (the EPA Act). An order for the demolition of various works was sought by way of consequential relief. 5 The proceedings were heard by Pain J who, on 29 March 2004, made a declaration that the second respondents had carried out certain relatively minor works without consent as required by the EPA Act but, to all intents and purposes, otherwise dismissed the appellant's various challenges to the validity of the consent. Further, in her discretion her Honour declined to grant the appellant any relief with regard to those works which she found to have been carried out without consent. The success of the second respondents in the proceedings was reflected in the orders for costs made by her Honour on 2 August 2004 in their favour. It is against her Honour's various decisions that the appellant appeals to this Court.

The relevant facts 6 Each of No.1 and No.3 is in the shape of a parallelogram. Frontage to Hopetoun Avenue runs in a southwest-northeast direction. As a consequence, the dwelling house on No.3 is located or staggered somewhat towards the rear of the dwelling house on No.1. The relationship between the improvements (as currently constructed) on each property is illustrated below:

7 The major aspect of each dwelling house is to the north across Hopetoun Avenue with the consequence that the main living areas of each dwelling have a northerly aspect. However, a bone of contention between the parties arises out of the fact that the kitchen of No.1 directly faces the side boundary of No.3 and, in particular, the swimming pool constructed on that property pursuant to the consent. 8 On or about 15 May 2000 the second respondents lodged with the Council a development application seeking consent to certain additions and alterations to the existing dwelling on No.3 (the application). Those additions and alterations included the construction on the upper level of two balconies, one on the eastern side and one on the western side of the building. It further included the construction of a new swimming pool and surrounds to be located adjoining the western boundary of No.1 and extending from the rear of the dwelling house on No.1 in a northerly direction for approximately one half of the length of that residence. 9 In August 1999 the Council had prepared and adopted a development control plan pursuant to s 72 of the EPA Act. It was entitled "Notifications Development Control Plan" (the Notifications DCP). Relevantly for present purposes, it provided for the notification to neighbours of certain details of development applications lodged with the Council (the requirements) and, in addition, provided for those so notified to receive a reduced (A4) copy of those plans forming part of the application which included the footprint of the proposed development, elevations and the location of windows and the like. 10 On or about 18 May 2000 the appellant received from the Council a notice with respect to the application containing the requirements. However, she alleged that a set of reduced plans did not accompany the letter. However, it does not appear to be disputed that the letter (as required) did advise that a full set of plans could be inspected at the Council Chambers and that submissions could be made within a period of 14 days from the date of notification. 11 As noted above, on 28 August 2000 the Council granted consent to the application subject to conditions. Pursuant to s 101 of the EPA Act, notice of the granting of the consent was published in the Mosman Daily newspaper of 7 September 2000. 12 On 4 December 2000, the Council, by its delegate Mr Glen Briggs, Manager Development Services, issued a construction certificate with respect to the proposed works the subject of the consent. The issue of such a certificate was required before building work could be lawfully commenced pursuant to the consent: EPA Act s 81A(2)(a)(i). Thereafter work commenced and continued from 2001 into 2002. According to the appellant's evidence, she did not become aware of the facts necessary to support a challenge to the validity of the consent and/or the construction certificate until early September 2001, after which she or her solicitors wrote to the Council alleging that the work being performed at No.3 did not accord with either the consent or the construction certificate. 13 On 6 May 2002 the appellant commenced Class 4 proceedings in the Land and Environment Court. On 5 December 2002 an amended Class 4 application was filed in which declarations were sought that the consent and the construction certificate were null and void or, in the alternative, that certain works had been carried out without consent granted pursuant to the EPA Act. An order was also sought that the second respondents demolish the swimming pool as constructed together with the following works: · Two windows on the west elevation; · Two balconies on the first floor; · Tiled area to the north of the living room; · Concrete paving; · Masonry and glass wall adjoining the swimming pool on its western side. The primary judge, with the agreement of the parties, decides to determine a preliminary issue 14 Each of the second respondents and the Council pleaded by way of defence that s 101 of the EPA Act was a jurisdictional bar to the Land and Environment Court entertaining the proceedings. With the agreement of the parties, the primary judge decided to determine this issue as a preliminary point before any evidence was tendered and findings of fact made. 15 Section 101 of the EPA Act provided as follows: "If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given." 16 In the present case, the three month period referred to in s 101 expired on 6 December 2000 whereas the proceedings were not instituted until 6 May 2002.

The findings of the primary judge in her judgment of 9 April 2003 (the first judgment) 17 In her judgment on the preliminary issue the primary judge noted that there were three grounds upon which it was asserted that the consent and the construction certificate were null and void. The first was an alleged failure by the Council to accord natural justice to the appellant because of its failure to include with its letter of notification of 18 May 2000 a reduced (A4) copy of the notification plans referred to in the Notifications DCP (the natural justice ground). The second alleged that the Council's general manager who purportedly granted the consent under delegated authority did not in the relevant circumstances have authority to do so under the terms of the delegation (the lack of jurisdiction ground). Thirdly, it was asserted that the construction certificate was invalidly issued by the Council in breach of Regulation 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 in that the design and construction of the building as depicted in the plans and specifications accompanying the application for the construction certificate were inconsistent with the plans the subject of the consent (the construction certificate ground). 18 With respect to lack of jurisdiction ground, the primary judge found that, on the authority of the decision of this Court in Sericott Pty Limited v Snowy River Council (1999) 108 LGERA 66, s 101 of the EPA Act barred the appellant's challenge to the power of the general manager to grant the consent. Although a challenge to this finding was included in her amended notice of appeal (and the appellant's written submissions sought faintly to support this ground), at the commencement of the hearing she abandoned this ground upon the basis that this Court had established by its decision in Woolworths Limited v Pallas Newco Pty Limited [2004] NSWCA 422 that s 101 of the EPA Act protected decisions of a council under that Act from jurisdictional error. Of course the decision in that case was not available at the time of the hearing before the primary judge. 19 As to the natural justice ground, her Honour noted that the appellant relied in the main on the dissenting judgment of Spigelman CJ in Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 at 111 [159], 112 [167] and [174] as support for the proposition that a challenge to a development consent based on a denial of procedural fairness was, by operation of what is known as the threefold Hickman principle (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 per Dixon J). not barred by s 101. On the other hand, the respondents submitted that the dissenting opinion of the Chief Justice in Vanmeld was not binding on her Honour and should not be followed. 20 The threefold Hickman principle was enunciated by Dixon J as requiring a privative clause such as s 101 to be construed as only protecting from challenge a decision that, firstly, is a bona fide attempt by the decision maker to exercise its power, secondly, relates to the subject matter of the legislation and, thirdly, is reasonably capable of reference to the power. The provision does not protect a decision that does not conform to one or more of those conditions or, as they are now referred to, principles. In Vanmeld the Chief Justice considered that the decision in question which was made in breach of the obligation to afford procedural fairness was one which did not conform with the third and possibly the first Hickman principle and therefore was not protected by s 35 of the EPA Act: see at 111 [161]. 21 The primary judge considered (at [24] of the first judgment) that it was not strictly necessary for her to decide definitively whether s 101 excluded all challenges on the basis of breach of natural justice under the EPA Act. She expressed a tentative view to the effect that the threefold Hickman principle did apply to limit the application of s 101 in the context of such a breach. What her Honour meant by this remark is not entirely clear. I assume that, like Pearlman J in Coles Supermarkets Australia Pty Limited v Minister of Urban Affairs and Planning (1996) 90 LGERA 341 at 349, she considered that unless the alleged denial of natural justice was such as to cause the consent to fail to meet the threefold Hickman principle, s 101 barred a challenge on that ground. 22 However, her Honour considered that, as pleaded, the alleged breach of natural justice was not a sufficient breach to warrant holding that s 101 did not apply. Indeed, she said that it was "… debatable on the pleadings that there is any breach of natural justice at all". 23 The relevant allegations in the appellant's Amended Points of Claim relating to the issue of procedural fairness were as follows: "10. On or about 18 May 2000 the Applicant received a Notice from the First Respondent in respect of the Second DA ("the Notice"). 11. There were no plans attached or accompanying the Notice in respect of the Second DA. … 14. On our about 6 June 2000 the applicant's brother on behalf of the applicant attended upon the council chambers and was, after enquiry, unable to inspect the plans of the Second DA. … 20. At the time of the submission of the Second DA, the First Respondent had adopted a Notification DCP under the provisions of the EPA Act. That Notification DCP provided, inter alia: 'Neighbours will be notified about the following items: - a description of the address of the land and the proposed development - the name of the applicant and the consent authority - the location of the consent authority's principal office - details of where the application can be inspected (both at Council offices and at Mosman Library) and the time limits for inspection - how submissions may be made and the specific items of the application to which submissions can be addressed - whether there is a right of appeal for those who submitted an objection. In addition, those being notified will receive: - a reduced (A4) copy of the notification plans (essentially the development footprint, elevations, placement of windows etc.) for that development - information about how to access other documentation lodged in support of the application - those making a submission on the proposed developments will have to lodge their submissions according to the time limits set out above.' 21. In breach of the said DCP the First Respondent did not provide to the Applicant a copy of the Plans for the second DA and did not have available for inspection at the Council Chambers a copy of the said Plans. 22. In the Premises the Applicant was denied the opportunity to make submissions to the First Respondent as to the nature of the unacceptable impact of the proposed development upon the property. 23. The applicant claims she was denied Natural Justice and/or procedural fairness." 24 Her Honour's comment to the effect that it was debatable whether, on the pleadings, there was any breach of natural justice was, in all probability, premised upon the fact that the appellant did receive notification of the application on or about 18 May 2000 and the assumed fact (because the contrary was not pleaded) that that notice contained the first six requirements referred to in that part of the Notifications DCP set out in paragraph 20 of the Amended Points of Claim. The only non-compliance with the Notifications DCP alleged is the seventh item referred to in that paragraph. 25 Furthermore, apart from the fact that it was not admitted that a reduced copy of the notification plans had not been forwarded by the Council to the appellant, the further allegation in paragraph 21 of the Amended Points of Claim that the Council "did not have available for inspection at the Council Chambers a copy of the said Plans" was hardly supported by the specific allegation in paragraph 14 that on the one occasion when the appellant's brother sought to inspect the plans, they were unavailable. This particular unavailability may not be surprising as the Notifications DCP provided for the making of submissions within a period of 14 days from the date of notification which, if the commencement of the period was 18 May 2000, expired on 1 June 2000; whereas the appellant's brother did not seek to inspect the plans for a further five days. In this respect I have assumed that the time limits for inspection of the plans referred to in the fourth item referred to in paragraph 20 of the Amended Points of Claim coincided with the 14 days within which submissions could be made. Certainly, there was no allegation in the Amended Points of Claim that suggested otherwise. 26 In this context her Honour (at [25]) considered that the process of statutory construction undertaken by the Chief Justice in Vanmeld was not likely to give rise to a finding in the present case that procedural fairness had not been observed. She continued (at [26]): "The alleged breach of natural justice relates to the breach of the Council's Notification Development Control Plan. Assuming that the Applicant is able to prove its case as pleaded, it is clear that there has not been a manifest failure to comply with the provisions of the Notification Development Control Plan on the part of the Council. At best, there may be irregularities which the Applicant could have overcome relatively easily by, for example, attending or having her agent attend at the Council chambers on another occasion to inspect the relevant plans." 27 After referring to her "tentative finding" that the threefold Hickman principle applied so that a challenge on the basis of a breach of natural justice was not necessarily excluded by s 101, her Honour noted that the reasoning of the Chief Justice in Vanmeld on which the appellant relied had not been followed in either the Land and Environment Court or the Court of Appeal. As to the latter, her Honour referred to the opinion of Powell JA in Vanmeld (at [189]), repeated by him in Sericott (at 67-78), that provisions such as s 101 are time limited or time barred provisions rather than privative provisions, an approach now rejected by the Chief Justice, with whom Mason P, Sheller JA and Cripps A-JA agreed, in Woolworths (at [82]). 28 Notwithstanding that the Chief Justice in Vanmeld held that it was wrong (at 111 [164]), the primary judge then cited the judgment of Pearlman J in Coles Supermarkets at 349 as "quite persuasive". Her Honour then concluded (at [33]) with respect to the natural justice ground that she would find in favour of the respondents presumably upon the basis that it was not suggested that the grant of the consent did not pass the threefold Hickman principle. 29 As to the challenge to the validity of the construction certificate, her Honour held (at [36]) that that challenge was not barred by s 101. The respondents have not cross-appealed that decision. 30 Accordingly, the natural justice issue fell away and, as a consequence, further amendments were made to the Points of Claim pursuant to leave granted by the primary judge on 9 April 2003. In particular, it was now alleged that some 14 items of work had been constructed otherwise than in accordance with the plans approved by the consent and/or the related construction certificate. Furthermore, five items referred to in the plans the subject of the construction certificate were said to be inconsistent with those the subject of the consent. The allegation was repeated that the construction certificate was invalid as being inconsistent with the consent and, therefore, in breach of Regulation 145(1)(a). In the alternative, it was alleged that the issue of the construction certificate was not one which was reasonably open to the Council and was therefore manifestly unreasonable in the Wednesbury sense.

The findings of the primary judge in her judgment of 29 March 2004 (the second judgment) 31 The first ground of challenge to the validity of the construction certificate dealt with by the primary judge was the allegation that it was inconsistent with the consent and, therefore, in breach of Regulation 145(1)(a). That provision is in the following terms: "(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: (a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent." 32 The thrust of the appellant's argument on this issue was that the Land and Environment Court should determine for itself whether the design and construction of the building as depicted in the plans and specifications furnished to the certifying authority for the purpose of the issue of the construction certificate were consistent with the development consent. In other words, it was asserted that lack of inconsistency was a jurisdictional fact which was required to be determined objectively before the Council (or its delegate) was empowered to issue a construction certificate. 33 The primary judge observed (at [8]) that Regulation 145(1)(a) turned on the satisfaction of the certifying authority and that it was, therefore, not open to the Land and Environment Court to review whether or not that authority was correct in being satisfied that the design and construction of the building was not inconsistent with the consent unless that decision was based on some legal error. 34 The appellant's second argument (which I find difficult to differentiate from the first) was that the Council's satisfaction that the design and construction of the building was not inconsistent with the consent was a preliminary finding to the issue of a construction certificate and, therefore, a jurisdictional fact. Accordingly, so the argument ran, the Land and Environment Court was able to reach its own determination as to whether "such a fact exists". The appellant relied on the decision of Ipp JA in Chambers v Maclean Shire Council (2003) 57 NSWLR 152 at 169 [47] adopting the statement of Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 65 [44] that, "… if the factual reference is preliminary or ancillary to the exercise of a statutory power"

the conclusion is likely to be that it is a jurisdictional fact. 35 The Council submitted that Regulation 145(1) did not involve jurisdictional facts as it referred only to the need for the certifying authority to be "satisfied" with certain matters. Further, it was submitted that "consistent with" did not mean "precisely the same as" or "identical with". It was further submitted that the scheme of the EPA Act makes it clear that there would be differences between the plans the subject of a development consent and those the subject of a construction certificate as to, amongst other things, the level of detail. 36 The primary judge held (at [11]) that the decision mandated by Regulation 145(1)(a) did not involve a jurisdictional fact. After considering the legislative context in which construction certificates were issued, her Honour concluded (at [17]) that the scheme provided "that it is the certifying authority's opinion which is relevant to the issue of a construction certificate." 37 Her Honour distinguished Chambers as being concerned with a different scheme which did not provide for the council to form an opinion as to, or to be satisfied with respect to, the identified matters before it could exercise the power to grant the relevant consent. In the present case, it was for the certifying authority to be "satisfied" of the relevant matters and, as her Honour concluded (at [17]) "[w]hether the certifying authority is so satisfied is plainly a matter for its opinion." 38 It followed that the Council's satisfaction that the design and construction of the building as depicted in the plans and specifications furnished to the certifying authority were not inconsistent with the consent did not involve a jurisdictional fact which required the Land and Environment Court itself to determine whether such an inconsistency existed. 39 Before the primary judge and in her written submissions on the appeal, reliance was placed by the appellant on the fact that Mr Briggs, who was the person delegated by the Council to issue construction certificates and who had issued the subject certificate, had not been called to give evidence. In this respect, the appellant had called evidence from a planning consultant, Mr Euludag, with respect to what he considered to be inconsistencies between the plans the subject of the construction certificate and those the subject of the consent. Evidence to counter that of Mr Euludag was called on behalf of the second respondents but none was called by the Council. It was submitted, in reliance upon Jones v Dunkel (1959) 101 CLR 298, that the failure of the Council to call Mr Briggs enabled the Court to infer that he would not have assisted the Council's case. It was therefore submitted that the Court should accept the opinion of Mr Euludag in the absence of any contrary expert opinion proffered by the Council. 40 In reply, the Council argued that it was for the appellant to establish on the balance of probabilities that Mr Briggs did not have the requisite state of satisfaction required by Regulation 145(1)(a) when he determined to issue the construction certificate. It submitted that the onus of proof could not be satisfied by simply calling another expert whose opinion apparently differed from that of Mr Briggs. The Council further argued that the scheme contained in the EPA Act and the Regulation in relation to the issue of construction certificates emphasised that certifiers such as Mr Briggs were required to have expertise in building processes and to have intimate knowledge of the requirements of the legislation that needed to be fulfilled before a construction certificate could be issued. 41 After referring to a passage from the joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [47], her Honour concluded in these terms (at [28]): "In the context of this case where the decision to issue a construction certificate requires an application of expertise to the issue of whether there is consistency between a development application and a construction certificate, and where the certifying authority is the Council who issued the development consent, the considerations referred to in Enfield are pertinent. I will apply this in deciding whether or not the Council's actions were manifestly unreasonable in ground 3." 42 It would seem at least on one view, that the relevance of the failure to call Mr Briggs was relied upon by the appellant before the primary judge on the issue of whether Mr Briggs' "satisfaction" of the matter referred to in Regulation 145(1)(a) was Wednesbury unreasonable. This certainly seems to be the basis upon which his absence was relied upon in the appellant's written submissions on the appeal. On the other hand, there is a hint in [21] of the second judgment that the absence of Mr Briggs may have borne upon the issue of whether he in fact had the requisite state of satisfaction contemplated by Regulation 145(1)(a). In this respect, it seems to me that the only jurisdictional fact arising out of that provision is that the certifying authority (in this case Mr Briggs) must in fact be satisfied of the matters referred to but if he is, then the jurisdictional fact is established. 43 Support for the foregoing is to be found in the following observations of Spigelman CJ in Woolworths at [25] where he said: "A criterion expressed in terms of the opinion or satisfaction of a decision-maker may be a jurisdictional fact of a special kind, one more readily established. (See, e.g. City of Enfield at [34]; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198 per Gummow J; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 291 at 303.) The Court may subject the opinion to judicial review. It will not determine whether the development was, in fact, consistent with the objectives of the zone." 44 Furthermore, in Moy v Warringah Council (2004) 133 LGERA 49 at 60 [62], Sperling J, with whom Sully and Simpson JJ agreed, held that Regulation 145, in contrast to s 96 of the EPA Act, "calls for a finding of fact by a tribunal (the court) as to whether another person (the certifying authority …) was satisfied that the variation, in nature and degree, was allowable. In one case [s 96] it is a tribunal's own opinion that counts. In the other [Regulation 145], it is a tribunal's finding of fact as to the opinion of the certifier that counts." 45 It is to be noted that the Further Amended Points of Claim do not allege that Mr Briggs did not have the requisite state of satisfaction called for by Regulation 145(1)(a). Nor do the appellant's written submissions assert that he did not. It seems inferentially that the primary judge found that he did or, at the very least, was not satisfied that he did not. 46 In any event, in my opinion there was evidence that Mr Briggs had satisfied himself of the relevant matters. The construction certificate issued by him on 4 December 2000 was in these terms: "I certify that the work if completed in accordance with these plans and specifications will comply with the requirements of Section 81A(5) of the Environmental Planning and Assessment Act, 1979." 47 The plans and specifications referred to are identified in the Notice to Applicant of Determination of a Construction Certificate and are the plans alleged by the appellant to be inconsistent in various respects with those the subject of the consent. 48 Section 81A(5) provides as follows: "The regulations may make provision concerning the issue of certificates for the erections of buildings … "

One of those regulations is Regulation 145(1). Accordingly, it seems to me that Mr Briggs was certifying that the identified plans and specifications would comply with the requirements of, inter alia, that regulation. In so doing, he was certifying that he was satisfied of the matters referred to in sub-paragraph (a). There was therefore no need to call Mr Briggs on this issue. It was established by the terms of the certificate itself. In any event, as I understand the appellant's argument on the appeal, this point was not pursued or otherwise put in issue. 49 The next issue addressed by her Honour was the allegation that the issuing of the construction certificate was manifestly unreasonable. Her Honour considered the issue at [32]-[49] of the second judgment, concluding that she did not consider that Mr Briggs' satisfaction, that the items identified by Mr Euludag were not inconsistent with the consent, was so unreasonable that no reasonable authority could have arrived at that conclusion. 50 Although the appellant's amended notice of appeal challenged this finding, and it was addressed in her written submissions, the issue of manifest unreasonableness was abandoned at the hearing and need not be further considered. 51 The primary judge then considered whether there were any aspects of the work which neither the consent nor the construction certificate approved. Her Honour concluded that four items of work fell into this category. However, in the exercise of her discretion, she did not require them to be demolished. Accordingly, she merely declared three of those items to have been carried out without consent. She further ordered that the second respondents install certain shutters on the eastern side of the front eastern balcony within three months of the date of her judgment. We were informed that this order had been complied with. This declaration is not the subject of any cross-appeal by the second respondents.

The issues on the appeal 52 At the end of the day, the live issues on the appeal resolved into two: the first was whether the primary judge erred in holding in her first judgment that a denial of procedural fairness to the appellant was excluded by the operation of s 101. The second was the challenge to her Honour's finding that the alleged requirement in Regulation 145(1)(a) for there to be no inconsistency between the plans the subject of the construction certificate and those the subject of the consent was not a jurisdictional fact which the Land and Environment Court could and should determine for itself.

The first issue - is s 101 of the EPA Act a bar to a challenge to the validity of a development consent on the ground of denial of procedural fairness? 53 The resolution of this issue raises some difficulties given that there were no findings of fact made by the primary judge at the time of the first judgment so that her decision was based solely on the allegations contained in the Amended Points of Claim. Furthermore, her Honour's reasoning is not entirely satisfactory if only because, firstly, she seems to have taken the prima facie view, without hearing evidence, that there was no breach of procedural fairness even if the allegations contained in the pleadings were established and, secondly, she only expressed a tentative view to the effect that, subject to the consent meeting or conforming to the threefold Hickman principle, s 101 excluded a challenge to its validity based on a denial of procedural fairness. 54 So far as the first of these points is concerned, regrettably this Court has no choice but to determine the first issue upon the relevant allegations in the pleadings. Those allegations are, in turn, based upon non-compliance in one respect with Council's Notifications DCP. The Court must assume from the pleadings that the appellant received notification of the application which complied with the requirements of the DCP in respect of the items to be notified. That included details of where the application could be inspected and the time limits for inspection. Unfortunately there is no allegation as to the latter and whether it expired before or after 6 June 2000 when the appellant's brother attended the Council Chambers but, after inquiry, was unable to inspect the relevant plans. As I have noted in [25] above, it is probable that the time for inspection expired simultaneously with the expiry of the 14 days within which submissions were required to be made. 55 However, paragraph 21 of the Amended Points of Claim alleges that the Council did not have available for inspection at the Council Chambers a copy of the plans. For present purposes, this Court must take the pleading at its widest. It therefore is to be treated as an allegation that, contrary to the provisions of the Notifications DCP, the Council did not have available for inspection at the Council Chambers a copy of the plans at any time within the timeframe for inspection notified to the appellant on 18 May 2000. This seems unlikely, but nevertheless it is the basis upon which this issue must be decided. 56 In Vanmeld the Chief Justice (at 91 [50]) noted that the "obligation to afford procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard." 57 At the material times the EPA Act contained a provision which gave statutory force to that common law principle. Section 79A(2) provided as follows: "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." 58 It was eventually accepted by the appellant that the application was for "specified development" within the meaning of that provision. Further, the Notifications DCP was a development control plan which provided for the notification of such an application. Accordingly, s 79A(2) mandated that the application be "notified … in accordance with the provisions of" the Notifications DCP. Those provisions required those notified to be provided with a reduced (A4) copy of the relevant plans. 59 The provision of a reduced copy of the plans was an important inclusion with the letter of notification as it would enable the recipient to immediately, and at least tentatively, ascertain whether the proposed development was likely to impact upon that person's amenity. The recipient of the notice and plans could then inspect the full sized plans at the Council Chambers in order to determine whether that tentative view should be confirmed. If it be proved that the reduced copy of the plans was not provided to the appellant by the Council, then it would have been in breach of s 79A(2) of the EPA Act. Whether such a breach would, of itself, lead to invalidity of the consent is more problematic: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-390 [91], [93]; Smith v Wyong Shire Council (2003) 132 LGERA 148 at 151 [6]-[7]; 181-182 [166]-[168]. However, I note that no such breach and consequential invalidity of the consent has been pleaded; nor was the provision referred to by the primary judge no doubt because it probably was not brought to her attention. 60 In any event a breach of s 79A(2) does not necessarily lead to the conclusion that there has been a denial of procedural fairness. It is possible to envisage a non-compliance with a requirement of the Notifications DCP that would be regarded as minor, such as the failure to notify the location of the consent authority's principal office. 61 The Notifications DCP sets out some nine items under the heading "What will they [the neighbours] be notified about?". It would be a matter for argument as to whether the failure to comply with one or more of those items would result in a denial of procedural fairness. It is well established that the content of the duty to afford procedural fairness depends on the circumstances of the case. It was described by Mason J in Kioa v West (1985) 159 CLR 550 at 584-5, in a passage cited with apparent approval by Spigelman CJ in Vanmeld (at 92-93 [54]), in these terms: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention … Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute … What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision maker is acting … In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual concerned in the light of the statutory requirements, in the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations." 62 Again, in a passage cited by the Chief Justice in Vanmeld (at 93 [58]) in Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 at 609 Brennan CJ, Dawson and Toohey J observed: "It should not be assumed that the exercise of a power conferred in general terms cannot be confined by the procedures adopted by a repository. If the power must be exercised in conformity with the rules of natural justice, a failure by the repository to adhere to a declared procedure may constitute or result in a failure to accord natural justice to a person whose interests are liable to affection by the exercise of the power." 63 In the present case, the Notifications DCP sets out the "declared procedure" adopted by the Council and represented to the public as being the procedure it will follow with respect to the notification to neighbouring land owners of the making of a development application: see EPA Act s 72(4)(a). 64 In the present case, it is inappropriate to express any findings as to whether any particular non-compliance with the Notifications DCP (including that alleged in paragraph 21 of the Amended Points of Claim) amounts to a denial of procedural fairness. I would have little doubt that, if it is established (as apparently alleged) both that no plans were sent with the letter of notification and at no time during the period notified by the Council as available for inspection of the plans were they in fact available, then a denial of procedural fairness could be established. But if those assertions are not proven, then other considerations may arise for determination. Nothing in these reasons should be taken as indicating any view of mine, whether tentative or otherwise, on that issue. 65 On the assumption that there has been a denial of procedural fairness, the question arises as to whether s 101 of the EPA Act excludes a challenge so based. 66 In Vanmeld only the Chief Justice dealt with the issue under consideration. His Honour commenced this part of his judgment by reference (at 103 [115]) to the "right of individuals to approach the courts to enforce the law, not least to ensure that the executive arm of government exercises its power in accordance with law, is a fundamental right of constitutional significance." 67 As his Honour recognised (at 109 [149]), "[a]mongst the fundamental principles which are secreted within the law of statutory interpretation are the right of access to the courts and the duty to accord procedural fairness to persons affected by administrative decisions." 68 The Chief Justice then considered (at 111 [160]) that breach of the requirement of procedural fairness has generally been assimilated with jurisdictional error in its original narrow sense. He then observed: "161. Indeed, breach of the common law obligation of procedural fairness may fall within the R v Hickman principle, as it has been interpreted and extended beyond the original threefold formulation of Sir Owen Dixon. In O'Toole Deane J, Gaudron J and McHugh J contemplate that rules of procedural fairness could be encompassed within the third R v Hickman principle, that is, 'reasonably capable of being referred to the power' (at 287.5). Dawson J suggested that some aspects of procedural fairness fell within the concept of bona fides (at 305.5). 162. Furthermore, the requirements of procedural fairness which the common law attaches to the exercise of all public power, fall within the scope of the general description of the R v Hickman principle found in some recent judgments. Subject to 'express words of plain intendment' … procedural fairness can be described as an 'inviolable limitation or restraint' … or as a defect which does 'deny the power' … " 69 The Chief Justice then considered (at 112 [167]) that the: "… words of section 35 [of the EPA Act] do not reflect a 'plain intendment' to impinge on the fundamental principle reflected in the requirements of procedural fairness. In reaching this conclusion I have given particular weight to the following aspects of the legislative scheme." 70 Having referred to a number of sections of the EPA Act dealing with the public exhibition process with respect to a draft local environmental plan, his Honour concluded in these terms (at 112): "173. All of these factors mitigate the degree of inconvenience which may be caused to the implementation of an environmental planning instrument by permitting challenges to such instruments after three months. 174. However, it is the importance that Australian case law on procedural fairness has given to the presumption that parliament does not intend to abrogate the common law duty to accord procedural fairness in the exercise of public power, which determines the outcome of this case. The law of statutory construction requires that a privative clause should be subject to a particularly strict construction when the issue is whether parliament intended an ouster or privative clause to impinge on the applicability of fundamental principles. The Environmental Planning and Assessment Act does not contain a sufficient indication that such was intended." 71 In Woolworths, the Chief Justice revisited his judgment in Vanmeld on this issue. On this occasion he was directly concerned with s 101 of the EPA Act. At [69] his Honour reiterated the principle that privative clauses are strictly construed. Accordingly, "a clause which seeks to protect a 'decision' or a 'determination' is read down so it does not have the effect of protecting a decision or determination affected by jurisdictional error." 72 Authority for the foregoing principle was recently confirmed in the joint judgment of Guadron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 500 [57], 505 [72]. The Chief Justice noted [at [70]) that that decision affirmed that the privative clause in that case did not protect decisions which involved a failure to exercise jurisdiction or an excess of jurisdiction. However, his Honour considered that this formulation did not necessarily coincide with those matters identified as "jurisdictional errors" in administrative law. 73 The Chief Justice then observed (at [57]) that s 101 did not constitute an absolute bar to challenges to the validity of council decisions. On the contrary, it permitted any form of challenge within a three month period of the decision being advertised. Accordingly, consistent with his observations to the same effect in Vanmeld at 106 [131]-[132], his Honour considered that there was "not the same compulsion to strictly construe the section by reason of the application of the principle of statutory construction that Parliament does not intend to deny access to the Courts save by clear and unmistakable words". 74 His Honour then noted that s 101 refers to questioning "the validity of the consent". This consideration coupled with the fact that s 101 did not constitute a complete bar, led the Chief Justice to conclude (at [79]) that the word "validity" in s 101, which permits challenge for a discreet period, was in his Honour's opinion, "intended to protect decisions from jurisdictional error". Accordingly, it extended to what he referred to in Vanmeld as a "purported consent". The Chief Justice therefore considered that he should qualify some of the views he expressed in Vanmeld to the effect that s 35 of the EPA Act did not extend to the questioning of a "purported environmental planning instrument". 75 Finally, on this point, the Chief Justice confirmed (at [83]) the opinion he expressed in Vanmeld that the Hickman principle does apply after the expiration of the three month period. He then continued: "84. There has been no suggestion in the present case that the privative cause could be overcome by operation of the threefold Hickman principle or by reason of an 'imperative duty' or 'inviolable restraint'. Although there remains some scope for uncertainty, and therefore for inconvenience, because of the possibility that the privative cause may not apply, any uncertainty would be in a very narrow compass because of the restricted basis on which the Hickman principle applies."

Mason P, Sheller JA and Cripps A-JA agreed with the reasons of the Chief Justice. 76 The effect of the Chief Justice's discussion in Woolworths with respect to s 101 is that the section does extend to protect decisions from jurisdictional error at least where that expression is used in the wider sense. However, the provision does not, even after the expiration of the three month period, extend to protect decisions that do not conform to the threefold Hickman principle, namely, where it is manifest that the decision is not a bona fide attempt to exercise the power; where it does not relate to the subject matter of the legislation; or where it is not reasonably capable of reference to the power given to the decision-maker. Furthermore, it does not protect against breach of, or non-compliance with, a restriction or requirement which is construed as being of such significance in the legislative scheme that it constitutes a limitation or requirement that is variously expressed in the authorities as "essential", "indispensable", "imperative" or "inviolable". 77 Although the Chief Justice was not concerned in Woolworths with a provision such as s 79A(2) or the common law duty to afford procedural fairness, nonetheless I see no inconsistency between his discussion concerning s 101 in that case and his conclusion in Vanmeld that s 35 of the EPA Act did not protect against a challenge based on denial of procedural fairness. His Honour has made it plain that s 101 is subject to the operation of the threefold Hickman principle and/or a restriction on, or a requirement of, the exercise of an administrative power which amounts to an "imperative duty" or "inviolable restraint". When that conclusion is coupled with his statement in Vanmeld (at 111 [162]) that procedural fairness can be described as an "inviolable limitation or restraint", it must follow that s 101 does not protect against the breach of such a fundamental requirement. 78 That would be particularly so where there has been a complete denial of procedural fairness such as the failure to notify neighbours at all as required by the Notifications DCP so that persons in the position of the appellant would not become aware within the three month period that a consent had been granted, let alone aware of the nature of the proposed development and its impact. 79 Accordingly, in my opinion and subject to proof of the necessary facts, the appellant's challenge to the validity of the consent on the basis that she was denied procedural fairness, if established, is not protected by s 101 of the EPA Act and the primary judge erred in finding to the contrary. It follows that the Land and Environment Court had jurisdiction to hear and determine that issue and the proceedings should therefore be remitted to that Court to enable the issue to be litigated.

The second issue - does Regulation 145(1)(a) require, as a jurisdictional fact, that the Court determine for itself that the plans the subject of the construction certificate are not inconsistent with those the subject of the consent? 80 The appellant submitted that the issue by Mr Briggs as the delegate of the Council of the construction certificate was invalid as the plans the subject of that certificate were inconsistent with those the subject of the consent. It was in this context that the appellant asserted that Regulation 145(1)(a) "generated jurisdictional facts". 81 As I have already observed evidence was given on behalf of the appellant by Euludag, who was a qualified certifying authority, that there were two significant inconsistencies and numerous minor inconsistencies between the construction certificate plans and the plans the subject of the consent. Accordingly, so it was submitted, there was a breach of Regulation 145(1)(a). As I understand the submissions that were made to the primary judge, the last-mentioned contention was allied with a submission that a finding that the plans the subject of the construction certificate were "not inconsistent" was necessary before the power of the Council to issue the certificate was enlivened. Accordingly, it was the duty of the Court to determine this fact for itself based on the evidence before it. 82 The primary judge rejected this submission and in my opinion she was correct in so doing. Although pursuant to s 123 of the EPA Act any person may institute proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the Act, including the regulations made under it, whether or not there is a breach of a provision of the Act will depend in part on the proper construction of the provision in question. Thus the primary judge held that Regulation 145(1)(a) was not breached if all that was alleged was that the plans the subject of the certificate were inconsistent with those the subject of the consent. This was because, as her Honour held (at [8]), the provision, on its true construction, turns on the satisfaction of the certifying authority as to a particular state of affairs so that, provided it is so satisfied, then the provision is complied with. 83 In her written submissions to this Court the appellant submitted that in ascertaining whether there had been a breach of Regulation 145(1)(a) her Honour was required to have regard to the facts and to decide for herself the true position. This was because those facts were jurisdictional facts upon which the Court was required to adjudicate. It was further submitted that whilst Regulation 145(1)(a) requires the certifying authority to be "satisfied" of certain matters, this alone could not determine whether the requirement to be "satisfied" was one entirely for the certifying authority or was a jurisdictional fact to be determined by the Court. 84 In my opinion, there is a degree of confusion in the above submission. As I have already observed (see [41]-[43] above), there is a jurisdictional fact involved in Regulation 145(1)(a), namely, whether the certifying authority (in this case Mr Briggs) was in fact satisfied of the relevant matters. Once that factor was established, the jurisdictional fact was established. 85 Accordingly, in terms of the first sentence of the quotation from the judgment of the Chief Justice cited in [42] above, in the present case the jurisdictional fact which was of a "special kind" and "readily established", was the holding by Mr Briggs of the relevant degree of satisfaction. It is true that Mr Briggs' opinion encapsulated in that level of satisfaction was open to challenge on the basis that it was manifestly or Wednesbury unreasonable, an issue determined by her Honour against the appellant and which is no longer challenged. In these circumstances, the primary judge was correct when she held that the Court would not determine whether the plans the subject of the construction certificate were in fact not inconsistent with those the subject of the consent. 86 Nevertheless, the appellant relied upon the statement of the Chief Justice in Woolworths (at [48]) that the "extrinsic or ancillary or preliminary nature of the relevant fact makes it more likely that the fact is jurisdictional". She submitted that the satisfaction of the certifying authority that the plans the subject of the construction certificate were "not inconsistent" with the consent was an extrinsic ancillary or preliminary fact which was required to be satisfied before the certifying authority was empowered to issue the certificate. The difficulty with this submission is that it depends on what is the "relevant fact". 87 Although in Woolworths the Chief Justice observed (at [49]) that a "… factual reference that is appropriately characterised as preliminary or ancillary to the decision-making process or which is, in some other manner, extrinsic to the facts and matters necessary to be considered in the exercise of the substantive decision-making process itself, is a reference of a character that the Parliament intended to exist objectively",

his Honour also recognised (at [56]) that where issues of fact and degree arise, it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than error going to jurisdiction. 88 Further, at [58] the Chief Justice acknowledged that an environmental planning instrument may require the assessment of a wide range of matters of considerable complexity involving the formation of value judgments which were unlikely to involve a jurisdictional fact. At [60] his Honour exemplified the number of situations that involved matters of judgment which had been held to be jurisdictional. But none of them involved a requirement that the decision-maker be "satisfied" as to the existence of certain facts or hold an "opinion" with respect to those facts. In my opinion, upon the basis of the Chief Justice's judgment in Woolworths, the only jurisdictional fact required to be objectively determined pursuant to Regulation 145(1)(a) was that the certifying authority be "satisfied" of the relevant matters. Once that state of satisfaction is held to exist, that is the end of the inquiry subject only to judicial review on conventional administrative law grounds. 89 Accordingly, it is clear that whether or not the plans the subject of the construction certificate were in fact "not inconsistent" with the plans the subject of the consent was not a jurisdictional fact which Regulation 145(1)(a) required the court to determine for itself. In my opinion the primary judge was correct to reject the appellant's argument to the contrary.

Costs 90 In a supplementary judgment of 2 August 2004, the primary judge considered the question of costs. Given that the respondents had succeeded in persuading her Honour that the effect of s 101 of the EPA Act was to bar that part of the proceedings based on a denial of procedural fairness, her Honour ordered that the appellant pay the second respondents' costs up to and including 9 April 2003, being the date of her judgment on that issue. Insofar as the costs subsequent to that date were concerned, her Honour ordered the appellant to pay 70% of the second respondents' costs. She further ordered the appellant to pay the second respondents' costs of their notice of motion dated 18 May 2004 in which orders for costs were sought. 91 The hearing which led to the second judgment was, as her Honour noted, generally occupied by issues relating to the validity of the construction certificate upon which the appellant was unsuccessful before her Honour and, in my opinion, should be unsuccessful on appeal. Given that at the hearing of the appeal the appellant abandoned her challenge to the finding of the primary judge in the second judgment that the decision of the Council's delegate (Mr Briggs) to issue the construction certificate was not Wednesbury unreasonable, it follows that all the issues the subject of the Further Amended Points of Claim and which were the subject of the second judgment have now been finally resolved generally in favour of the respondents. Accordingly, any remitter with respect to the only issue upon which in my opinion the appellant has been successful, will be confined to the issue of whether the appellant was denied procedural fairness and, if so, what relief, if any, should flow therefrom. 92 In the foregoing circumstances, it seems to me that her Honour's costs order with respect to the period after 9 April 2003 should stand and only her order with respect to the costs up to and including 9 April 2003 should be disturbed. However, the parties were in agreement that in the event that the appeal succeeded and notwithstanding that that success was confined to the procedural fairness issue, nonetheless her Honour's orders for costs should be set aside and the costs at first instance should be reconsidered in the light of the determination of the issues on remitter. 93 I am prepared to accede to this agreement but I do note the fact that the only issue now outstanding is that relating to procedural fairness whereas those issues which were the subject of the proceedings after 9 April 2003 have been finally resolved in a manner which does not differ from the primary judge's decision therein. Accordingly, there seems no good reason why her Honour's costs order with respect thereto should be disturbed. However, in the circumstances, this is a matter that will be left to the Land and Environment Court. 94 So far as the costs of the appeal are concerned, two grounds of challenge in the written submissions were abandoned, namely, whether s 101 of the EPA Act protected the consent notwithstanding that the Council's delegate had no authority to grant it and whether Mr Briggs' decision to issue the construction certificate was Wednesbury unreasonable. In my opinion the costs associated with these abandoned grounds of appeal should be paid by the appellant. 95 That left two issues to be determined on the appeal. The first was whether a denial of procedural fairness was barred by s 101, an issue upon which the appellant has succeeded. The second was whether Regulation 145(1)(a) gave rise to a relevant jurisdictional fact upon which the appellant has been unsuccessful. Both sides were partially successful with the consequence that each should bear her, their or its costs of the appeal.

Conclusion 96 In light of the foregoing, I would propose the following orders: (1) Appeal allowed in part; (2) Orders made by Pain J on 2 August 2004 with respect to the costs of the proceedings at first instance be set aside; (3) Declare that s 101 of the Environmental Planning and Assessment Act 1979 does not prevent the Land and Environment Court from determining whether the appellant was denied procedural fairness as alleged by her in her Amended Points of Claim dated 2 October 2002; (4) Order that the issue of whether the appellant was denied procedural fairness and, if so, what relief (if any) should be granted as a consequence thereof be remitted to the Land and Environment Court for determination; (5) Order that the costs of the proceedings to date before Pain J be determined by the Land and Environment Court at the conclusion of the remitter proceedings; (6) Order that the appellant pay the respondents' costs with respect to those grounds of appeal which were abandoned at the hearing of the appeal but that otherwise each party pay her, their or its own costs of the appeal.

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