Lisarowraid Incorporated (Inc) v Gosford City Council

EX TEMPORE Judgment 1By a summons filed on 13 September 2012, Lisarowraid Incorporated (Inc) seeks a declaration that a development consent granted by Gosford City Council on 28 May 2012 is invalid. The respondents to the proceedings are the Council and A R Harrison, the holder of the development consent. 2The parties came before me today with a request that I accede to the applicant's application by making a declaration of invalidity of the development consent. As the jurisprudence directed to the making of declarations establishes, it is not generally appropriate to make a declaration by consent. Rather, I must be satisfied on evidence adduced before me that it is appropriate so to do. 3The parties have endeavoured to aid that process by not only providing what, in effect, is a joint submission in respect of the matter, but also by providing evidence to establish that there has been a breach of the Environmental Planning and Assessment Act 1979 (the EPA Act), having regard to the manner in which the Council determined to grant development consent to the second respondent. It is convenient to state briefly the facts which are established before me. 4In February 2010, a development application was lodged with the Council seeking consent for the establishment of an 800 seat place of public worship. The land to which the development application related was located in McDonald's Road, Lisarow. 5Following consideration of the application, reports were prepared for the Council by its staff. The process of consideration extended over a period of two years but relevant for present purposes are several reports considered by the Council in April and May of 2012. It is unnecessary to recite all of that occurred in meetings during those months. For the earlier meetings, a report had been prepared by staff which appeared to reflect a consideration of the application by reference to matters identified in s 79C of the EPA Act. Against the possibility that the Council did not accept the recommendation in the reports that consent be refused, proposed conditions of consent were also provided to the Council. 6The critical decision by the Council occurred on 8 May 2012. The report before the Council on that occasion recommended that development consent be refused. Notwithstanding that recommendation, the resolution then adopted by the Council was in the following terms: "A Council, support DA 38140/10 for proposed Place of Public Worship on Lots 2 & 3 DP 3334HN 131 & 147 MacDonalds Road Lisarow and the General Manager or his representative be delegated authority to determine the application for approval subject to conditions contained within the report. B The conditions are also to address the following matter:- The amendment of condition 8.10 to address the issue of the provision of acoustic fencing along the MacDonalds Road frontage and the eastern boundary of house No 119. C The applicant be advised of Council's decision and of their right to appeal to the Land & Environment Court within 12 months after the date of determination. D The objectors be advised of Council's decision." 7Thereafter and conformably with the resolution of 8 May, the General Manager of the Council purported to grant development consent for the place of public worship, that consent being notified to the second respondent by a Notice of Determination dated 28 May 2012. The Notice indicates that the consent was granted on that day. It would appear from the Notice that the General Manager addressed the conditions required to be addressed by paragraph B of the resolution adopted on 8 May 2012. 8The submission embraced by all parties is, in short, that the delegation purportedly given to the General Manager by the resolution of 8 May was invalid and of no effect as being beyond power. Secondly, it is submitted, that resolution imposed a fetter upon the exercise of discretion given to the General Manager which was not authorised by the provisions of the EPA Act. On either basis, a breach of the EPA Act had occurred. 9It is submitted that the only power which could properly be exercised by the Council was either to determine the development application itself, conformably with s 80 of the EPA Act, or delegate to the General Manager the power to determine the application in accordance with that section. The exercise of power by the Council or by the General Manager, as its delegate, necessitated a capacity to consider the application as required by s 79C of the EPA Act and then grant consent; grant consent subject to conditions, or refuse the application. The Council did not have power to delegate its function to the General Manager in terms which directed the manner in which the function was to be performed. 10The submission made by the applicant and embraced by the respondents is clearly correct. It is a submission supported by the decision of the Court of Appeal in Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450. Each of the two bases upon which the submission as to invalidity was made in the present case are supported by the determination of the Court of Appeal in that matter (at [53]-[54]). There, the Court was considering a resolution by a council which, in substance, was in the same terms as that in which the resolution in the present case was framed. 11Having regard to the submissions made and the determination in Belmorgan, it is appropriate, subject to the matter to which I will next turn, that these proceedings be determined on the basis that the development consent granted by the Council on 8 May 2012 is invalid. However, before making an order declaring the consent to be invalid I am bound by s 25E of the Land and Environment Court Act 1979 (the Court Act) to consider whether, instead of declaring invalidity, I should consider making an order under Div 3 of Pt 3 of the Court Act. It has not been suggested by any party to the present proceedings that I do not have power to exercise the discretion available under those provisions. 12All parties join in the submission that I should not, in the circumstances that here pertain, make any order under those provisions of the Court Act to which I have referred. I am persuaded that this is the position that I should take. 13Fundamentally, having regard to the terms of the Council's resolution of 8 May, neither the Council nor the General Manager purported to determine the application by considering matters directed to be considered in s 79C of the EPA Act. By refraining from making a decision and purporting to delegate its function, the Council did not do so. Equally, the General Manager was constrained by the resolution from exercising the necessary discretion because of the limited delegation purportedly given to him, namely to grant consent. The failure to consider the application in accordance with s 79C is so fundamental that it would be inappropriate to exercise the discretion available to the Court under Div 3 of Pt 3 of the Court Act. 14There are two further factors of relevance that speak against the exercise of that discretion. First is the circumstance that no party seeks the exercise of that discretion. That is important in the context of the provisions of s 56 of the Civil Procedure Act 2005 which requires that proceedings be resolved in a manner that reflects the just, quick and cheap resolution of those proceedings. Related to that requirement is the second basis upon which I consider it inappropriate to exercise the discretion and that is that each party seeks to bring this litigation to an end without incurring any further costs. The litigation could well be extended and costs incurred if directions are made in accordance with Div 3 of Pt 3 by debate as to the processes necessary to give effect to s 25B of the Court Act with the prospect of further debate as to whether such requirements as may be specified pursuant to that section have been met. 15For all these reasons I am disposed to make the declaration that is sought. The parties have agreed that no order for costs should be made to the intent that each party bear its own costs, with the consequence that there is no further issue to be determined in the proceedings. 16The orders that I make are therefore in the following terms: