Lu v Walding - [2021] NSWLEC 21 - NSWLEC 2020 case summary — Zoe

NSWNSWLEC

Lu v Walding

[2021] NSWLEC 21

Land and Environment Court (NSW)|2020-07-24|Before: Pain J, Community Association DP

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-07-24

Before

Pain J, Community Association DP

Source

Original judgment source is linked above.

Judgment (56 paragraphs)

[1]

RA 133; [2019] NSWLEC 171 Clifford v Wyong Shire Council (1996) 89 LGERA 240 Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11; [2006] NSWLEC 365 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Community Association DP 270253 v Woollahra Municipal Council (2013) 211 LGERA 412; [2013] NSWLEC 184 Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Director General, Department of Health (NSW) v Industrial Relations Commissioner (NSW) (2010) 77 NSWLR 159 Dyason v Butterworth [2015] NSWCA 52 F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306 Fairfield City Council v Ly [2008] NSWLEC 322 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Franklins Ltd v Penrith City Council [1999] NSWCA 134 Georges River Council v Stojanovski [2018] NSWLEC 125 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 Glaser v Poole [2010] NSWLEC 143 GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 Hortis v Manly Council (1999) 104 LGERA 43; [1999] NSWLEC 151 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 King v Great Lakes Shire Council (1986) 58 LGRA 366 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Laremont v Minister for Immigration & Ethnic Affairs (1985) 9 ALN N13; [1985] FCA 602 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; [2005] NSWCA 99 Lithgow City Council v Newera Defendo Pty Ltd [2019] NSWLEC 188 Liverpool City Council v Roads and Traffic Authority (1991) 74 LGRA 265 Liverpool City Council v Roads and Traffic Authority [No 2] (1992) 75 LGRA 210 Lockwood v The Commonwealth (1954) 90 CLR 177; [1954] HCA 31 Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005] NSWCA 455 Manly Council v Hortis (2001) 113 LGERA 321; [2001] NSWCA 81 Manning v Bathurst Regional Council (No 2) (2013) 199 LGERA 147; [2013] NSWLEC 186 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100 Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252; [2016] NSWLEC 26 Nader v Sutherland Shire Council [2008] NSWCA 265 Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 P W Rygate & West v Shoalhaven City Council (1996) 91 LGERA 417 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [2003] HCA 2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Puhlhofer v Hillingdon LBC [1986] AC 484 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53 Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Rivers SOS Inc v Minister for Planning 178 LGERA 347; [2009] NSWLEC 213 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561 Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 Tickner v Bropho (1993) 40 FCR 183 Tickner v Chapman (1995) 57 FCR 451 Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Tweed Shire Council v Taylor [2019] NSWLEC 45 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; [1999] NSWCA 6 VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631; [2003] NSWCA 297 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Waterford v The Commonwealth (1987) 163 CLR 54; [1987] HCA 25 WaterNSW v Harris (No 3) [2020] NSWLEC 18 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Ying v Song [2009] NSWSC 1344 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action & Governmental Liability (6th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: Lin Lu (First Applicant) Frederick Woo (Second Applicant) Adrian Walding (First Respondent) Alexandra Walding (Second Respondent) Northern Beaches Council (Third Respondent) Attorney-General (Intervener) Representation: COUNSEL: N Eastman and N Hammond (First and Second Applicants) T Hale SC (First and Second Respondents) Submitting appearance (Third Respondent) J Emmett (Intervener)

[4]

Judgment

The Applicants Ms Lu and Mr Woo have commenced judicial review proceedings challenging the grant of a development consent to their neighbours Mr and Mrs Walding (the Waldings), the First and Second Respondents, for a garage and other house alterations by the Northern Beaches Council (the Council), the Third Respondent, in May 2017. The Council has filed a submitting appearance.
The Waldings' garage is substantially built but not complete. The garage approved by the Council is located entirely on land owned by the Council being road reserve adjoining Clontarf Street at the front of the Waldings' property at 107 Clontarf Street Seaforth (the Walding Property). It is agreed that the Waldings and the Council were unaware of this fact at the time development consent was granted by the Council.
The Council published a notice of determination of the development consent in the Manly Daily on 8 July 2017. Under s 101 (now s 4.59) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as in force in 2017 any challenge to a development consent must be commenced within three months of the appropriate public notice being given. The question whether these proceedings are time-barred therefore arises. A notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) was prepared by the Applicants on 17 July 2020, stating that a matter had arisen under the Commonwealth Constitution, being whether a privative clause such as s 101 of the EPA Act, which prescribes a time limit for bringing a judicial review action, can compromise or restrict the capacity of a state supreme court including this Court, to exercise its supervisory jurisdiction for review of a jurisdictional error, thereby ousting the jurisdiction of the High Court under s 75(v) of the Commonwealth Constitution. The Attorney-General of NSW (the Attorney-General) has intervened pursuant to s 78A of the Judiciary Act to make submissions on the scope of s 101.
Three grounds of judicial review are contended for by the Applicants. Firstly, that the absence of landowner's consent, being the Council as the landowner, was an absence of a jurisdictional fact that must have had to exist to enliven the Council's power to grant development consent under the EPA Act (Ground 1). Secondly, the Council failed to consider a mandatory relevant consideration as required by s 79C (now s 4.15) of the EPA Act (specifically the likely impacts of the development including environmental, social and economic impacts (subs (b)), the suitability of the site for the development (subs (c)), and the public interest (subs (e)) (Ground 2). Thirdly, the Council's decision was manifestly unreasonable and illogical (Ground 4). The relief sought is a declaration that the development consent is ultra vires and otherwise invalid. If the Applicants are able to pursue these proceedings and are successful on their grounds of judicial review, the issue arises whether the Court should order demolition of the garage in the exercise of its discretion or make alternative orders.

[5]

Environmental Planning and Assessment Act 1979 (NSW)

Relevant sections of the EPA Act as in force at 9 May 2017 provided: Part 4 Development assessment … Division 2 The procedures for development that needs consent … 79C Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. … Division 9 Miscellaneous … 101 Validity of development consents and complying development certificates 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.

[6]

Environmental Planning and Assessment Regulation 2000 (NSW)

Relevant regulations of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) as in force at 9 May 2017 provided: Part 6 Procedures relating to development applications Division 1 Development applications generally … 49 Persons who can make development applications (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land. … 50 How must a development application be made? (1) A development application: (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and … Schedule 1 Forms (Clauses 50, 126 and 139) Part 1 Development applications 1 Information to be included in development application (1) A development application must contain the following information: … (i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner's consent is required by this Regulation, … … 2 Documents to accompany development application (1) A development application must be accompanied by the following documents: (a) a site plan of the land, (b) a sketch of the development, … (2) The site plan referred to in subclause (1) (a) must indicate the following matters: (a) the location, boundary dimensions, site area and north point of the land, (b) existing vegetation and trees on the land, (c) the location and uses of existing buildings on the land, (d) existing levels of the land in relation to buildings and roads, (e) the location and uses of buildings on sites adjoining the land. (3) The sketch referred to in subclause (1) (b) must indicate the following matters: (a) the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land's boundaries and adjoining development, (b) floor plans of any proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building, (c) elevations and sections showing proposed external finishes and heights of any proposed buildings (other than temporary structures), (4) A statement of environmental effects referred to in subclause (1)(c) must indicate the following matters - (a) the environmental impacts of the development, (b) how the environmental impacts of the development have been identified, (c) the steps to be taken to protect the environment or to lessen the expected harm to the environment, (d) any matters required to be indicated by any guidelines issued by the Planning Secretary for the purposes of this clause. …

[8]

Water Management Act 2000 (NSW)

Section 47 of the Water Management Act 2000 (NSW) (WM Act) is relevant to the s 101 submissions of the parties. It provides: Part 1 General … Division 11 Miscellaneous … 47 Validity of management plans and exercise of plan-making functions (1) The validity of a management plan may not be challenged, reviewed, quashed or called into question before any court in any proceedings, other than before the Land and Environment Court in proceedings commenced within the judicial review period. (2) The judicial review period in respect of a management plan is - (a) the period of 3 months after the date the plan was published on the NSW legislation website, except as provided by paragraph (b), or (b) in relation to a provision of the plan that was inserted by an amendment of the plan (other than an amendment under section 45 (1) (c)), the period of 3 months after the date that the amendment was published on the NSW legislation website. A judicial review period does not arise as a result of the extension of the duration of a management plan. (3) The judicial review period cannot be extended by the Land and Environment Court or any other court, despite any other Act or law. (4) Without limiting subsection (1), the exercise by a designated person of any plan-making function may not be - (a) challenged, reviewed, quashed or called into question before any court in any proceedings, or (b) restrained, removed or otherwise affected by any proceedings, other than before the Land and Environment Court in proceedings commenced within the judicial review period. (5) The provisions of or made under this Act and the rules of natural justice (procedural fairness), so far as they apply to the exercise of any plan-making function, do not place on a designated person any obligation enforceable in a court (other than in the Land and Environment Court in proceedings commenced within the judicial review period). (6) Accordingly, no court (other than the Land and Environment Court in proceedings commenced within the judicial review period) has jurisdiction or power to consider any question involving compliance or non-compliance, by a designated person, with those provisions or with those rules so far as they apply to the exercise of any plan-making function. (7) This section is not to be construed as applying the rules of natural justice to the exercise of plan-making functions for the purposes of proceedings instituted within the judicial review period. (8) In this section - court includes any court of law or administrative review body. designated person means the Minister, a management committee, the Secretary or any person or body assisting or otherwise associated with any of them. exercise of functions includes the purported exercise of functions and the non-exercise or improper exercise of functions. judicial review period - see subsection (2). management plan includes purported management plan. plan-making function means - (a) a function under this Act relating to the making of a management plan (including relating to the amendment, replacement or repeal of a management plan or the extension of the duration of a management plan), or (b) a function under section 46 of this Act relating to the statement of the purpose for which any provision of a management plan has been made. proceedings includes - (a) proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and (b) without limiting paragraph (a), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.

[9]

Combined statement of facts / chronology

The parties agreed a "Combined Statement of Agreed Facts / Chronology" (SOAF) which means that virtually all the relevant background facts concerning the grounds of review and most of the events relevant to the exercise of discretion are agreed as follows: The parties 1 Lin Lu and Frederick Woo, the first and second applicants, own and occupy the property located at 105 Clontarf Street, Seaforth, legally described as Lot 179 DP 11162 (Lu Property). The first and second applicants purchased the Lu Property in November 2009. 2 Adrian Walding and Alexandra Walding, the first and second respondents, own and occupy the property located at 107 Clontarf Street, Seaforth, legally described as Lot 1 DP 119074 (Walding Property). The first and second respondents purchased the Walding Property in December 2014. 3 The Lu Property adjoins the Walding Property to the south. The Clontarf Street road reserve is located to the east of the Lu Property and the Walding Property. Clontarf Street is a council public road within the meaning of that term in the Roads Act 1993 (NSW). 4 Northern Beaches Council, the third respondent, is: a. the roads authority and owner of Clontarf Street (including the Dedicated Land referred to in paragraph 5 below); and b. the consent authority in respect of development application DA 359/2016 (DA) (described in paragraph 10 below) lodged by the first and second respondents. Dedication of land to the third respondent for the purpose of road widening 5 Between late 1956 and mid-1957, part of Lots 178 to 183 of DP 11162 was dedicated to the third respondent (or its predecessor) for the purpose of widening Clontarf Street. 6 Under Memorandum of Dedication G628386 dated 26 April 1959, the then registered proprietor of the Walding Property dedicated part of the Walding Property (identified in the Plan Showing Proposed Road Widening within Lots 178-183 DP 11162 dated 16 November 1956) to the third respondent (or its predecessor) for the purpose of road widening (Dedicated Land). 7 Memorandum of Dedication G628386 was registered by the Registrar General in the Register Book Volume 4317 Folio 206 on 26 April 1957. Upon registration of Memorandum of Dedication G628386, the Dedicated Land was vested in the third respondent (or its predecessor) and formed part of the Clontarf Street public road reserve. 8 On 30 September 1960, Certificate of Title Volume 4317 Folio 206 was cancelled, and on 7 October 1960, a new Title Volume 8002 Folio 186 was registered. The diagram contained in Certificate of Title Volume 4317 Folio 206 shows the new lot dimensions of the Walding Property (then described at Lot 180 DP 11162), with the Dedicated Land excised from that lot. 9 On 14 February 1989, Certificate of Title Volume 8002 Folio 186 was cancelled, and a new Certificate of Title was created, being Lot 1 DP 119074 (the current title of the Walding Property). This plan contains the same dimensions as Lot 180 DP 11162. The Development Consent 10 On 26 May 2016, the respondents attended a pre-lodgment meeting with the third respondent in relation to proposed development on the Walding Property. 11 On 30 October 2016, David Frew prepared a survey plan of the Walding Property for the respondents. 12 On 20 December 2016, the first and second respondents lodged the DA with the third respondent. The DA sought development consent for additions and alterations to the existing dwelling including the construction of a new detached garage with roof terrace and associated landscaping (Proposed Development). 13 The DA was accompanied by documents including the following: a. the DA form; b. the Survey Plan dated 30 October 2016 (Survey Plan); c. the Existing Site Plan Drawing Ex 01 dated 8 August 2015 prepared by Sulivan [sic] Design and Construction; d. Notification Plan Drawing No DA 10 dated 8 August 2015 (Notification Plan); and e. the Statement of Environmental Effects dated 15 December 2016 prepared by Planning Approvals. 14 As indicated in paragraphs 5 to 7 above, the third respondent is the owner of the Dedicated Land. At the relevant times, clause 49(1) of the Environmental Planning and Assessment Regulation 2000 provided as follows: 49 Persons who can make development applications (cf clause 46 of EP&A Regulation 1994) (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land. 15 The DA was publicly notified between 21 December 2016 and 23 January 2017 (the "Notification Period"). The first and second applicants received a letter from the third respondent dated 21 December 2016 notifying them of the DA and the Proposed Development and inviting them to make written submissions. The letter was accompanied by a Notification Plan. 16 On 18 January 2017, the first and second applicants made a written objection to the DA. 17 Prior to the determination of the DA, on or about 9 May 2017, the third respondent's delegate recommended in its Delegated Authority Report that the development proposed by the DA be approved, subject to conditions. (the "Delegated Authority Report"). 18 On 9 May 2017, the third respondent, by its delegate, determined to approve the DA (the "Development Consent"). 19 Notice of the Development Consent was published in the Manly Daily newspaper on 8 July 2017. Construction of the Proposed Development 20 On 9 April 2018, Dan Goodwin of the third respondent sent an email to the second respondent advising on the requirement for a Sydney Water tap in check (Building Plan Approval) to confirm that any excavation would not affect the sewer main running in the location of the garage. 21 On about 19 April 2018, the first and second respondents received a plan dated 19 April 2019 [sic] from MGP Building & Infrastructure Services, as Sydney Water Servicing Co-ordinator, showing the location of sewers in the vicinity of the Walding Property. 22 On 1 May 2018, MGP Building & Infrastructure Services produced a Service Protection Report for the Walding Property. 23 On 23 June 2018, an updated Survey Plan of the Walding Property was prepared by David Frew. 24 On 13 July 2018, an updated Site Plan for the Walding Property was prepared by Blue Sky Building Designs. 25 On 19 July 2018, the third respondent issued construction certificate CC2018/0207 for the development the subject of the Development Consent (the "CC") and advised the first and second respondents that the request to appoint the third respondent and Principal Certifying Authority for the works under the CC had been accepted. 26 At or around the start of September 2018, the first and second respondents commenced construction of the development the subject of the Development Consent. 27 On 18 September 2018, the third respondent performed a critical stage inspection of excavations and footings. On 20 September 2018, the third respondent performed a steel inspection for the garage slab. 28 On 20 September 2018, GZ Consulting Engineers conducted a site inspection relating to the concrete slab for the garage and confirmed that the concrete pour could proceed. 29 In about late September 2018, the concrete slab for the garage was poured. 30 On 2 October 2018, the third respondent carried out a critical stage inspection for the garage concrete blockwork. 31 In early October 2018, the applicants engaged a conveyancer to undertake searches to determine the location of the front boundary of the Walding Property. 32 On 9 October 2018, the first and second applicants wrote by email to the third respondent regarding its suspicion that part of the Proposed Development had been carried out beyond the front boundary of the Walding Property. This was followed by a series of emails (on 12 October 2018), letters and telephone calls with representatives of the third respondent. The third respondent confirmed by email on 12 October 2018 that the matter had been referred to Council's Building Control Team. 33 The first and second applicants subsequently engaged Rygate Surveyors to undertake an Identification Survey to determine the location of the garage and roof terrace. 34 On 19 October 2018, the third respondent carried out a critical stage inspection of the steel for the garage roof slab. On 19 October 2018, GZ Consulting Engineers carried out a site inspection of the garage roof slab and confirmed that the concrete pour could proceed. 35 On 22 and 25 October 2018, the applicants contacted Mr Thomas of Council to express their concerns regarding the location of the development. 36 On 25 October 2018, the applicants sent an email to Dan Goodwin, Building Surveyor of the third respondent, expressing concern that a response had not been received from Council and that the garage appeared to be located 6m forward of the front boundary of the Walding Property. 37 On 29 October 2018, Dan Goodwin sent an email to the first applicant, indicating that the query had been referred to the Manager of Planning for comment and that he would advise of the outcome. 38 On 1 November 2018, Anita Ugarkovic, Manager Building Control of the third respondent, sent an email to the first applicant indicating that the works were progressing in accordance with the approvals and that Council was unable to stop the construction. The applicants responded to Ms Ugarkovic's email, indicating that the works were carried out on the Dedicated Land, their privacy was affected and that it was Council's responsibility to address this error immediately. 39 On 8 November 2018, the applicants sent an email to Nicki Adams, Executive Officer of the third respondent, providing an overview of the matter (including the applicants' request to order cessation of construction) and requesting a meeting with the Mayor. On 10 November 2018, Nicki Adams responded, confirming that the applicants' email of 8 November 2018 would be forwarded to the Mayor. 40 On 12 November 2018, the applicants sent an email to Anita Ugarkovic, indicating that a response to their previous emails had not been received and that the third respondent's delay in addressing this matter would increase the cost to Council of removing the structure. On the same day, Anita Ugarkovic responded, indicating that the matter has been escalated and that Council's Planning Team was investigating. 41 On 19 November 2018, the first applicant called Nicki Adams, Executive Officer of the third respondent, and also sent an email querying whether a meeting with the Mayor could be arranged soon, noting that construction was continuing to progress and that a response had not been received from Council. On the same day Nicki Adams sent an email to the applicants indicating that the Mayor's diary was heavily committed and that it would not be possible to schedule a meeting at this time. 42 On 3 December 2018, a limited initial discussion took place between the first applicant and the second respondent regarding the development on the Dedicated Land. 43 On 7 December 2018, David Kerr, General Manager Planning, Place and Community of the third respondent, sent a letter to the applicants, indicating that: a. throughout the development application process, Council's records and that of the LRS did not indicate the Walding Property was affected by road widening; b. the Development Consent is valid until it is declared invalid by a relevant Court; and c. the works are consistent with the DA and CC. 44 On 10 December 2018, Bick & Steele, solicitor for the applicants sent a letter to the third respondent, indicating that an independent survey was being obtained to confirm that development had been carried out on the Dedicated Land, alleging that due to the absence of landowner consent, the Development Consent was invalid and that proceedings would be brought if the Dedicated Land was not restored to its previous condition. 45 On 10 December 2018, Bick & Steele also sent a letter to the first and second respondents, requesting the cessation of all construction on the Dedicated Land until a survey had been obtained. 46 On 10 December 2018, Rygate Surveyors was engaged by the applicants to undertake an Identification Survey. 47 On 11 December 2018, Dan Goodwin of the third respondent sent an email to the first respondent advising that the first and second applicants had no power to force them to stop work and that only the third respondent or the Court has that power. Dan Goodwin on the same day also sent an email to the first respondent advising that "nothing illegal had occurred" and that the conduct of the second applicant was "over the top" and that if it continued the first and second respondent should "consider contacting the police". 48 On 12 December 2018, field work was undertaken by Rygate Surveyors to position the garage and roof terrace relative to the Walding Property and the Clontarf Street road reserve. 49 On 14 December 2018, an Identification Survey report was prepared by Rygate Surveyors confirming that the garage and roof terrace were located on the Dedicated Land. 50 On 17 December 2018, Bick & Steele sent a letter to the third respondent, providing a copy of the Identification Survey and requesting a response from Council about what it proposed to do to address this matter. Bick and Steele also sent a letter to the first and second respondents, providing a copy of the Identification Survey, and requesting undertakings that works cease on the Dedicated Land and that the Dedicated Land be restored to its original condition. 51 On 21 December 2018, Moray & Agnew Lawyers, acting on behalf of an insurer for the third respondent, sent a letter to Bick & Steele indicating that instructions were being sought and that a response would be provided as soon as possible. 52 On 21 December 2018, the second respondent sent an email to Bick & Steele indicating that legal advice was being sought and that a response would be provided in the new year. 53 On 5 February 2019, Bick & Steele sent a letter to the first and second respondents (copied to the solicitor for the third respondent), attaching a draft Class 4 Summons and seeking urgent confirmation as to whether the requested undertakings would be provided. 54 On 6 February 2019, limited discussions took place between the first applicant and the second respondent regarding the development on the Dedicated Land. 55 On 11 February 2019, Mills Oakley, solicitor for the first and second respondents, sent a letter to Bick & Steele confirming that the first and second respondents undertake to cease all building and construction works on the Dedicated Land so that negotiations may ensue to resolving the matter without recourse to litigation. 56 On 12 February 2019, Bick & Steele sent an email to Mills Oakley, indicating that unless the first and second respondents provided the undertaking sought including that it would restore the Dedicated Land to its previous condition, the Class 4 Summons would be filed without further notice. 57 On 12 February 2019, Mills Oakley responded to Bick & Steele, indicating that a response would be provided by 13 February 2019 and seeking advice on need for urgency and insistence on demolition of the structures not on the Lu Property or posing a safety risk. 58 On 13 February 2019, Mills Oakley sent a letter to Bick & Steele, solicitor for the applicants, indicating that any development on the Dedicated Land would be "Council's fixtures", queried the basis on which the first and second respondents could demolish the structures, and stated that any claim should be made against the third respondent. Proceedings Commenced 59 The proceedings were commenced by way of Summons filed on 13 February 2019. 60 On 3 October 2019, an open letter was sent by Mills Oakley to Bick Steele, setting out an approach by which the proceedings might be able to be resolved. 61 On 24 October 2019, an open letter was sent by Bick & Steele to Mills Oakley, providing a written "assurance" and in-principal agreement to consider any design solution prepared by the first and second respondents.

[11]

Plans and documents relevant to common boundary of Walding and Lu Properties

Several plans and documents which purport to show the location of the front boundary of the Walding Property are in evidence.
The dimensions in Lot 1 DP 119074 of the southern side and northern side boundaries of the Walding Property are 36.575 metres. This follows the dedication of land to the Council for the widening of Clontarf Street, as described in the SOAF at pars 5-9. The "Dedicated Land" excised from Lot 1. DP 119074 is extracted below:
On or about 20 December 2016 the Waldings lodged development application (DA) 359/2016 (the DA) with the Council. The DA form identifies the Walding Property as Lot 1 DP 119074. The site area is stated to be 504.1 square metres.
The DA form was accompanied by: 1. A survey plan dated 30 October 2016 (the Frew Survey Plan). The Frew Survey depicts the southern side boundary measurement as 36.575 metres. The purported front boundary of the Walding property has been drawn on the nature strip between Clontarf Street and the garden at the front of the Waldings' house. The Frew Survey Plan includes a notation that states "[n]o boundary survey has been undertaken. Bearings and dimensions are from title only and are subject to confirmation by boundary survey". The purported front boundary is incorrect. It is unknown how the front boundary as depicted on the Frew Survey Plan was located by the surveyor. 2. An existing site plan drawing (Existing Site Plan) dated 8 August 2015 prepared by Sullivan Design & Construction depicts the southern side boundary measurement as 36.575 metres. The location of purported front boundary is incorrect. 3. A "Notification Plan" drawing prepared by Sullivan Design & Construction dated 8 August 2015 (Notification Plan). The southern side boundary dimension is shown as 36.575 metres. The purported front boundary is incorrect. 4. The Statement of Environmental Effects (SEE) dated 15 December 2016 prepared by Planning Approvals includes an aerial view of the Walding Property sourced from the "SIX Maps" viewer as extracted below. The SEE includes the words "side boundary (South) 36.575m". On the Six Maps image the purported front boundary has been drawn incorrectly as follows:
The DA was approved by the Council on 9 May 2017 including five plans affixed to the Council's Notice of Determination being: 1. Approved site analysis plan dated 8 August 2015 prepared by Sullivan Design & Construction (reflecting the Notification Plan described in [17(b)] above) which depicts the southern side boundary as 36.575 metres and has the same purported front boundary error. 2. Proposed garage floor plans dated 8 August 2015. 3. Proposed floor plans dated 8 August 2015. 4. Proposed elevations dated 8 August 2015. 5. Landscape plan dated 29 September 2016, with the southern side boundary measurement depicted as 36.575 metres.
On 23 June 2018, an updated survey plan of the Walding Property was prepared by David Frew which shows the southern side boundary measurement as 36.875 metres (I assume that figure is an error, 36.575 metres being otherwise shown on other plans in evidence). No reference was made to this survey plan by the parties.
On 13 July 2018, an updated site plan for the Walding Property was prepared by Blue Sky Building Designs (2018 Site Plan). The 2018 Site Plan depicts the southern side boundary measurement as 36.875 metres (I assume that figure is an error, 36.575 metres being otherwise shown on other plans in evidence). No reference was made to the 2018 Site Plan by the parties.
Emails sent from the Applicants to the Council dated 9 October 2018 and 22 October 2018 stated that the garage on the Walding Property extended 4.573 metres beyond the boundary of the Walding Property, extending to 41.148 metres level with the southern boundary of 105 Clontarf Street Seaforth (the Lu Property), the boundary not shared by the Walding Property. An identification survey of the Walding Property in evidence showed the southern boundary to be 41.148 metres. The error of depicting the purported front boundary too close to Clontarf Street was made in all the plans and documents accompanying the DA and in the plans approved by the Council.
The Applicants engaged Rygate Surveyors in December 2018 to undertake an identification survey (the Rygate Survey) of the Walding Property. The Rygate Survey depicts the southern side boundary measurement of the Walding Property as 36.575 metres. The Rygate Survey identifies that the concrete garage under construction does not fall within the boundary of the Walding Property.

[14]

Applicants' submissions

The development consent as identified in the stamped plans purports to authorise construction on the Council's land. Prior to the determination of the DA, written consent by all owners of the land to which the DA relates including written consent by the Council in respect of the Dedicated Land on which the block garage and roof terrace were proposed to be located, was not obtained. Such written consent is required by regs 49 and 50(1)(a) and Pt 1 of Sch 1 of the EPA Regulation.
It is well accepted that the requirement for landowner's consent is jurisdictional: Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 120 and King v Great Lakes Shire Council (1986) 58 LGRA 366 cited in Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 (Ipoh) at [37], and most recently Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 (Al Maha). It follows that subject to any discretionary factors, the Court ought to declare the development consent invalid if it is satisfied in relation to Ground 1.
The Waldings rely on the decision in Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 (Claude Neon). The Court of Appeal held that in relation to a DA made to a council for consent to the erection of a structure which projected over a public road the council, as owner of the road under the Local Government Act 1919 (NSW) (LG Act 1919), was empowered to give its consent to the making of the application as required by s 77(1)(b) of the EPA Act, the predecessor to reg 49 of the EPA Regulation. The decision in Claude Neon and the other cases relating to the same issue (or an extension of the issue being whether the Court on appeal may exercise the same power under s 39 of the LEC Act) do not deal with circumstances in which a council was not aware that part of the land was not the applicant's land, but in fact owned by the council. That is a significant distinguishing feature. On the Waldings' case, the Court must accept, in application of Claude Neon, that "consent" can be given unconsciously or unknowingly. It appears to be accepted, by the Waldings' admission in its pleadings, that the Council was not aware that the DA included Council land. It is accepted that Hope JA stated at 732 in Claude Neon that the giving of development consent is a function of a council, which is basic to the function of granting development consent. The exercise of administrative power conferred by statute requires that the consent authority be conscious of the fact that development was proposed over public land. Claude Neon and Ipoh make clear that a council may knowingly give its landowner's consent by the grant of development consent. They are not authority that this can be done unknowingly.
It is imperative for the exercise of administrative power conferred by statute that the basic ingredients of the exercise of that power are met. In Claude Neon and Ipoh there was no question that the consent authority was conscious of the fact that development was proposed over public land. The Council as a landowner of public land is regulated under the EPA Act, the LG Act and the Roads Act.
The administrative law principle stated in Lockwood v The Commonwealth (1954) 90 CLR 177; [1954] HCA 31 (Lockwood) by Fullagher J was "that an act purporting to be done under one statutory power may be supported under another statutory power…". In VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631; [2003] NSWCA 297 (VAW) whether the decision to list a species under relevant legislation when the governing power was incorrectly described by the relevant committee was in issue. Spigelman CJ considered that the essential exercise of statutory power in that case was not invalid as: 56 To use the terminology of the cases quoted above, the initiating mechanism: • "in no way affected ... the proceedings ... so that all the conditions on which the right of the (Scientific Committee) to exercise jurisdiction depended were in fact fulfilled". (R v Bevan; Ex parte Elias and Gordon) • "the power is to determine (a proposal for inclusion) and that is the power which the (Committee) exercised." (Brown v West) • "…no consequence attached to the specification of a source of power that did not in fact exist. The circumstances relevant to the proper exercise of the power were exactly the same whether the source of power was (s18(1) or s18(2)(b)) ... it was quite immaterial whether the source was (s18(1) or s18(2)(b))." (Mercantile Mutual Life Insurance per Black CJ) • "Nor does reliance upon one rather than another head of power lead to any difference in the consequences for third parties." (Mercantile Mutual Life Insurance per Gummow J) • "There was no distinction required by the procedures ... dependent upon whether (the proposal was initiated under s18(1) or s18(2)(b))." And "The environmental aspects of the (proposal) are in truth the same whether the proposal was (initiated under s18(1) or s18(2)(b))." (Rosemount Estates) 57 On the other hand, it could not be said that: • "the scope of relevant considerations differed" (Abbott v Shire of Heidelberg) • "what was done … differed markedly" (Newcrest Mining) • "the consequences … of each exercise of power are different" (Saatchi & Saatchi) 58 There is no aspect of the scope and purpose of the statute, or of its content, which suggests that an act done in reliance on a process initiated by nomination, if not supported under such process but which could be supported by a process commenced or continued on the initiative of the Committee, should be invalid (Project Blue Sky).
Here, the scope of considerations differed as between the decision to grant consent exercising the power under s 79C as against the decision made under s 8 of the LG Act and its own considerations as a landowner. For example, if the Council is unknowingly allowing for consent to apply to develop its own land, it has not considered: 1. whether that impedes future acquisition plans; 2. if a Roads Act approval is required and / or is in place; 3. if it intends to permanently dispose of the land; and 4. what the consequences of allowing for private development on public land in this location are, and whether that will provide a precedent or form for it to occur further.
Not only did "the scope of considerations differ" in the words used in VAW extracted directly above, but clearly the "consequences of each exercise of power differed".
The line of authority in Claude Neon and Ipoh make clear that while a council may knowingly give its landowner's consent by the grant of development consent, there is no authority for the proposition that it could do so unknowingly. The exercise of an administrative power unwittingly or unknowingly would at least have to meet the criteria in VAW / Lockwood as set out above, and clearly this is not the case in relation to the grant of consent in these proceedings, for inter alia, the reasons set out in [31] above.
The concept of "consent" (that is, allowing for something to occur) imports with it an element of knowledge about what is to occur, and control by that person or entity, to then allow or authorise it. It is illogical to suggest that any type of "consent", being by necessity an informed process, could ever occur unknowingly.

[16]

Claude Neon answers Ground 1

The Waldings submitted that the Applicants' case is contrary to Claude Neon per Hope JA at 731: In my opinion the principle (that is, that an approval for one purpose may impliedly be an approval for another purpose) is to be applied where a council is asked to give consent to a structure which in part projects over a public road. If the council gives development approval to that structure, it is doing two things. It is consenting as owner of the road to the making of the application, and it is also approving the application. The first consent is necessarily implicit in the second consent, and in my opinion it does not matter that the council, when giving the second consent, is not conscious that it is implicitly giving the first consent also. There is no such difference between the nature of the act of the council in giving its consent as owner and the nature of the giving by it of development consent to enable it to be said that the actions have nothing to do with each other. If the council were in a position of an ordinary private owner of land in relation to the road, the actions would be completely different. However that is not the position, and if a council considers that it should give consent to a development application it must also consider that it should give consent to the making of the application. I have thus far been dealing with the position where the council gives development approval to the proposed structure. If it does not give that approval, either by refusing the application or by failing to deal with it, it cannot be said that it has given its consent to the making of the application. (emphasis added).
In granting development consent, the Council granted landowner's consent in consenting to the application, whether or not it was conscious of doing so. Giving consent is an incident of land ownership. It is irrelevant whether the Council was conscious of giving that consent. By parity of reasoning, the Council's "Delegated Authority Report" in recommending approval of the DA was also recommending that the Council give its consent to the application, whether or not the officer was conscious of doing so. The acceptance of the recommendation and the issue of the development consent was consent in writing of the owner to the making of the application for the purposes of reg 49(1)(b) of the EPA Regulation and evidence of consent for the purposes of Sch 1 Pt 1 cl 1(1)(i).

[18]

If breach, development consent not invalid

To the extent there is a breach of reg 49 and Sch 1 of the EPA Regulation, it is not due to the absence of the consent of the Council to the making of the DA for development on its own land, but the form in which the consent is evidenced.
Further, an evident purpose of reg 49 of the EPA Regulation is one of property rights. A DA is not to be lodged for consideration unless it is lodged with the consent of the owner of the land. It is obvious that if development consent is granted, it cannot be carried out on the land without the owner's consent. As Hodgson JA observed in lpoh at [5], Santow JA agreeing at [10]: In my opinion, the requirement of consent of the owner to a development application under the Act and Regulation is to be considered as a means of supporting the objects and the functioning of that legislative scheme; for example by ensuring that consent authorities are not troubled by applications that are pointless because title requirements for carrying them out will not be satisfied, and by ensuring that owners are not prejudiced by having development consents associated with their land which cause unwelcome increases in the value of land and thus in rates and taxes payable on it.
In the present proceedings, if there is a breach of reg 49 of the EPA Regulation, the consequences of the breach will not be significant in their impact. Public convenience is a relevant factor in determining whether the legislature intended a breach to invalidate its decision. In Project Blue Sky the majority judgment said at [97] that (see also Ralan Burwood at [176]): ... it is unlikely that it [is] a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.
Adopting and adapting the reasoning in Ralan Burwood at [177] and [178], if such a breach were to render the consent invalid, the public inconvenience that would flow from the failure to properly evidence owner's consent is likely to include the consequence that an innocent developer carries out development in breach of the EPA Act, thereby committing an offence against the EPA Act. Such an inconvenience would be disproportionate to the mischief sought to be protected by reg 49 of the EPA Regulation. This is a strong indicator that such a breach would not render the development consent invalid.
For these reasons, the breach of the EPA Regulation would not render the development consent invalid.
Al Maha does not address the question of whether after three months s 101 protects a decision to grant development consent notwithstanding the absence of owner's consent. Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55 (Woolworths v Bathurst) is directly on point.
In Woolworths v Bathurst, Cripps CJ held that a challenge to the validity of a development consent based upon the absence of owner's consent was precluded from challenge by the equivalent of s 101 (then s 104A). He said: Mr McClellan submitted that failure of an owner to consent to a development application necessarily renders the application void. In his submission, it follows that if the correspondence referred to above fell short of the consent required (and if the challenge was brought within 3 months), the development consent would be void. He thereupon submits that if the development application was void, any consent granted by the council was a decision in excess of jurisdiction or ultra vires and could not be protected by the privative clause referred to above. I accept that privative clauses must be read strictly and it is the policy of the courts to give them no greater width than is warranted in all the circumstances. However, the meaning of the clause must be determined in the context of the legislative enactment. Its main purpose is to remove any uncertainty that might exist concerning the validity of development consents. Development consents run with the land. The mischief sought to be cured by precluding challenges (other than those based on bad faith, denial of natural justice and perhaps, manifest excess of jurisdiction) is, I think, obvious. It would seem to me, therefore, that s 104A precludes a challenge to the validity of the development consent and, in my opinion, precludes a challenge to the development application where such a challenge is based upon circumstances referred to in this judgment.
The correctness of this passage in Woolworths v Bathurst has not been doubted in more than 30 years. This approach has been consistently applied, for example in P W Rygate & West v Shoalhaven City Council (1996) 91 LGERA 417. Pearlman J applied Woolworths v Bathurst when her Honour said at 422: In my opinion, the conclusion that s 104A operates and takes effect in relation to a challenge to a development consent on the basis of s 83 is consistent with the scope and purpose of s 104A, which was stated by Cripps J in Woolworths Ltd v Bathurst City Council as follows: Its main purpose is to remove any uncertainty that might exist concerning the validity of development consents. Development consents run with the land. The mischief sought to be cured by precluding challenges ... is, I think, obvious.
It is also consistent with what Spigelman CJ said in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 (Pallas Newco) at [66].
Unless s 101 is construed differently from the construction in Pallas Newco, the absence of owner's consent would be protected by s 101 three months after the requisite notice.

[19]

Ground 1 established

The facts of this case raise matters which are complex to unravel in a legal sense. Al Maha identified at [85]-[94] the legal framework under the EPA Act and EPA Regulation for providing landowner's consent for a DA. Preston CJ (Leeming and Basten JJA agreeing) identified how land on which development is intended to be carried out is identified: 91 The land on which the development is to be carried out is to be determined not only from the address and formal particulars of title shown on the development application form but also from the documents that must accompany the development application. The Regulation requires the development application to be accompanied by specified documents, including "a site plan", "a sketch of the development", and "a statement of environmental effects" (in the case of development other than designated development or State significant development) or "an environmental impact statement" (in the case of designated development or State significant development) (cl 2(1)(a),(b),(c),(e) of Sch 1 of the Regulation). The site plan must indicate, amongst other matters, "the location, boundary dimensions, site area and north point of the land" (cl 2(2)(a) of Sch 1 of the Regulation). The sketch must indicate the following matters: (3) The sketch referred to in subclause (1) (b) must indicate the following matters: … 92 A statement of environmental effects must indicate, amongst other matters, "the environmental impacts of the development", which necessarily involves a description of the development and the environment that the development will impact (cl 2(4) of Sch 1 of the Regulation). … 93 These accompanying documents describe the development to be carried out and the land on which the development is to be carried out. 94 If the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application: see Owners - Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32]. Conversely, the description of the land on which the development is to be carried out in the accompanying documents (such as the statement of environmental effects) can also confine the land to which the development application relates to be a lesser parcel of land than is described in the development application form: see Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208 at [60]-[63].
In Al Maha no issue arose of a site plan showing incorrect boundaries being lodged in support of a DA.
The DA form lodged with the Council referred only to Lot 1 DP 119074 as the land where development was proposed. As identified above in [17]-[22], none of the plans lodged with the DA showed the Waldings' front boundary in the correct location.
The Frew Survey Plan lodged with the DA stated expressly that it did not indicate the boundaries of the Walding Property. The notation states that bearings and dimensions are from title only and are subject to confirmation by a boundary survey. It identifies (being the same figure as the deposited plan dimensions) the side boundary length of the Waldings' northern and southern boundaries as 36.575 metres. Wherever 36.575 metres is measured from the rear boundary would be the correct front boundary. The survey indicates a line purporting to represent a front boundary. On the assumption the rear boundary is generally accurately located on the survey, if 36.575 metres is measured accurately the Waldings' land cannot include the approximately 4.5 metres of Dedicated Land. The marked front "boundary" line has apparently been interpreted as showing the front boundary but includes the Dedicated Land. It is difficult to understand what the survey purports to show at the front of the Waldings' property given these inconsistencies.
All the other documents lodged in support of the DA showed the southern side boundary dimension as identified in Lot 1 DP 119074 of 36.575 metres but that was not the accurate measurement of the land as intended to be encompassed by these plans. Unfortunately the site plan lodged arguably did not comply with reg 50(1)(c) of the EPA Regulation which specifies that a DA must be accompanied by documents specified in Pt 1 of Sch 1. Under Sch 1 Pt 1 cl 2(1)(a) and (b) a DA must be accompanied by a site plan of the land and a sketch of the development. Under cl 2(2)(a) the site plan required by subcl (1)(a) must indicate the location, boundary dimensions and site area inter alia. Under subcl (3)(a) the sketch of the development must include the location of any proposed buildings or works in relation to the land's boundaries and adjoining development inter alia. The accurate boundaries of Lot 1 DP 119074 were not identified in any site plan or the sketch of the development.
A Six Maps "plan" was also lodged with the DA in the SEE. Such a plan is not required by the EPA Regulation. Another version also appears in the Council's Delegated Authority Report. This incorrectly depicts the location of the Waldings' front boundary as incorporating the Dedicated Land. The Six Maps extract in evidence annexed to the affidavit of Mrs Walding contains a written caveat that Land and Property Information (LPI) "does not warrant or represent that the information is free from errors or omission, or that it is exhaustive. LPI gives no warranty in relation to the information, especially material supplied by third parties".
The Council approved the DA including five plans identified in [18] above. The approved site analysis plan repeats the length of the side boundaries in the Frew Survey Plan, which in turn repeats the side boundaries of the deposited plan but shows the purported front boundary beyond that identified length. It has presumably been prepared for, and been interpreted by the Council as seeking approval for development on land which includes the Dedicated Land. The boundary measurement of 36.575 metres is not correct in showing the side boundary length of the land for which development consent was sought.
These circumstances inform the essential issue of whether landowner's consent could be granted implicitly by the Council. Clearly no written consent was provided explicitly. The Council has filed a submitting appearance and not participated in the hearing. It is an agreed fact that the Council was unaware that the DA sought development consent to erect a permanent structure on the Dedicated Land which was a public road reserve. In other words, the Council understood the DA to seek consent for development on private land. This agreed fact suggests that the inference can be made that the Council was unaware that its consent as landowner was required for the DA before it.

[20]

Landowner's consent absent when development consent granted

Regulation 49(1)(b) of the EPA Regulation provides that a DA may be made by any person with the consent in writing of the owner of land to which the DA relates. It is settled law that landowner's consent must be provided by the time a council determines whether to grant development consent. Not having landowner's consent at the time of lodging a DA is not fatal to the validity of a DA: Al Maha at [96]-[98].
In Claude Neon Hope JA held that in granting consent to a DA under the EPA Act to undertake development (hanging an advertising sign projecting over a public road) involving a public road vested in the control (title) of the council under s 232 of the LG Act 1919, a council does two things. It consents as owner of the road to the making of the application and it also approves the application. The consent to the development implicitly provides consent to the application concerning the use of a public road, at 731C. It does not matter that the council when giving approval is not conscious that it is implicitly giving consent to the application as the relevant landowner of the public road. This conclusion was based on the applicability of the principle that a council can impliedly exercise two powers when all it purports to do is exercise one, at 730C. The LG Act 1919 specifies functions and duties local councils may or must exercise in relation to the control of public roads including the regulation of advertisements which extend over the alignment of a road. A licence for such structures can be issued. Hope J discussed the difference between a private landowner and the owner of publicly controlled land at 731D as part of his reasoning that a council can give consent implicitly in accepting and approving a DA which affects public land under council control.
While landowner's consent of a public authority can, according to Claude Neon, be given implicitly through the acceptance of a DA that explicitly relates to a public road, the important distinction the Applicants seek to make in this case is that the Waldings' DA on its face did not purport to relate to a public road. The Applicants' DA purported to relate only to their land. The Council was unaware when it granted development consent to the DA that it was consenting to development on land reserved for a public road. While Claude Neon is authority that landowner's consent can be given impliedly by the action of granting development consent, in Claude Neon the parties were aware that development over a public road was in issue.
It was unnecessary to address in Claude Neon the issue that arises here of an unknowing council as owner of public land. It would seem fundamental to the exercise of statutory power, whether exercised expressly or by implication, that a consent authority understand that it is exercising a function of its statutory power. Surprisingly perhaps no authority directly on this point has been identified, the Applicants relying on Lockwood and VAW to emphasise that when exercising statutory power relevant considerations must be applied by a decision-maker. In VAW it was found that the necessary considerations were undertaken in relation to the relevant head of statutory power despite a different, incorrect statutory power being identified by the decision-maker, resulting in a finding that a statutory decision was not invalid. By analogy, and as the Applicants argued, considerations relevant to whether development consent to a permanent structure being built on a public road here the Dedicated Land should have been considered by the Council as part of its assessment of the DA in its role as the owner and manager of a public road.
In accepting the Applicants' DA the Council was not implicitly providing landowner's consent because it was unaware that it needed to do so. It did not purport to undertake considerations necessary to the exercise of its statutory power to give landowner's consent in relation to public land, being land reserved under the Roads Act. Accordingly, no landowner's consent was given by the Council to that part of the DA proposed on the Dedicated Land at the time it approved the DA.

[21]

Absence of landowner's consent jurisdictional error

Al Maha, the most recent Court of Appeal decision on the effect of the absence of landowner's consent for the validity of a DA, there in the context of private land, held that the giving of owner's consent to a DA in relation to the owner's land is an essential prerequisite to a consent authority granting development consent, at [95] per Preston CJ (Leeming and Basten JJA agreeing), citing Ipoh at 34(c) and (e). In reaching that conclusion the statutory framework under the EPA Act and EPA Regulation is identified at [85]-[90], including that the owner whose consent to the making of a DA is required is the owner of the land on which the proposed development the subject of the DA is to be carried out. Why that is the case is further elucidated at [97]-[98]: 97 The development application will be "ineffective and incomplete" whilst so ever the development application does not contain the information and is not accompanied by the documents that the EPA Act and the Regulation require to be provided in order for the consent authority to validly exercise the power to determine the development application. There can be no valid determination of the development application until there is substantial compliance with such statutory prescriptions: McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; 161 LGERA 170 at [189]. 98 Substantial compliance may be satisfied by the later provision of the required information or documents: Botany Bay City Council v Remath Investments No 6 Pty Ltd at [14], [18] and McGovern v Ku-ring-gai Council at [187]-[200]. In particular, the lack of owner's consent to a development application can be cured at any time up until the determination of the application: see Botany Bay City Council v Remath Investments No 6 Pty Ltd at [5]-[7] and cases therein cited.
It was not disputed that landowner's consent to carrying out development is a jurisdictional prerequisite to a valid development consent, at [82]. "Jurisdictional" means the existence of a precondition to the engagement of statutory power: Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 (Trives) at [17].
The Waldings' submissions did not directly address Al Maha, apart from submitting that it did consider the application of s 101, which is correct that not arising on the facts. Their submissions cite well-known principles of statutory construction in Project Blue Sky and Ralan Burwood to submit that a breach of the EPA Regulation would not give rise to invalidity of the DA is not supported by Al Maha. Further while obiter observations of Hodgson JA at [10] in Ipoh are cited to identify principles for identifying the purpose of reg 49 as a matter of property rights the context for these was consideration of the power of the Court under s 39(2) of the LEC Act to give consent to a DA. The development consent the subject of Al Maha was declared invalid because it involved jurisdictional error due to the absence of power to grant development consent when no owner's consent had been obtained inter alia, at [279]. Ipoh Tobias JA (Santow JA and Hodgson JA agreeing with additional observations) at [34(d), (e)] states precisely that.
Woolworths v Bathurst, which the Respondents also relied on, considered quite different facts including that the council was informed that owner's consent had been given. I agree with the Applicants that the facts of that case informed the outcome and are relevantly different from this matter. Woolworths v Bathurst pre-dates Pallas Newco and adopted the approach to s 101 which was confirmed in Pallas Newco. In that sense it represents one of the several cases before Brown where s 101 was applied strictly to prohibit the commencement of proceedings three months after public notice was given. That approach was confirmed in Pallas Newco. It does not assist in resolving whether that approach must of necessity change because of the impact of Kirk, a significant matter I turn to next.

[23]

Applicants' submissions

Section 101 is not a bar as the grounds of judicial review include a jurisdictional error, being the failure to obtain owner's consent. The decision of Preston CJ in Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 (Brown) should be followed. The Applicants agree that the comments at [40] in Brown are obiter, as the ratio of the decision was that the relevant notice was not issued in accordance with the EPA Regulation so that the limitation in s 101 did not commence to run. His obiter comments are persuasive and have been followed as a matter of comity. Paragraph [40] is in definitive terms, is correct and not so "clearly wrong" that it would not be followed as a matter of comity (and correctness), as it was by Pepper J in Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252; [2016] NSWLEC 26 (IPM). Ying v Song [2009] NSWSC 1344 at [19] cited in IPM at [58] identifies that weight to be accorded to obiter remarks varies depending on the circumstances of a case to the effect that "… considered dicta of appellate courts, though not strictly binding on courts in a lower or equal position within the judicial hierarchy, must be afforded great weight and should be departed from only with the greatest of caution".
Preston CJ gave a complete view of the appropriate approach post Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (Kirk) to s 101 in Brown at [37], and his reasons are forceful in concluding that s 101 did not apply to prevent the judicial review challenge in that case. The dicta in Trives that there is "a large question" in the post-Kirk context concerning time limited provisions does not require that a choice be made between the two obiter dicta in Brown and Trives. IPM considered all relevant cases and adopted Brown, albeit also in obiter, in the interests of judicial comity.
At [39]-[40] in Brown Preston CJ stated that Kirk has the effect identified therein. This confirms that Kirk, a High Court decision, prevails over Pallas Newco. The Court does not have to wait for the Court of Appeal to consider matters identified in Kirk before following it (as the Attorney-General also submits in this case). How the courts sit within the constitutional hierarchy was examined in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 from [261], particularly [263], [274], [283] and [286]. High Court departures from previous approaches to the law are binding on lower state courts including courts of appeal.
The exclusive jurisdiction conferred on the Court is set out in s 20(2) and (3) of the LEC Act. This was referred to in Brown at [39] stating the supervisory jurisdiction of the NSW Supreme Court is divided between the Supreme Court and this Court. Section 20(2) provides expressly that the Court has the same civil jurisdiction as the Supreme Court to hear and dispose of certain proceedings. Subsection (3) specifies all planning and environmental laws for the purposes of subs (2).
Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 (Hoxton Park), decided after Kirk, does not assist the Waldings as the Court of Appeal held that the public notice did not comply with reg 124 and s 101 did not arise. No consideration of s 101 was necessary. No consideration of Kirk was undertaken, or its implications for s 101.
Turning to WaterNSW v Harris (No 3) [2020] NSWLEC 18 (WaterNSW), relied on by the Waldings, these were Class 5 criminal proceedings in which a collateral challenge to an approval issued under the WM Act was mounted. The defendants argued that s 47 of the WM Act, a privative clause, did not protect this challenge based on jurisdictional error. The WM Act is not listed as a planning and environmental law in s 20(3) of the LEC Act for the Court's jurisdiction as described in s 20(2). The Court is not functioning in the same capacity as the Supreme Court in that context. Similar observations can be made about the obiter comments of Basten JA in Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14 (Randren House CA) at [9] which also concerned the WM Act. The Court in Brown and IPM was exercising the "divided jurisdiction" referred to in Brown at [39].
Further, firstly s 47 of the WM Act is similar but not identical to s 101, containing additional subsections. Secondly, it is part of a different statutory regime. Thirdly, it does not prevent the Court following the decisions in Brown and IPM.

[24]

Waldings' submissions

Pallas Newco, which considered s 101, is binding on the Court at first instance and cannot be changed other than by the Court of Appeal. In Pallas Newco the Court of Appeal sat a bench of five. Four of five agreed with Spigelman CJ. At issue was whether the question of the proper characterisation of a development as being one that was permissible with consent or was prohibited was a jurisdictional fact. Spigelman CJ held that at [79] s 101 protected decisions from jurisdictional error as part of the statutory construction process he undertook. Brown should not be followed as Preston CJ did not follow Pallas Newco which was not a course open to him at first instance as he was otherwise bound by that decision.
In Hoxton Park Basten JA considered Pallas Newco at [22] and in Trives at [44]. Contrary to the Applicants' submissions, Pallas Newco, Hoxton Park and Trives all support the conclusion that s 101 does protect decisions that are affected by jurisdictional error.
In Trives, Basten JA also considered in obiter the relevance of Kirk in relation to s 101. Basten JA identified that the High Court was not saying there can be no legislation affecting the availability of judicial review in state supreme courts and that the expansion of Kirk beyond its sphere of operation must be undertaken with caution. Further, s 101 does not directly affect the jurisdiction of the Court of Appeal to review an administrative decision, rather imposing a limit on review by the Court because of other statutory provisions which confer exclusive jurisdiction on the Court in relation to planning and environmental law at [45]-[46], [48].
The observations in Brown at [39]-[40] relied on by the Applicants were obiter and did not consider authorities such as Pallas Newco. Brown was delivered four years before Trives and two months before Hoxton Park. That a judge at first instance considers Pallas Newco must be decided differently in light of Kirk does not mean he or she is not bound by Pallas Newco.
A judge at first instance cannot dismiss such clarification of the law on the basis that it is only obiter. To do so is wrong. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (Farah Constructions) at [134] the High Court in a joint judgment admonished the NSW Court of Appeal when it said that the court's decision on a particular matter was: ... unsupported by authority and flew in the face of seriously considered dicta uttered by a majority of this Court.
Section 101 has been considered in at least three decisions of the Court of Appeal, Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005] NSWCA 455 (Anambah Homes), Hoxton Park and Trives. The latter two judgments were determined after Kirk. Trives must be regarded as seriously considered dicta.
Adhering to principle, Robson J in WaterNSW followed what Basten JA said in Trives, rather than Brown, in relation to an equivalent of s 101, being s 47 of the WM Act, at [214]-[211]. His Honour recognised the weight that should be given to Trives and that it would only be departed from with caution, at [220]. The reasoning of Basten JA at [9] in Randren House CA has direct application to s 101 of the EPA Act.
In reply, in Pallas Newco, s 101 was construed in accordance with Project Blue Sky at [78], to the effect that the meaning of a statute is to be given the effect that the legislature is taken to have intended. The Court of Appeal construed s 101 as not intending to deny access to the courts, but rather to permit a challenge for a discrete period, at [78]-[80]. Section 101 as applied in this case is in the same terms as in Pallas Newco. The Applicants do not refer to s 31 of the Interpretation Act 1987 (NSW).
Kirk has no direct application to the operation of s 101 and s 20 of the LEC Act as identified by Basten JA in Trives at [45]-[46]. Kirk concerned a strong form of privative clause, not a provision imposing a limitation period on otherwise available relief: Trives at [41], [46], [48]. Section 101 does not purport to prevent judicial review of development consents or complying development certificates. Rather, it imposes a time limit on challenges. If the time constraint is effective, it will limit the inconvenience resulting from the availability of review in the sense of uncertainty with respect to the valid operation of a relevant consent or certificate, pending the expiration of three months from the date of public notification: Trives at [41]. Spigelman CJ said the same in Pallas Newco at [78]-[80].
The Court is not the subject of constitutional protection, as a specialist state statutory court. At issue is whether s 101 removes a defining characteristic of the Supreme Court of a state contrary to s 73 of the Commonwealth Constitution: Trives at [48], Kirk at [55]. The Applicants' submissions elide the effect of s 101 in limiting the jurisdiction of the Court with its entirely separate effect of limiting the jurisdiction of the Supreme Court, adapting Basten JA in Randren House CA at [9] referring to s 47 of the WM Act. The ratio of Kirk has no direct application to Pallas Newco and does not overrule it. The seriously considered obiter by the Court of Appeal in Trives, Randren House CA and Hoxton Park, all decided after Kirk, must be given greater weight than the obiter in Brown, effectively an ex tempore decision.
The Attorney-General submits that s 101 is not invalid and does not exceed the legislative power of the NSW Parliament. That reasoning is based upon a construction of s 101 consistent with the construction adopted in Pallas Newco and the approach in Trives referred to above. The Attorney-General's submissions are adopted. Section 31 of the Interpretation Act has no application and Pallas Newco applies and is binding on the Court. Counsel for the Attorney-General did not submit that it was wrongly decided.
Only the Hickman grounds as the basis for judicial review remain, as a result of Pallas Newco. The lack of owner's consent is not jurisdictional, relying on Woolworths v Bathurst to establish the proposition that a challenge to a consent is precluded by s 101.

[25]

Attorney-General's submissions

The Attorney-General submitted that the Court must consider the effect of Kirk decided since Pallas Newco and as considered in Brown. The Court is arguably a superior court of record which has exclusive jurisdiction otherwise held by the Supreme Court of NSW, a Ch III Court under the Commonwealth Constitution. Robson J was correct in WaterNSW albeit considering s 47 of the WM Act.
The Attorney-General contends that s 101 is effective according to its terms, notwithstanding the principles in Kirk. In Kirk at [98], the Court held that the supervisory jurisdiction of the Supreme Courts "was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of state executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts".
Their Honours went on to say at [100]: This is not to say that there can be no legislation affecting the availability of judicial review in the state Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the state Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error… Legislation which would take from a state Supreme Court the power to grant relief on account of jurisdictional error is beyond state legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.
In light of the principles in Kirk, it is difficult to see why s 101 (s 4.59) of the EPA Act should be interpreted as including the exceptions described in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53 (Hickman) unless it is necessary to preserve the constitutional validity of the sections. That is because the law is now clear that the Commonwealth Constitution preserves the supervisory role of state supreme courts in relation to jurisdictional error. As Garling J observed in Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837 (Carnley) at [15], "[i]t appears now, as a result of Kirk, that the Hickman principle … has little, if any, work to do at State level. State privative clauses can no longer protect an inferior court or tribunal from review by the Supreme Court of NSW when jurisdictional error has occurred" (see also Aronson, Groves and Weeks, Judicial Review of Administrative Action & Governmental Liability (6th ed, 2017, Thomson Reuters) at [18.160], [18.210] (Aronson, Groves and Weeks)).
It is important that Kirk and Hickman were concerned with clauses that exclude jurisdiction altogether, rather than clauses that create a time limit on judicial review applications. So far as the Attorney-General is aware, there has been no decision at an appellate level determining that a limitation period in State legislation is invalid by reason of the decision in Kirk.
In Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14 (Bodruddaza) at [57]-[58], the plurality said, in relation to a limitation period in respect of proceedings under s 75(v) of the Commonwealth Constitution: The fixing upon the time of the notification of the decision as the basis of the limitation structure … does not allow for supervening events which may physically incapacitate the applicant or otherwise, without any shortcoming on the part of the applicant, lead to a failure to move within the stipulated time limit. The present case where the plaintiff was one day late, apparently by reason of a failure on the part of his migration adviser, is an example. It is no answer to say that some unfairness is to be expected and must be tolerated. The above examples are instances where the time limit subverts the constitutional purpose of the remedy provided by s 75(v). Further examples may be suggested from practical experience.
The Court in Bodruddaza at [53] held that a law with respect to the commencement of proceedings under section 75(v) will be valid "if, whether directly or as a matter of practical effect, it does not so curtail or limit the right or ability to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure, as explained in Plaintiff S157/2002".
As Basten JA stressed in Trives at [48]-[49], the reasoning in Bodruddaza in relation to the constitutional limits of the Commonwealth Parliament does not necessarily lead to the same conclusion with respect to the limits imposed on a state legislature. As his Honour put it at [48], "[t]he question in that regard, as identified in Kirk, is whether such a limitation would remove 'a defining characteristic' of the Supreme Court of a State, so as to contravene the requirement of s 73 of the Commonwealth Constitution that such a body continue to exist."
The Attorney-General accepts that the weight of current first instance authority in this Court is that s 101 - and its replacement s 4.59 - does not preclude judicial review for jurisdictional error: Brown at [37]-[40] per Preston CJ; Community Association DP 270253 v Woollahra Municipal Council (2013) 211 LGERA 412; [2013] NSWLEC 184 (Community Association) at [74] per Pain J; Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171 (Gindurra) at [60] per Pain J; Lithgow City Council v Newera Defendo Pty Ltd [2019] NSWLEC 188 at [20]-[23] per Moore J. However, these decisions do not address the dicta of Basten JA in Trives.
In WaterNSW at [219]-[221], Robson J held that s 47 of the WM Act was effective to override "the otherwise available methods of extending the 'judicial review period'." This is partly due to the clear intention in the statute of providing for "certainty on the part of those who have acted, and conducted their affairs, in reliance upon a valid system of regulation": at [221].
In IPM at [70], Pepper J said she would be inclined to follow Brown for reasons of comity. Her Honour had the benefit of Basten JA in Trives. The decision predates WaterNSW.
This Court should adopt the approach, accepted by Pepper J as arguable in IPM at [68]-[69], that a clause imposing a time limit on judicial review may be valid, at least where the time limit is a reasonable one, and that it is further arguable that s 101 (and now s 4.59) is a reasonable limitation. In Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 (Hoxton Park (LEC)) at [53], Biscoe J opined that the three month period in s 101 was reasonable.
In considering whether the limitation period is reasonable, it is important to recall that the limitation period only applies if there has been valid public notice given in accordance with the EPA Regulation. If the public does not receive the notice to which it is entitled under the legislation, then the strict time limit does not operate.
The reasonableness of a limitation period must depend on the nature of the statutory rights and regime in question. In the present case, the essence of a development consent is that it gives permission, following a statutory process for public consultation, to develop land.
In reply to the Waldings' submission that the Court is not the subject of constitutional protection as a specialist statutory court, the Attorney-General contends that, contrary to the suggestion in Basten JA's obiter observation in Randren House CA at [9], if there is any judicial review jurisdiction preserved by the principles in Kirk, it is properly vested in this Court by s 20(2) of the LEC Act.
Strictly, this is a matter of statutory construction, rather than an issue arising directly under the Commonwealth Constitution. It involves concluding that s 20(2) confers on this Court the Supreme Court's judicial review jurisdiction including such jurisdiction as cannot be taken away consistent with the principles in Kirk, and then reading s 101 of the EPA Act as subject to that conferral of jurisdiction. In other words, if there is a "hierarchy" of provisions, as described by the High Court in Project Blue Sky at [70], the leading provisions are ss 20(2) and 71 of the LEC Act, and s 101 should be read as subject to that overarching conferral of such judicial review jurisdiction as the Supreme Court has in relation to the LEC Act.

[27]

Operation of s 101

As the Attorney-General submitted, it is useful to consider the issues arising in the context of s 20(1) and (2) of the LEC Act. This section confers on the Court the same civil jurisdiction as the Supreme Court to determine those matters in relation to which it has jurisdiction as specified under subs (1), subject to s 71 which deals with s 20(1)(e) proceedings referred to in subs (2). Section 71(1) states that proceedings in s 20(1)(e) may not be commenced or entertained in the Supreme Court, subject only to s 58 which concerns appeals to the Supreme Court (the Court of Appeal) in Class 4 proceedings, the judicial review and civil enforcement functions of the Court. Consequently, by virtue of s 20(2) of the LEC Act, the Court has the same powers as the Supreme Court, a Ch III Court under the Commonwealth Constitution. Section 101 should be read in light of the overarching conferral of that judicial review jurisdiction which is equivalent to and shared with the Supreme Court. This was a matter referred to in Brown at [39] as part of Preston CJ's finding in obiter that s 101 should be read so as to preserve the Court's supervisory jurisdiction shared with the Supreme Court to review for jurisdictional error.
The terms of any privative clause under consideration are significant for the purposes of statutory construction, as identified in Pallas Newco. In Pallas Newco, whether a proposed development had a particular character and was potentially prohibited development was found to be a jurisdictional fact. The judicial review challenge was commenced within three months of the council's decision to approve the relevant development so that no time bar arose. The application of s 101 arose in the reasoning of Spigelman CJ as part of his determination of whether the matter in issue was a jurisdictional fact, concluding at [69]-[84] that the degree of inconvenience that could arise from finding that a fact is jurisdictional, and therefore a matter which the Court could determine, is ameliorated by the strict time limits in s 101. Section 101, in contrast to the privative clause considered in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [2003] HCA 2 (Plaintiff S157/2002), provided for a public notice of a decision. Spigelman CJ held at [83]-[84] that a jurisdictional error was not able to be challenged after three months from a valid notice, only errors which fell within Hickman could be. Three other appeal judges agreed with his reasoning. Handley JA considered it unnecessary to resolve the application of s 101, given that its operation did not squarely arise (at [147]).
In Kirk the High Court held that judicial review by Ch III courts in the Commonwealth Constitution could not be ousted by the Australian Parliament. The privative clause in Kirk was written in absolute terms to the effect that no appeal against a decision of the Industrial Court was available. Section 101 is a time limited provision not an absolute privative clause like that in Kirk.
In Brown (2011) Preston CJ stated in relation to s 101 in obiter at [37]-[39] that: 37 Second, even if proper public notice had been given, it would not protect the development consent from jurisdictional error. Before the High Court's decision in Kirk, a privative clause such as s 101 did not protect the development consent from judicial review for certain types of jurisdictional error. These were the three errors identified in R v Hickman; Ex parte Fox (1945) 70 CLR 598, the decision not being a bona fide attempt to exercise power, not relating to the subject matter of the legislation and not being reasonably capable of reference to the power given to the decision-maker, as well as a breach of a requirement "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'": Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [76]. 38 In this case, the ground of challenge that the Council had no power to make the November determination to grant consent to the application, having already made the September determination to refuse consent to the application, is an error of the third kind in Hickman. The ground of challenge of failure to provide notice may fall into the inviolable restraint category of error. 39 After the High Court's decision in Kirk, the full range of jurisdictional error remains subject to judicial review, notwithstanding a privative clause. A privative clause in State legislation cannot validly compromise the capacity of a State Supreme Court to exercise its supervisory jurisdiction (which is constitutionally entrenched) for review for jurisdictional error. The supervisory jurisdiction of the State of New South Wales' Supreme Court is divided between the Supreme Court and the Land and Environment Court, depending on the statute under which powers and functions have been exercised and are subject to review. A privative clause, such as s 101, may remain valid but it will be read down so as to preserve the supervisory jurisdiction to review for jurisdictional error.
In terms of cases that have cited Brown, two are mine. In Community Association I cited Rivers SOS Inc v Minister for Planning 178 LGERA 347; [2009] NSWLEC 213 at [90] where Preston CJ of LEC identified that obiter dicta need not be followed by another judge at first instance including not for reasons of judicial comity. I also considered that the jurisdictional error alleged came within the third Hickman principle to enable the collateral challenge to proceed. In Gindurra one party was not legally represented, there was no effective argument on the effect of s 101 and my finding was also obiter as I found that the requisite notice had not been published for the purposes of s 101, at [59]. My brief obiter finding cited Brown and Community Association at [60]. In Brown the issue does not appear to have been as fully argued as in this case, no reference was made to Pallas Newco and the obiter findings were made by reference to privative clauses in general. In IPM (2016) Pepper J after considering Trives and applying principles of judicial comity held in obiter that Brown was not plainly wrong at [62]-[71]. The necessary issue to resolve which has arguably not been done to date is consideration of the nature of the time limited privative clause in s 101 in the statutory scheme of the EPA Act in contrast to an absolute privative clause the subject of Kirk. I am effectively considering the matter afresh given the far greater extent of argument presented than in Community Association now with the benefit of Trives inter alia. At issue is whether s 101 directly or as a matter of practical effect unacceptably curtails or limits the right or ability of members of the public to challenge a development consent or complying development in light of the Court's functions under s 20(1) and (2) of the LEC Act whereby the Court does share equivalent jurisdiction with the Supreme Court, noting that the Court is not a Ch III Court under the Commonwealth Constitution.
In Trives (2015) the Court of Appeal was considering whether the decision of a certifier to issue a complying development certificate under the EPA Act was a jurisdictional fact, ultimately finding it was not. Basten JA stated in obiter at [45]-[49] (footnotes omitted): 45 In the event that questions of inconvenience and uncertainty were relevant, the applicant submitted that the comfort taken from the restrictive effect of s 101 in Pallas Newco could no longer be relied upon as a result of the decision of the High Court in Kirk v Industrial Court of New South Wales. That case held that a "privative provision in State legislation, which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature". However, the court also stated what it was not saying, namely "that there can be no legislation affecting the availability of judicial review in the State Supreme Courts". 46 The expansion of Kirk beyond its sphere of operation must be undertaken with caution. It was concerned with review by this court of a decision of a superior court of record, albeit one with limited jurisdiction, namely the Industrial Court. It was not, in terms, concerned with decisions of non-judicial bodies. Further, it was concerned with a strong form of privative clause, not a provision imposing a limitation period on otherwise available relief. Both these matters raise difficult questions which should not be determined unless they squarely arise. For example, s 101 of the EP&A Act does not directly affect the jurisdiction of this court to review an administrative decision. It imposes a limit on review by the Land and Environment Court, although the reason for that lies in other statutory provisions which confer exclusive jurisdiction on the Land and Environment Court with respect to the supervisory jurisdiction involving a planning or environmental law, which includes the EP&A Act. 47 The argument assumed that the vesting of exclusive jurisdiction in the Land and Environment Court is effective, but that the imposition of a time limit on the exercise of that jurisdiction is not. 48 With respect to the second aspect, the effect of a limitation period is simply not discussed in Kirk. It was, however, discussed in a case dealing with the scope of possible regulation of the jurisdiction of the High Court, pursuant to s 73 of the Commonwealth Constitution, of a limitation period on review of administrative decisions under the Migration Act 1958 (Cth). That decision, Bodruddaza v Minister for Immigration and Multicultural Affairs, held that a similar (12-week) limitation period (imposed by s 486A of the Migration Act) was not effective to diminish the power of the court to grant remedies under s 75(v) of the Commonwealth Constitution. However, that reasoning with respect to the constitutional limits of the Commonwealth Parliament does not necessarily lead to the same conclusion with respect to the limits imposed on a state legislature. The question in that regard, as identified in Kirk, is whether such a limitation would remove "a defining characteristic" of the Supreme Court of a state, so as to contravene the requirement of s 73 of the Commonwealth Constitution that such a body continue to exist. 49. This is a large question. As Bodruddaza explained, there can be significant practical difficulties with limitation periods expressed in absolute terms which deny any discretion to a court to extend time in circumstances where the justice of the case so demands. On the other hand, decisions under the EP&A Act are quite different in their nature from decisions under the Migration Act and operate in a different context, involving quite different elements of public interest.
In Bodruddaza the High Court considered s 486A of the Migration Act 1958 (Cth) (MA Act) as then in force (it having been amended after Plaintiff S157/2002). The section required applications for relief to the High Court within 28 days of a decision under the MA Act with ability for the High Court to extend that period for up to 56 days. The majority of the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan J) held at [53]-[57] that a law regulating the commencement of proceedings under s 75(v) will be valid if, whether directly or as a matter of practical effect, it does not so curtail or limit the right or ability of applicants to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure, as explained in Plaintiff S157/2002. The practical effect of the provision must be considered. As the section did not allow for the range of vitiating circumstances which may affect administrative decision-making, it was invalid. The section did not allow for supervening events which, through no fault of an applicant, resulted in failure to act within the stipulated time limit.
In terms of weight to be afforded to Trives, Ward CJ in Equity in Ying v Song stated that obiter dicta of appellate courts should be departed from only with caution. In Trives at [48]-[49], extracted above, the question before me is expressed as large, with Bodrudazza referred to as one example where practical difficulties with a time-limited provision under the MA Act was invalid because no discretion was allowed to the High Court to extend time with the further observation that the same conclusion may not apply to s 101 given its different statutory context. As Basten JA identified decisions under the EPA Act are different in nature and operate in a quite different context to the MA Act.
Trives is carefully considered obiter. Consequently Farah Constructions relied on by the Waldings provides useful guidance. While Trives does not answer the ultimate question of the scope of s 101, it not being necessary to do so, it does indicate why careful analysis is required to determine if Kirk does in fact impact on the application of s 101.
In that regard it is useful to consider WaterNSW (2020) in which Robson J considered the application of s 47 of the WM Act, a time-limited provision set out in full above in [8]. Robson J considered the authorities in large part referred to above in relation to s 101 and cited an extract from Aronson, Groves and Weeks. His Honour held at [219]-[221] as follows: 219 At the time of the hearing, there had been little judicial consideration of s 47 of the WM Act (save in Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 at [373]-[385]). However, some consideration was more recently given to s 47 by the Court of Appeal in Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14 at [3]-[9] (per Basten JA) and [94]-[103] (per Leeming JA). Although not germane to the Court's finding, Basten JA noted in obiter dicta (footnote omitted): [9] One further matter should be noted in relation to the operation of s 47 [of the WM Act]. In a footnote to written submissions filed in the Land and Environment Court, counsel for the respondents stated that "there may be a question as to whether s 47 could validly oust review for jurisdictional error". That suggestion elided the effect of s 47 in limiting the jurisdiction of the Land and Environment Court with its entirely separate effect in limiting the jurisdiction of this Court. There can be no tenable suggestion that the jurisdiction conferred on a specialist statutory court such as the Land and Environment Court is constitutionally protected. No issue arose before the trial judge as to the exercise of this Court's supervisory jurisdiction. 220 The weight to be accorded to obiter dicta will vary depending on the circumstances, however considered commentary of appellate courts, although ultimately not binding on this Court, must nevertheless be afforded appropriate weight and would only be departed from with caution. 221 In light of the above, and again noting that the Court received little assistance in relation to this aspect of the matter, I consider that s 47 of the WM Act operates as a bar to the defendants' challenges to the Plan. I find that the careful and explicit wording of the provision makes it clear that the time allowed for challenge is limited, and s 47(3) clearly takes into account and overrides the otherwise available methods of extending the "judicial review period". Despite this, there is a carve out, contained in s 47(2), for any "amendment" of a management plan in the sense that the three month time limitation applies to amendments (except amendments to give effect to a decision of the Land and Environment Court relating to the validity of a plan). Further, given the likely effect on many other parties (who are not involved in the present proceedings) the clear intention of the section, seen in the context of the important and somewhat complex structure of the WM Act and the Plan is to provide for certainty on the part of those who have acted, and conducted their affairs, in reliance upon a valid system of regulation - particularly one that deals with important matters such as water sharing as well as the detailed matters otherwise required to be taken into account in making a water sharing plan as provided for in ss 20 and 21 of the WM Act.
Section 101 of the EPA Act and s 47 of the WM Act are in different terms and operate in different statutory contexts. As identified by Robson J immediately above in [221] of WaterNSW, the wording of s 47 is "careful and explicit" and I would add somewhat emphatic in that s 47(1) states that the validity of a management plan cannot be "challenged, reviewed, quashed or called into question" other than before the Court within the judicial review period. That is defined in subs 2(a) as three months from the date of publication of the plan on the NSW legislation website. Subsection (3) states that this period cannot be extended by any court despite any other Act or law, presumably ousting the operation of the Uniform Civil Procedure Rules 2005 (UCPR) r 59.10. Similar provisions limiting challenges to plan-making functions by a designated person are specified in subs (4). Limits are placed on challenges on the grounds of a breach of procedural fairness in subss (5), (6) and (7). Section 47 is more extensive than s 101.
The purpose of the sections is broadly the same, limiting judicial review of an administrative decision which confers significant rights to take water across a catchment (WM Act) and to undertake development (the EPA Act) three months after a complying public notice has been published. The importance of certainty of decision-making is referred to in the second half of [221] in WaterNSW in relation to the effect of a late challenge to a management plan on numerous other individuals and entities to whom a plan applies and who act in reliance upon it who are not parties to proceedings. Similar considerations arise in relation to s 101, as was emphasised by the Respondents' submissions and has been identified in numerous cases considered in the parties' arguments, including Woolworths v Bathurst, Pallas Newco and Hoxton Park (LEC) inter alia. The facts of this case demonstrate the difficulty that can arise for the holder of a development consent if a challenge is allowed well after the publication of a public notice under s 101 has occurred and reliance is placed on a development consent. Certainty of outcome which results in the conferral of important legal rights and consequent financial investment inter alia is an important consideration in the operation of the statutory scheme in the EPA Act.
An important matter to note is that both s 101 of the EPA Act and s 47 of the WM Act provide for public notification of a specific statutory decision which confers important rights on members of the community, a matter emphasised by the Attorney-General as an important distinction from an absolute privative clause such as that which arose in Kirk. Three months from publication of a complying notice of a development consent has been identified in Woolworths v Bathurst, Pallas Newco and Hoxton Park (LEC) inter alia as a sufficient period to enable certainty for those seeking to rely on a development consent balanced with an opportunity being provided to anyone to challenge such a decision during that period. The importance of certainty of a statutory scheme conferring significant rights on members of the public was a key element in the consideration in Pallas Newco.
The requirement for a complying notice under s 101 in the EPA Act is also important. The requirements for such a notice have been strictly construed. The reason why the findings in Brown, IPM and Gindurra are all obiter is because the public notices purporting to be for the purposes of s 101 in those cases did not satisfy the EPA Act and EPA Regulation requirements. Similarly, in Hoxton Park, the Court of Appeal held that the notice purportedly given in accordance with reg 124 of the EPA Regulation as then in force did not comply, and time to commence judicial review proceedings did not therefore commence to run for the purposes of s 101.
The Applicants correctly identify that no section of the WM Act is identified as an environmental law in s 20(2) of the LEC Act so that, as the Applicants submitted, the divided jurisdiction of the Court shared with the Supreme Court as provided for in s 20(1), (2) and s 71 does not apply to the WM Act. While that is the case, WaterNSW considered as a matter of statutory construction a broadly similar statutory scheme as already discussed above. Essentially the same arguments as I have heard in relation to s 101 were before Robson J and his reasoning is pertinent. Nor should WaterNSW be distinguished solely on the basis it concerned criminal proceedings in which a collateral challenge to an administrative instrument was attempted. The underlying statutory construction issues remain similar.
The significant matter which did not need to be considered in Brown and IPM, and was not by me in Community Association and Gindurra is the difference between the time-limited provision in s 101, the importance and adequacy of the three month public notification period and the different nature of the absolute privative clause in Kirk. The matter is very finely balanced but I ultimately consider that Kirk does not require that long-established caselaw concerning the application of s 101 ought to be put to one side.
Although not central to my reasoning, I note that reference was made to s 31 of the Interpretation Act, which requires that an act should be construed as operating to the full extent of the legislative powers of Parliament, but not so as to exceed that power. Nothing in Kirk suggests that s 101 does not accord with the powers of the NSW Parliament.
I consider the application of Kirk to s 101 in the statutory scheme in the EPA Act does not require a change from the approach in Pallas Newco, which affirmed the importance of the three month period in limiting the period of uncertainty for holders of development consents. The continued application of the Hickman principles as recognised in Pallas Newco must therefore also be considered.
Ultimately for the reasons already expressed, I consider the Applicants' judicial review challenge is time-barred in relation to Ground 1 save for the application of Hickman, which I discuss next.

[28]

Do Hickman principles apply to Ground 1 error?

The Hickman principles were recognised in Pallas Newco as continuing to apply to permit judicial review proceedings in limited circumstances. Aronson, Groves and Weeks identify that limitation periods raise both interpretive and constitutional issues. In relation to time limitations in privative clauses such as s 101, at [18.210] they state: Provisions in New South Wales planning legislation allow appeals to the Land and Environment Court against the validity of certain instruments and decisions, but only if they are commenced within three months of notification. The deadlines are not expressed to apply to the Supreme Court, and their validity remains unresolved. [With reference to Trives at 280-281 and IPM at [62]-[71].] Prior to Kirk and S157, the Court of Appeal treated one of the deadlines as being almost wholly effective, subject only to Hickman's first three provisos, plus its "second step", namely, that there be no breach of any "imperative duties or inviolable limitations or restraints". [With reference to Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; [1999] NSWCA 6, Pallas Newco and Lesnewski.] The requirements of procedural fairness represented inviolable restraints. If, as we argue at [18.160] Hickman's formulaic components have not survived S157 and Kirk, that reading of the limitation provisions might need to be revisited.
Aronson, Groves and Weeks extracted above observes that Pallas Newco recognised that s 101 was wholly effective subject only to the Hickman principles including that there can be no breach of any inviolable limitations or duties continued to operate. If their argument that Hickman does not survive Plaintiff S157/2002 and Kirk is correct they observe that the reading of s 101 may need to be revisited. This issue I consider is also at large in relation to s 101.
Similar to Pallas Newco, in Anambah Homes (2005) the Court of Appeal upheld the application of the Hickman principles in holding that a challenge to a condition in a grant of development consent was available due to the nature of the error despite a notice being issued under s 101 and the three month time limit having elapsed before proceedings were commenced.
Given these Court of Appeal cases it is difficult to conclude that Hickman is no longer relevant where a time limited privative clause is otherwise effective. Aronson, Groves and Weeks in [18.160] states that the High Court has not issued a formal death certificate for Hickman and goes on to argue that effectively it has. In a footnote Aronson, Groves and Weeks cites Director General, Department of Health (NSW) v Industrial Relations Commissioner (NSW) (2010) 77 NSWLR 159 at 163 where the Court of Appeal accepted that in light of Kirk the Hickman principles no longer applied in relation to s 179 of the Industrial Relations Act 1996, considered by the High Court in Kirk (Spigelman CJ, Tobias JA and Handley AJA agreeing) at [15]. That finding, given the statutory context is unsurprising. Carnley [2010] referred to by the Attorney-General is also cited in the same footnote. That case concerned s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act, now repealed) which provided for limited review of decisions of the Consumer, Trader and Tenancy Tribunal. Given that Kirk dealt expressly with the importance of not limiting the Supreme Court's supervisory powers over inferior tribunals the observation at [15] that Kirk means that Hickman has little work to do at state level arises from that particular statutory context. As Pallas Newco continues to apply, the Hickman principles must be considered.
I now consider whether Ground 1 comes within the Hickman principles. In Hickman Dixon J at 615 stated that an administrative decision cannot be challenged unless it is not a bona fide attempt to exercise power, does not relate to the subject matter of the relevant legislation, and is not reasonably capable of reference to the power given to the body. The Hickman principles have been extended to include two other exceptions, whereby s 101 does not protect: 1. a breach of a requirement "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'" (Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; [2005] NSWCA 99 (Lesnewski) at [76]; Anambah Homes at [111]); 2. and certain denials of procedural fairness per Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; [1999] NSWCA 6 at [158]( not applicable in the present case).

[33]

Applicants' submissions

Under s 79C the relevant considerations a decision-maker must take into account are those either expressed in a statute or those determined by implication from the subject matter, scope and purpose of the statute (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend) at 39-40 and 55).
The expressed relevant considerations for the assessment of a DA are expressed in s 79C of the EPA Act (now s 4.15) and include, (b) the likely impacts of that development including environmental impacts on both the natural and built environments and social and economic impacts in the locality; (c) the suitability of the site for the development; and (e) the public interest. The Council could not have appropriately considered matters in (b), (c) and (e) (particularly, the "suitability of the site for the development") if it was not adequately seized of what the site was and who owned it.
Consideration requires an active intellectual engagement with the facts and circumstances forming an essential part of the matter that must be considered. The quality of engagement necessary to satisfy the legal standard of having considered a matter was explained by Kiefel J in Tickner v Chapman (1995) 57 FCR 451 as follows (at 495, 497; see also Black CJ at 462, Burchett J at 476-477).
Further, commonly implied into statutes is an obligation on a decision-maker to consider the most accurate information available to the decision-maker. This principle was stated by Mason J in Peko-Wallsend: [T]here may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker, [or on] the most recent and accurate information that the [decision-maker] has at hand.
The obligation can require the decision-maker to ensure the accuracy of the information on which a decision is to be based, and the failure to do so may constitute an actual or a constructive failure to consider a relevant matter. One expression of that principle is that a decision is invalid if the decision-maker has "a fundamental misconception of what is admitted to be a consideration of significance" (Laremont v Minister for Immigration & Ethnic Affairs (1985) 9 ALN N13; [1985] FCA 602 (Laremont), quoted in GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 (GTE), Burchett J at 337 and see also Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561 (FCA) (Sezdirmezoglu); Tickner v Bropho (1993) 40 FCR 183; Black CJ at 197-199).
In dealing expressly with relevant considerations imposed by s 79C of the EPA Act, Preston CJ has said that a purported exercise of the statutory power has no validity where a condition for the exercise of the power has not been fulfilled (Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69 (Conservation of North Ocean Shores) at [19]). In Conservation of North Ocean Shores Preston CJ was considering a provision of an environmental planning instrument that required the consent authority to be satisfied that the development was consistent with zone objectives before granting consent:
There needs to be evidence of this consideration. In Hortis v Manly Council (1999) 104 LGERA 43; [1999] NSWLEC 151 (Hortis) Sheahan J said from [171] with emphasis added: … Following Franklins and Currey, the court must draw from the evidence in this case the inference that the Council failed to address its mind to cl 10 and cl 17 of the LEP, and in doing so committed an error of law. The consent granted is, therefore, invalid, in accordance with s 91(2) of the EP&A Act.
There was clearly no "actual knowledge" in this case (using the language of Stein JA in Franklins Ltd v Penrith City Council [1999] NSWCA 134 cited at [169] in Hortis) that the application related to the Council land.
In Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11; [2006] NSWLEC 365 (Arrawarra Beach), Talbot J said at [42] with emphasis added: It is not in dispute that the Council was required to consider the objectives of the Marine Parks Act under s 79C of the EP&A Act and cl 22(4) of LEP 2000. Nor is it in dispute that the Council did not consider the objectives as required. The Council officer's report contains no reference to the Marine Park, so the inference can be drawn that the issue was not considered by Council when determining to grant consent to the development application. In Franklins Limited v Penrith City Council [1999] NSWCA 134 Stein JA expressed the following opinion regarding the application of the presumption of regularity where a clause of an environmental planning instrument prohibited development unless the consent authority formed an opinion of satisfaction about a matter: What is here involved is a question of power. If the pre-condition in cl 32(2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an 'essential condition' or preliminary to the exercise of the power, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 and Timbarra Protection Coalition Inc. v Ross Mining NL [1999] NSWCA 8 per Spigelman CJ at paras 42 and 94. Accordingly, the Land and Environment Court and this court on appeal can review whether the Council held the requisite satisfaction. The presumption of regularity has no part to play in this consideration.
This case is as per both the Hortis cases, Franklins and Currey v Sutherland Shire Council (1998) 100 LGERA 365. There is no evidence of any "actual knowledge" that the site included the Council's own land. As in Arrawarra Beach, the council officer's report contains no reference to the land being owned by the Council, so the inference must be drawn that there could not have been the requisite state of satisfaction reached. That remains uncontradicted (indeed, accepted) by the Waldings.
For those reasons, there is clearly a failure to consider the mandatory matters in s 79C(1)(b), (c) and (e) where the Council is not properly seized of what "the site" the subject of the DA actually is. Such a failure is jurisdictional (per Preston CJ in Conservation of North Ocean Shores), and subject to consideration of discretionary matters, enables the Court to declare the consent invalid.

[34]

Waldings' submissions

The Applicants contend that there was a failure to consider the matters in s 79C(1) (b), (c) and (d) of the EPA Act. The Delegated Authority Report expressly refers to and considers the matters in s 79C(1)(b), (c) and (d). This included a thorough consideration of the impact of the proposed garage, albeit on the assumption that it was to be constructed on the land of the Waldings. Having considered those matters, the Delegated Authority Report recommended that the DA was satisfactory and recommended approval. The recommendation was adopted by the decision-maker.
The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Peko-Wallsend per Mason J at 39. The identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision-maker to act, rather than from the particular facts of the case that the decision-maker is called on to consider: Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 (Abebe) at [195] per Gummow and Hayne JJ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) at [73] per McHugh J. The contention here is that there was a failure to take into consideration the fact that part of the development was on land owned by the Council. This is not, of course, a mandatory consideration set out in either s 79C(1)(b), (c) or (e) of the EPA Act. Thus, the decision-maker was not bound to take it into consideration, although it may well be a relevant matter which the decision-maker was entitled to consider.
The Applicants' contention is based on the decision-maker having made an error of fact in assuming that the development was to be carried out on land owned by the Applicants for consent and was unaware that part of the land on which the development was to be carried out was owned by the Council. It is well established that it is erroneous to equate irrelevancy to factual incorrectness or relevancy with factual correctness: Akpan v Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47 (Akpan) at 50 (Sheppard J); Brunetto v Collector of Customs (1984) 4 FCR 92 at 97 (Toohey J); Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100 at [72]-75]; Broad Henry v Director-General of the Department of Environment and Conservation (2007) 159 LGERA 172; [2007] NSWLEC 722 (Broad Henry). There is also no error in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54; [1987] HCA 25 (Waterford) at 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 (ABC v Bond) at 356; Bruce v Cole (1998) 45 NSWLR 163 at 187; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 (Eshetu) at (138); Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 (Enfield) at [44].. Accordingly, Ground 2 has not been made out.

[35]

Ground 2 not established

I have already found that the existence of owner's consent is a jurisdictional requirement for the grant of development consent. That finding arises from the statutory scheme in the EPA Act and EPA Regulation. The circumstances of this case where it is accepted that the Council did not know that it was considering a DA in relation to land it owned do not sit comfortably with the authorities such as Hortis, Currey, Franklins, Conservation of North Ocean Shores and Arrawarra Beach relied on by the Applicants. The Applicant is not relying on an express or implied pre-condition to the exercise of power to grant development consent in terms of any of the broad matters identified in s 79C(1) /s 4.15. There was no failure to consider in the sense of ignoring or not considering a required matter in that part of the EPA Act, as the Waldings also submitted. The Council did assess the DA over the land the subject of the DA for the purposes of s 79C(1) / s 4.15, as the Waldings submitted in [150] above. There was no failure to consider a mandatory relevant consideration for the purposes of s 79C / s 4.15, as the Waldings submitted in [151] above, relying on Abebe and Yusuf.
Submissions about the desirability of having the most up-to-date information can all be accepted but once again are not particularly apt for the circumstances. Neither the Waldings nor the Council knew of the error underpinning the DA plans. The Applicants allege there was a failure to ensure the accuracy of the information on which the decision is to be based, citing Laremont quoted in GTE, Sezdirmezoglu and Tickner v Bropho. None of those cases are addressing circumstances similar to this matter including this statutory regime. In GTE the issue was a Commonwealth Minister's decision about the pricing of light globes due to insufficient accurate information on a key matter relevant to a decision under the Customs Tariff (Anti-Dumping) Act 1975 (Cth). At issue in Sezdirmezoglu was the adequacy of briefing the relevant Commonwealth Minister in relation to a decision to issue a deportation order under the MA Act. Tickner v Bropho was concerned with ministerial decision-making by the relevant Commonwealth Minister of whether to issue an emergency protection order under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and his failure to obtain up-to-date information on a relevant matter he was aware of. The Council's wrong assumption of fact about who owned the land in issue is not an error of the same character.
The Waldings' submissions accurately characterise what is obvious - the Council was mistaken about a matter of fact. That it was an important matter because of the statutory scheme means that I have already held that mistake gave rise to a jurisdictional error. I otherwise agree with and accept the Waldings' submissions as set out above in [152] and the authorities cited therein of Akpan inter alia cited in Broad Henry at [124] to the effect that proper consideration of a relevant matter does not demand factual correctness. And most relevantly, no legal error necessarily arises from a wrong finding of fact: Waterford at 77 cited in ABC v Bond at 356, Bruce v Cole at 187, Eshetu at 654, Enfield at 154, all cited in Moorebank Recyclers Pty Limited v Liverpool City Council at [75]. More accurately, the Council proceeded on a wrong assumption of fact concerning who owned the land the subject of the Waldings' DA but the authorities nevertheless address that circumstance. Ground 2 is not established.

[37]

Applicants' submissions

The fourth ground of challenge is unreasonableness. At the time of granting the consent, the Council was not aware that part of the proposal (the concrete block garage and roof terrace) was to be carried out on a public road reserve. Put simply, it was unreasonable to grant consent to development on land when the consent authority was not aware of what the land actually comprises, particularly, that it comprised public land it owned and controlled.
Accordingly, no other decision-maker acting rationally would reasonably have made the same decision, by reference to the principle in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury), to the effect that a court will hold invalid a purported exercise of discretionary power statutorily conferred upon a repository of that power that is so unreasonable that no reasonable repository of that power could have made the impugned decision pursuant to the exercise of that power (at 234).
The principle has long-standing application in Australia: Eshetu at [124]; Abebe at [116]); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [40]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [123] and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li). As the Court in Li noted, a standard of reasonableness in the exercise of any discretionary power conferred by the legislature was demanded well before the decision in Wednesbury, at [64]-[66].
It is accepted that in Li, Gageler J observed that "judicial determination of Wednesbury unreasonableness in Australia has in practice been rare", at [113] and that it must be borne in mind not to trespass into the merits of decision-making. However, as Gageler J opined in Li at [108]: [j]udicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.
In Wednesbury itself, Lord Greene MR at 229 referred to the relevant unreasonableness as "something so absurd that no sensible person could ever dream that it lay within the power of the authority". In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, Lord Diplock defined Wednesbury unreasonable decisions as those which "looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them". In Puhlhofer v Hillingdon LBC [1986] AC 484 (Puhlhofer) at 518, Lord Brightman said that the unreasonableness must be "verging on an absurdity" cited by Gleeson CJ and McHugh J in Eshetu at [41].
Here it is absurd (or manifestly illogical or unreasonable) to postulate that a consent authority can exercise a power, acting rationally, without knowing or considering that it was approving development over its own public land, nor considering the consequences of that decision.
It is equally absurd (or manifestly illogical or unreasonable) to view the fact of landowner's "consent" (assuming Claude Neon assists the Waldings which imports with it an element of knowledge about what is to occur and control by that person or entity to then allow or authorise development in the absence of an informed process, and is given unconsciously or unknowingly.
Again, there is no doubt that such an error is fundamental to the administrative decision to grant consent and can form the basis of an order for the Court to declare the consent invalid (Manning v Bathurst Regional Council (No 2) (2013) 199 LGERA 147; [2013] NSWLEC 186).

[40]

Uniform Civil Procedure Rules 2005 r 59.10 - extension of time to commence proceedings / exercise of discretion to grant relief

My finding upholding of Ground 1 and the application of the Hickman principles, means that I should consider whether leave under UCPR r 59.10 should be granted. Under UCPR r 59.10 judicial review proceedings must be commenced within three months of the date of the decision, subject to the discretion of the Court to extend time as provided in UCPR r 59.10(2).
It is necessary to consider the exercise of discretion in relation to: (i) whether the Court should exercise its discretion to extend time pursuant to UCPR r 59.10; and (ii) whether the Court should exercise its discretion to order, as sought by the Applicants in their Amended Summons, the demolition of all buildings, structures or works purportedly erected or carried out in reliance on the development consent on the Dedicated Land including but not limited to the concrete block garage and roof terrace. The voluminous evidence relied on by the parties in relation to discretion is set out below. As it is difficult to separate out the factors relevant to UCPR r 59.10 from the overall exercise of discretion in granting relief, I will set out all the evidence in one location.
UCPR r 59.10 provides: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following - (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.

[42]

Affidavit of Lin Lu

The Applicants read the affidavit of the First Applicant Ms Lin Lu affirmed 19 June 2019. Ms Lu deposed that she was authorised to make the affidavit on behalf of the Second Applicant, Mr Woo, her husband. Ms Lu and Mr Woo are the registered proprietors of the Lu Property.
Ms Lu deposed that prior to purchasing the Lu Property in November 2009, she and Mr Woo had a conversation with real estate agent Mario Esposito of Klaric Partners about the grassed area at the front of the Lu Property facing Clontarf Street in which Mario said words to the effect "this land is yours [in front of the house], but you can't build anything on it". At the time of that conversation Ms Lu understood that there was some restriction on the use of the land identified by the real estate agent in front of the Lu Property and that she and her husband would not be able to carry out any development on that part of the land.
After completion of the purchase of the Lu Property Ms Lu located a folder left at the Lu Property by the vendor. The folder contained an application for a building certificate together with a survey plan dated 19 July 2007. Based on her review of the survey plan, Ms Lu understood that an area of 46.5 square metres was excised from the Lu Property for road widening. The Lu Property and the Walding Property shared a side boundary of 36.576 metres which extended to the location approximately in line with her letterbox and the survey plan contained a reference "G620017" which she believed was related to the proposed road widening.
In late 2016 Ms Lu met the Waldings outside the Lu Property. They had a conversation in which Mr Walding said words to the effect "we plan to carry out some renovations to our property. We want to put in a garage similar to yours. It would go there [pointing to an area above the rock embarkment] and end here [pointing to the area near my letter box]". Mrs Walding also said words to the effect "we might also construct a deck to let our dog out". Ms Lu understood the proposed garage and deck would be roughly in line with the verandah on the Lu Property. The Waldings lodged the DA with the Council on or about 20 December 2016. On or about 21 December 2016 the Applicants received a letter from the Council notifying them that the DA had been lodged and that they make submissions.
Upon reviewing the Notification Plan for the DA, Ms Lu believed the boundary of the proposed garage would be in line with her verandah and letterbox. On 18 January 2017 the Applicants made a written objection. The Applicants' primary concerns were (i) privacy, particularly in relation to their downstairs living room and outdoor terrace; and (ii) overshadowing and impacts on safe access to their front door.
The DA was determined on or about 9 May 2017. Construction commenced on or about 7 September 2018. In late September 2018 Ms Lu observed that concrete had been poured for the garage beyond the area of her letterbox. This is when Ms Lu first became aware that the Waldings may be carrying out development beyond their front boundary. Ms Lu asked a conveyancer to conduct relevant searches regarding the legal boundaries of the Walding Property. The conveyancer provided Ms Lu with copies of a title search for the Lu Property (Lot 179 DP 11162), a copy of Lot 179 DP 11162, Dealing G620017 (referred to in the title search for the Lu Property), a title search for the Walding Property (Lot 1 DP 119074), and a copy of Lot 1 DP 119074. The conveyancer's invoice is dated 9 October 2018.
On 9 October 2018, Ms Lu sent an email to the Council regarding her suspicion that the Waldings had carried out development beyond their legal boundary including construction of a garage which appeared to extend 4.573 metres beyond the front boundary of the Walding Property. Between 9 October 2018 and mid-November Ms Lu exchanged several communications with various Council employees in order to escalate her complaint about the Walding Property.
Prior to 30 November 2018 Ms Lu had a conversation to the following effect with Mrs Walding: Lin: "Are you aware that your garage is over your boundary?" Alexandra: "Yes, I am aware of your complaint to Council. This was from a historical problem with the register. When we bought our property, we believed that our boundary was up to this tree. We had had a discussion with Council. A Councillor told me that Council would give back the land to each of the 4 houses. The garage is already built and it won't be demolished." Lin: "We will take legal action then." Alexandra: "You can pursue your legal rights if you want. If the Council asks us to demolish the garage, we will sue the Council."
Following this conversation Ms Lu began to prepare an application for the Court and decided to seek advice from a specialist environment and planning lawyer. On or about 5 December 2018 Ms Lu engaged Bick & Steele to provide her with legal advice.
On 7 December 2018 Ms Lu received a letter from David Kerr, General Manager Planning Place & Community at the Council. This letter indicated that the development consent was valid until such time as made invalid by a court.
On 10 December 2018 Ms Lu instructed her solicitor Mr Bick to send a letter to the Council indicating, among other things, that Council had made a jurisdictional error in granting development consent in the absence of written owner's consent from all owners of the land the subject of the DA and of her intention to commence proceedings in the Court unless the development consent was surrendered and the works on Council's land demolished.
On the same day Ms Lu instructed her solicitor to send a letter to the Waldings. This letter outlined, among other things, that if following a survey it was confirmed that the development had been carried out beyond the boundaries of the Walding Property, the Waldings were invited to provide a written undertaking that they would surrender the development consent, demolish all development carried out on the Dedicated Land and restore the Dedicated Land to its original condition. The letter said that unless such an undertaking was provided, the Applicants would commence proceedings in the Court challenging the validity of the development consent.
Ms Lu instructed her solicitor to engage a surveyor to undertake an identification survey to confirm the extent of the front boundary of the Walding Property and whether any development had been carried out on land dedicated to the Council for the purpose of road widening. A survey report dated 12 December 2018 was prepared by Rygate Surveyors which Ms Lu said showed that the concrete block garage and roof terrace under construction were located wholly within the Clontarf Street road reserve, the Dedicated Land.
On 17 December 2018 Ms Lu caused her solicitor to send a further letter to the Council enclosing a copy of the survey prepared by Rygate Surveyors. A letter was also sent to the Waldings stating among other things that the survey confirmed the garage and roof terrace under construction were located within the Council's road reserve and requesting a written undertaking that the Waldings would cease construction and demolish or remove all parts of the development carried out beyond the boundaries of the Walding Property.
On 5 February 2019 Ms Lu instructed her solicitor to send a letter to the Waldings seeking urgent confirmation whether the requested undertaking would be provided and indicating that unless such undertaking was provided by 12 February 2019, a Class 4 summons would be filed in the Court.
On 6 February 2019 Ms Lu was approached by Mrs Walding and had a conversation about privacy concerns in which Mrs Walding said words to the effect "Can you talk to Fred [Mr Woo] to see if you are happy if we did some visual screening to address the privacy issues? This will save on legal costs."
On 11 February 2019 Ms Lu's solicitor received a letter from Mills Oakley solicitors acting for the Waldings. Following further communication between solicitors for the Applicants and the Waldings, Ms Lu instructed her solicitor to file and serve the Class 4 summons on 13 February 2019.
Regarding visual impacts and privacy, Ms Lu deposed that the concrete garage with roof terrace is causing significant visual impacts on the Lu Property, in particular the direct views from the roof terrace into her main living room on the ground floor and outdoor deck. Since erection of the garage Ms Lu has been forced to keep the blinds in the living room closed to prevent people looking into her house. Ms Lu avoids using the outdoor deck and upstairs living area balconies because of privacy concerns.
Concerning safety, Ms Lu deposed that she has a number of safety concerns regarding the proximity of the garage to Clontarf Street including that because of the two metre front setback from the street of the garage, if a car was parked in the driveway it would be impossible to walk along the footpath without walking onto the street. Ms Lu also expressed concern that any vehicle parked in the driveway would obstruct views of the street to the north, preventing a pedestrian wishing to cross the street from looking left down the road to check for traffic. Many children regularly cross the street. Ms Lu was also concerned that large pot plants installed near the edges of the roof terrace may fall from strong winds or being accidentally pushed off the roof terrace. Ms Lu said this would pose a serious safety hazard to people walking nearby including family or visitors walking to the front door of the Lu Property.
Concerning the discovery of legal error, Ms Lu said that as soon as she became aware that the proposed garage might be located beyond the boundary of the Walding Property she notified the Council and requested they take steps to cease construction. Despite significant correspondence between herself and several council officers, the Council failed to take any action to prevent construction of the garage.
On 6 June 2019 Ms Lu received an email from the Council informing her that no sale of the land would occur whilst court proceedings are ongoing and that sale of the road reserve would require a formal public process including a council resolution.

[43]

Cross-examination of Ms Lu

In cross-examination Ms Lu was asked whether, upon receiving the "Notice of Proposed Development" and attached Notification Plan from the Council, she took note of the measurements shown on the plan. She replied that she did not carefully see the numbers because she is not a professional planner. She did not look at any of the numbers on the plan. At the time, all she knew was that the garage was within the Waldings' boundary as she understood it. She agreed that it is fair to say that all she did when she received the plan was to look to see whether the garage was within the Waldings' boundary. She did not try to assess how far in front of the Walding Property the garage was to be built.
Ms Lu was taken to par 26 of her affidavit where she said that she understood that the proposed garage and roof terrace would be located in the area depicted on the Notification Plan. When asked if she now understands that the garage was in fact built in the position shown on the plan sent to her by the Council, Ms Lu repeated that all she knew at the time was that the Waldings' development was within their legal boundary and that she knew where their legal boundary was. It was then asked how she could say that she understood that the proposed garage and roof terrace would be located in the area depicted on the Notification Plan if she did not know where everything was to be built. Ms Lu said she used common sense, expecting that all information provided to her by the Council would be correct. She disagreed that it was misleading to say that she understood that the proposed garage and roof terrace would be located in the area depicted on the Notification Plan. When she received the Notification Plan she thought all the information on it was correct. When asked if when she received the Notification Plan she looked at the distance between the front of her own house and the garage, she said she did not notice that. She did not compare any lines for her house to the Walding Property. Nor did she compare the distance from her house to the start of the garage when she sent in her objection.
Turning to events in 2009 when Ms Lu purchased her home, she agreed that she was told by real estate agent Mr Mario Esposito (Mario) that the area in front of her house was her land but that she could not build anything on it. She did not analyse the conversation with the real estate agent. She never thought about development at the front of her property. Ms Lu did not agree that at the time she thought she owned the land going all the way up to the street but could not build on it. She agreed that she was told by Mario and understood that land in front of the letterbox was hers and that she could not build on it.
Ms Lu agreed that she found a folder left at the Lu Property by a previous vendor. She could not remember the precise circumstances around finding the folder, such as whether she or her husband first discovered it or whether it was handed to her by the real estate agent.
Ms Lu was taken to a document that was contained in the folder, an application for a building certificate lodged for the Lu Property in 2008, with an identification survey attached. Ms Lu agreed that at the time she understood, because of what Mario had told her, that the land in front of the letterbox of the Lu Property was hers but that she could not build on it. She agreed that when she looked at the identification survey she recognised that she could not build anything in front of the letterbox because of road widening. She did not focus much on the issue because she did not want to undertake any development in front of the house. She agreed that when she looked at the identification survey she knew that she owned the area shown as road widening.
Referring to a conversation with the Waldings in late 2016 recorded in Ms Lu's affidavit, Ms Lu agreed that she did not make any written notes of that conversation. The conversation came about accidentally when Ms Lu ran into Mr Walding outside. Ms Lu said that Mr Walding said "we are going to build a garage similar to your garage" and did some hand gestures to show where the garage would be. Mrs Walding who was at the top of the house heard the conversation and said words to the effect that they might also have a deck on top of the garage to let their dog out.
Ms Lu agreed that when she spoke to the Waldings in late 2016 she had not received any further information about the road widening proposal in front of her letterbox since looking at the identification survey in the folder in 2009. She did not agree that when she had the conversation with the Waldings in late 2016 that she believed that she owned the land in front of her letterbox. She said she only knew that her boundary was her letterbox. She did not agree that when she looked at the identification survey in the folder that she knew she owned the part shown as road widening. She did not accept that this contradicted her earlier oral evidence. She said she always maintained that her front boundary was her letterbox. When asked when she first thought she did not own the land in front of the letterbox, she said this was from when she purchased her property. She said that she always believed the front boundary of the Walding property was in line with her letterbox. Ms Lu agreed that she never indicated to the Waldings that their boundary only went up to about her letterbox. When asked if at any time prior to meeting with the Waldings after the commencement of construction she said to them that their boundary did not extend beyond her letterbox, she replied that she did not say anything about the boundary to the Waldings.
When asked how she formed the view that the boundary of the Walding Property was in line with her letterbox, Ms Lu replied that she formed that view based on the identification survey from the folder and based on common sense as the letterboxes are in line with each other.
Ms Lu agreed that when she lodged her objection with the Council in 2017 she did not make any reference to what she believed to be the boundary of the Walding Property. She said that she did draw a picture that showed their garage in line with her garage.
Ms Lu was then asked several questions about the privacy impacts of the garage being her main concern with the development and the possible ameliorative measures that could be put in place.

[44]

Affidavit of Adrian Walding

The Waldings read the affidavit of Mr Adrian Walding affirmed 9 August 2019 which included several annexures. Mr Walding deposed that when he and his wife Mrs Walding purchased the Walding Property in 2014, he was not aware of any land reservations concerning the grassed area at the front of the Walding Property facing Clontarf Street. His family has always treated this area as their own including mowing the lawn and maintaining the garden.
Mr Walding said he and Mrs Walding attended a pre-lodgement meeting with the Council's Senior Development Officer in May 2016 prior to lodging the DA and were advised to approach their neighbours regarding the proposed garage to ensure they did not have any objections. In the next few months Mr and Mrs Walding spoke with Ms Lu outside the Walding Property and explained where they intended to build the garage. Ms Lu did not raise any objections. Between August 2016 and December 2018 preparatory works were undertaken including preparation of a geotechnical report, excavation, and relocation of gas pipes. On or around 4 December 2018 Mr Walding spoke with Mr Woo about the relocation of gas pipe work being undertaken.
On 10 December 2018 Mr Walding had a conversation with Mr Dan Goodwin, building surveyor at the Council, during which Mr Goodwin said words to the effect "only the Court or Council can do that [require you to stop work on the renovation]. You have a valid DA so you can continue with your building works." Mr Goodwin further said words to the effect "the changes in the boundary were made in 1956 and were not updated on the register that we use to check boundaries. I've also checked with our planning office and they have no intention of using the land. This situation happens from time to time on Road Reserves and the Council ends up leasing the land back to the resident… or gifting it back to you."
On 11 December 2018 Mr Walding exchanged emails with Mr Goodwin. Mr Goodwin confirmed that the Applicants' lawyers had no power to force the Waldings to stop work. Another email stated, "you guys have done nothing wrong and nothing illegal has occurred".
On 11 February 2019 Mrs Walding received an email from Ms Lu requesting that pot plants on top of the garage wall be removed due to safety concerns. Mr Walding removed them immediately.

[45]

Affidavit of Alexandra Walding

The Waldings read the affidavit of Mrs Walding, affirmed 9 August 2019. Mrs Walding deposed that during the purchase of the Walding Property in 2014 she was not made aware of any land reservations concerning the grassed area at the front of the Walding Property facing Clontarf Street. As part of the sale paperwork, Mrs Walding was provided with Lot 1 DP 119074 which she believed related to the Walding Property. The Walding Property was purchased through Cunninghams Property who advertised the "potential for off-street parking" which Mrs Walding took to mean a garage could be built on the grass area in front of the Walding Property. Mrs Walding confirmed that since purchasing the Walding Property, she and her family treated the grassed area as their own.
Regarding the DA, Mrs Walding deposed that she and Mr Walding began exploring the possibility of a home renovation in 2015. In mid-2015 they engaged a draftsman to prepare existing and proposed drawings. Mrs Walding used the government LPI website to determine the location of the Walding Property front boundary and it was shown as being in line with the other properties on the street. Mrs Walding described other preparatory steps taken in late 2015 including enquiries to determine whether the renovations would meet the requirements of complying development. On 26 May 2015 she and Mr Walding attended a pre-lodgement meeting with a council officer at which they were advised to approach their neighbours regarding the proposed garage.
At some point in the next few months Mr and Mrs Walding had a conversation with Ms Lu outside the Lu and Walding Properties to the following effect: Adrian: "We plan to carry out some renovations to our property. We want to put in a similar style garage to yours. It would start there [pointing to an area above the rock embankment] and extend out here [pointing to the grass area in front of the Walding Property]." Me: "We wouldn't use the top for entertaining but it would be great to turf it and create more space for our dog."
From June to December 2016 Mrs Walding took steps to prepare for submitting the DA including obtaining a stormwater management plan, geotechnical report, BASIX certificate, landscape plan and SEE. On 20 December 2016 the DA was lodged with the Council. On 9 January 2017 Mrs Walding received confirmation that lodgement of the DA had been accepted and that the neighbour notification period had commenced and would end on 23 January 2017. On 16 May 2017 Mrs Walding received an email confirming that the DA had been approved with stamped plans and conditions of development consent attached. The approval was advertised in the Manly Daily and no objections were raised in the required three-month period.
Regarding the construction certificate, Mrs Walding deposed that she received engineering structural drawings from GZ Consulting Engineers on 12 December 2017. On 22 February 2018 she and Mr Walding met with Mr Goodwin of the Council to lodge their construction certificate and street level applications. On 21 March 2018 Mrs Walding received a letter from the Council authorising her street level application to construct a vehicle crossing. After a site inspection by Mr Goodwin in the week commencing 12 March 2018 and further surveying work, plans and structural drawings, the construction certificate was issued on 19 July 2018. A hydra plan obtained from MGP Building & Infrastructure Services displayed the front boundary of the Walding Property as being in line with all other properties on Clontarf Street.
Mrs Walding deposed that construction commenced at the Walding Property on or around 27 August 2018. From August to November 2018 construction was undertaken including excavation, construction of the steel foundation for the garage floor concrete slab, pouring of the concrete slab for the garage foundation, substantial construction of the block walls of the garage, construction of a steel foundation for the garage roof, and installation of the garage door.
Mrs Walding deposed that she had several conversations with Mr Goodwin in October and November 2018 during which Mr Goodwin advised her that her neighbours had made a complaint about the garage. In late November 2018 Mrs Walding had a conversation with Mr Goodwin to the following effect: Dan: "You do not own the land you have built your garage on." Me: "Oh my God are you serious? How could this happen?" Dan: "In the 1950s Council reserved a section of land in front of 4 houses on Clontarf Street. I'm not sure what for, but they obviously no longer need it. The land register was never updated. I don't know how your neighbours have found out. I think they are using this as their objections to your DA failed." Me: "What do we do now?" Dan: "Try not to worry. People build on Council land all the time [then gave local examples of encroachment issues that had been resolved]. We can sort this out. You won't be told to knock it down. It is likely Council will gift you the land."
Mrs Walding said that Mr Goodwin made a number of subsequent verbal representations to her that led her to believe the Council would resolve the issue. On 3 December 2018 Ms Lu approached Mrs Walding in front of the Walding Property and they had a non-confrontational conversation to the following effect: Lin: "Are you aware your garage is over your boundary." Me: "Yes. I am aware of your complaint to Council. We have just found out the land was reserved in the 1950s and Council did not update their registers. When we bought the property we believed our boundary was in line with all the other properties on the street. I've had a discussion with Council and it is likely they will gift the land back to us instead of having the garage demolished." Lin: "Your survey plan had 'no boundary checks performed' written on it." Me: "I'm so sorry. This is a terrible situation." Lin: "It's not your fault but it's not our fault either. We will take legal action." Me: "I understand. The garage has cost us so much money if we are made to demolish it we will have to sue Council."
On 10 December 2018 Mrs Walding received a letter from Bick & Steele solicitors requesting she and Mr Walding cease building works while a survey be performed. This was the first formal notification received regarding the issue. On 11 December 2018 Mr Walding exchanged emails with Mr Goodwin in which Mr Goodwin stated, "nothing illegal has occurred". Throughout December 2018 Mrs Walding had further correspondence with Bick & Steele and Mr Goodwin.
On or around 24 January 2019 Mrs Walding contacted Mills Oakley seeking legal advice. On 6 February 2019, with the agreement of her solicitor, Mrs Walding approached Ms Lu at the Lu property where they had a conversation to the following effect: Me: "We are keen to resolve this matter without commencing legal proceedings. This will save us both legal costs. I agree the garage doesn't look great right now as the cosmetic finishings were never completed. We intended to put a sandstone facade on the walls and put plants around the top." Lin: "We are concerned about privacy and you can see directly into our house." Me: "We can see you too so neither of us wants that. Maybe we could erect visual screening to address your privacy concerns? Possibly a trellis and landscaping. Can you talk to Fred [Mr Woo] to see if he has any ideas of what could be done? If you commence legal proceedings we will have to defend ourselves." Lin: "Yes I will discuss with my husband."
Following further communications between the parties and their legal representatives in February 2019 and the filing of the Class 4 summons, Mrs Walding deposed that she spoke with a council officer regarding reversal of the road reserve. She also discussed the issue with the owners of 109 and 111 Clontarf Street who both expressed an interest. Mrs Walding was then advised on 6 June 2019 that because of the legal proceedings the Council staff were unable to progress her enquiry.
Mrs Walding deposed that she and her husband have always been eager to resolve the matter without recourse to a hearing and despite wishing to reach a negotiated settlement since February 2019, the first mediation did not occur until ordered by the Court in June 2019.

[46]

Mr Kosnetter

The Applicants read the affidavit of Mr Lee Kosnetter, Director of LK Planning, affirmed 20 September 2019. Annexed to the affidavit were Mr Kosnetter's curriculum vitae (CV), a letter of engagement from Bick & Steele dated 3 September 2019, and Mr Kosnetter's independent expert report dated 18 September 2019 (Kosnetter Report). In the letter of instruction to Mr Kosnetter, the scope of the assignment is described as "an expert report assessing the impacts (including town planning environmental impacts) of the 'as constructed' concrete block garage".
During the hearing I ruled that certain paragraphs of the Kosnetter report could not be read. The Applicants had sought to rely on Mr Kosnetter's opinion that the Council's assessment process was inadequate. In the absence of any substantive challenge to the development consent in these proceedings I did not consider that could be brought forward as part of the argument on the exercise of the Court's discretion.
The Kosnetter report states that it: … provides an opinion on whether there are any unacceptable or unreasonable impacts of the partly constructed garage structure and associated roof terrace, having regard to the applicable planning controls and other relevant matters including those referred to in section 4.15 of the EP&A Act, notwithstanding boundary issues. Despite the structure being built beyond the boundaries of the subject site due to its irregular frontage, I have approached my assessment of the impacts on an assumption that there is, or could be in the future, a "regular" street boundary matching the alignment of the majority of properties along this part of the street.
The impacts observed by Mr Kosnetter were that the garage created unacceptable visual bulk and scale impacts upon the streetscape and the Lu property and unreasonable visual privacy impacts on the Lu Property. The Kosnetter report concludes that the privacy impacts associated with the rooftop terrace's projection forward of the building line are unreasonable. A potential remedy for the visual privacy impact could include fixed screening along the southern side of the terrace, however this would worsen the already unacceptable visual bulk of the structure when viewed from both the street and the adjoining property. The structure fails to satisfy multiple objectives and controls in the Manly Development Control Plan 2013 (Manly DCP), and therefore an assessment against the relevant heads of consideration under the EPA Act.
Mr Kosnetter prepared a supplementary report dated 21 February 2020 (Kosnetter Supplementary Report). Commenting on the report prepared by Mr Anthony Betros, the Waldings' town planner, he stated that Mr Betros has not provided a direct opinion on the acceptability of the building as constructed, but has rather assessed the impacts of a modified form of the building which could be approved. Mr Kosnetter agreed with Mr Betros that potential mitigation measures are available to the Waldings that could sufficiently ameliorate visual privacy impacts upon the Applicants to an acceptable level, but that the visual bulk and streetscape impacts would remain unacceptable and unreasonable. Mr Kosnetter agreed with Mr Betros that the proposed garage, whether modified or as constructed, satisfies relevant controls in the local environmental plan (LEP).
Commenting on the mitigation measure proposed by Mr Betros (see [227] below), the Kosnetter Supplementary Report concludes that proposed reduction of the trafficable area of the terrace has the potential to mitigate privacy impacts. Mr Kosnetter did not agree that the other measures proposed would result in an acceptable built form outcome for the streetscape generally, or a satisfactory outcome in terms of the visual impact on the Lu Property. Replacement of a planter bed with a palisade fence will increase the overall height of the structure, meaning any benefit will be negligible as viewed from the street and the Lu Property. The provision of ivy or climbing plants will soften the appearance of the structure but would not satisfactorily address the requirement in the Manly DCP that garage structures be designed and sited in a manner that does not dominate street frontage.

[47]

Mr Betros

The Waldings read the affidavit of Mr Betros Director of ABC Planning, sworn 15 November 2019. Annexed to the affidavit were Mr Betros' CV, a letter of engagement from Mills Oakley dated 4 October 2019, and Mr Betros' expert report dated 15 November 2019 (Betros Report). Mr Betros was asked to prepare a report assessing the town planning and environmental impacts of the existing concrete block garage on the Waldings' property on the Lu property.
In the Executive Summary, the Betros Report states: 1.6 It is my understanding that the applicant… seek demolition of the garage on the grounds of visual bulk and privacy concerns. The privacy concerns appear to be related to the trafficable terrace atop the garage structure as it would provide opportunities for overlooking to the front areas of the applicants' property. 1.7 Having regard to the above, it is my planning opinion that ameliorative measures could reduce the visual bulk and visual privacy concerns without the need to demolish or relocate the garage and its associated terrace above. 1.8 Such measures include: • Reducing the trafficable area of the terrace and replacing such area with on-slab planting to reduce the potential for direct lines of sight between the terrace and the front areas of the southern neighbouring property. • Reduce the depth of the planter bed walls around the perimeters of the garage from 1-metre to 200mm and provide 1-metre high metal palisade fence atop the 200mm planter. • Provide ivy or climbing plants along the southern side of the garage to soften its appearance. • Provision of a canopy tree within the front setback on the northern side of the garage.
The following statements were made in the Betros Report: • There are numerous garages and structures which are similar in alignment to the garage that has been approved. On this basis, the siting of the garage is not considered to generate any negative visual impacts. • As outlined above, the streetscape inspection revealed that there are other garage and car port structures which have similar alignment to that proposed. There are also brick fences which share the same alignment as the subject garage. • The siting and design of the garage is compatible with the streetscape along the side of Clontarf Street. • Given the siting of the garage forward of the building alignment, and the lack of privacy impacts for reasons outlined above, it is not considered necessary to provide landscape screens. • I concur with the assessment within the Council assessment report, notwithstanding the siting of the garage forward of its front boundary. • I reiterate that the garage alignment is consistent with the predominant alignment of garages, car ports and fencing which share the same alignment, noting that it is only the subject and adjoining 3 properties which have the anomalous front boundary alignment. The irregular shape of the front property alignments of 105 and 111 Clontarf Street may also result in a varied streetscape outcomes. • The garage does not occupy the majority of the site frontage which assists in maintaining landscaping within the front setback whilst landscaping is also located in the road reserve. • I also note that the dwellings on the opposite/ eastern side of Clontarf Street are concealed by dense established landscaped plantings. On the basis, the proposed garage would not generate any inconsistency with the objectives. To ensure that the location and design of driveways, parking space and other vehicular access areas are efficient, safe, convenient and are integrated into the design of the development to minimise their visual impact in the streetscape. • As outlined above, the setback of the garage from the roadway ensures that ingress and egress movements are unlikely to generate any adverse safety impacts. The proposed siting of the garage and the relationship with the roadway is also consistent with other garages and car ports in the street. • It is also noted that there is not footpath along the western side of Clontarf Street, which minimises potential hazards between the driveway and pedestrian movements. • This report has demonstrated that the garage and landscaped terrace above will be compatible in the streetscape along Clontarf Street.
The Betros Report concludes that the garage and landscaped terrace above will be compatible in the streetscape along Clontarf Street. The recommended design changes will assist in achieving a suitable streetscape outcome whilst also minimising visual bulk and privacy impacts to adjoining properties. Mr Betros disagrees with the planning assessment of Mr Kosnetter that it should be demolished.
Mr Betros prepared a supplementary report dated March 2020 (Betros Supplementary Report) in which he did not alter his opinions expressed in his original report. Contrary to Mr Kosnetter's assertions, he stated that he considered whether the Council's assessment was acceptable, as is clear in his first report.

[49]

Waldings' submissions on discretion under r 59.10

The Waldings submitted that these proceedings give rise to substantial prejudice under UCPR r 59.10(3)(b). They began constructing the garage in September 2018 on the assumption they had a valid development consent, granted in May 2017. Construction was all but completed by the time these proceedings were commenced. The same prejudice was identified by Cripps J in Woolworths v Bathurst and Spigelman CJ in Pallas Newco.
In relation to subr (3)(c), the Applicants were aware of the DA and made objections. They gave no evidence of when they became aware of the development consent being granted. The Applicants should have become aware of the decision within three months of it being made, not least because public notice of consent to the DA was published in the Manly Daily on 8 July 2017. The failure to lead evidence from Ms Lu about when she first became aware of the Council's decision to grant development consent should be inferred to be unfavourable to the Applicants' case: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 per Handley JA at p 418-419. The inference arises that Ms Lu knew of the grant of development consent but took no steps to challenge it within three months. By exercising reasonable diligence the Applicants should have become aware of the decision within three months of it being made.
The Applicants' principal submission appears to be that they did not become aware of the effect and consequence of the decision (and not the decision itself) until after construction commenced. This is not an identified consideration under UCPR r 59.10. The Applicants appear to interpret UCPR r 59.10(3)(c) as if it applies to awareness of the consequence of the decision, rather than to awareness of the decision itself.
In cross-examination Ms Lu stated that she only looked at the position of the front boundary of the Walding Property, not the position of the corner of her house in relation to the proposed garage or the distance between the façade of the building on the Walding Property and the rear of the proposed garage. Her evidence about when she knew about the true position of the Walding Property and the rear of the proposed garage was contradictory. If Ms Lu did know or suspect where the true front boundary was, she must have known or suspected the mistake on the notification plans. If so, she did nothing about it.
The position of the garage was easily discernible by looking at the notification plans showing the position of the garage in relation to the Applicants' house. Its position could have been determined by exercising reasonable due diligence.

[50]

Applicants' submissions on overall exercise of discretion to order demolition

The breadth of discretion available to the Court to grant relief under s 124 of the EPA Act (now s 9.46) has been the subject of judicial consideration in many decisions: for example F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306 (Hannan) at 311 per Street CJ; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (Sedevcic) at 339-341 at 339 per Kirby P. There are many examples of the Court ordering demolition as an appropriate remedy to a breach: Woollahra Municipal Council v Sahade [2012] NSWLEC 76; Canterbury City Council v Mihalopoulos [2010] NSWLEC 248; Glaser v Poole [2010] NSWLEC 143; Fairfield City Council v Ly [2008] NSWLEC 322; and Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469, upheld on appeal in Nader v Sutherland Shire Council [2008] NSWCA 265; Georges River Council v Stojanovski [2018] NSWLEC 125 (Stojanovski); and Tweed Shire Council v Taylor [2019] NSWLEC 45 (Taylor)).
The Applicants' case on discretion is threefold. Firstly, a private advantage has been won by the Waldings. No statutory provision expressly empowering a council to alienate public land for a private benefit has been triggered or applies in this case. That process should not occur by stealth or error. The statements of Pepper J in Stojanovski at [30(d)] and Preston CJ in Taylor at [20] are apposite. Private advantage has been won at the expense of public duties imposed under legislation. Equal justice can be secured by ordering demolition.
Secondly, the environmental and amenity impacts of the development are unacceptable and unreasonable. It is incorrect to say, as the Waldings submit, that no adverse consequences flow from the error and that demolition orders sought have no environmental utility. Mr Kosnetter's evidence demonstrates that the impacts of the structure including privacy and amenity, impact on the Applicants and visual impacts on the streetscape are unacceptable and unreasonable. It is Mr Kosnetter's view that even if the structure was modified, it would still have an unsatisfactory impact on the Applicants and the public domain. The Applicants' lay evidence also confirms the privacy impacts of the rooftop terrace.
Thirdly, the Council's assessment of the impacts of the development was cursory at best. The fact that an approval was already granted should not operate as a shield when the Court looks at the impact of the garage on the Applicants. The material submitted with the DA was deficient. Schedule 1 of the EPA Regulation requires a site plan to accompany a DA which refers to location, boundary dimensions, site area, north point of the land and location and uses of adjoining buildings (Sch 1 cll 2(1)(a) and 2(2)). The site plan that accompanied the DA was incorrect in several respects including: (i) it incorrectly identified the boundary of the site the subject of the DA; (ii) it did not show the Dedicated Land; and (iii) it did not show the adjoining dwelling at the Lu Property in enough detail to enable the relationship between the proposed garage and the Lu Property to be properly understood. The Council also did not consider plans that adequately showed elevations in dimensions in sufficient detail.
The SEE that accompanied the DA was also deficient in a number of respects including for a failure to mention any intention that the garage roof would be trafficable or an assessment of the associated amenity impacts.
The Council's assessment of the privacy impact on the Applicants was non-existent insofar as it concerned the terrace above the garage. It is clear from the Delegated Authority Report that the Council concluded that the proposed garage would not directly overlook private open space at the Lu Property. There is no assessment of the trafficable roof terrace. Photographs in evidence showing people on the roof of the garage and town planner's evidence demonstrate that the Council's assessment of the privacy impacts significantly understated the full impacts of the garage now constructed.
The Waldings have asked for unspecified orders under s 25B of the LEC Act. If the whole of the development consent is declared invalid, the Applicants would not oppose a s 25B order being made in respect of the development wholly contained within the Walding Property. Demolition of the part of the structure on the Dedicated Land is sought by the Applicants.

[51]

Waldings' submissions

The Waldings submitted that if the Court finds that the Applicants have established that the grant of consent was invalid, the Court should not make any declaration of any of the orders sought by the Applicants in the exercise of its discretion. In addition, the Waldings have made reasonable open offers to ameliorate any impacts the garage might have on the Applicants' property even though the Council, in granting consent, considered those impacts to be acceptable.
The approach of Cripps J in Liverpool City Council v Roads and Traffic Authority (1991) 74 LGRA 265 at 277-280 to the exercise of discretion is apposite to the present circumstances. Notwithstanding that the applicant in that matter had established a breach of the EPA Act, Cripps J declined relief, dismissed the proceedings and ordered the applicant to pay costs: Liverpool City Council v Roads and Traffic Authority [No 2] (1992) 75 LGRA 210) (Liverpool City Council (No 2)). He found that in all the circumstances, the making of an order would have no real environmental utility, and so it is here. No real environmental utility would be served by the making of an order for the demolition of the garage or any other order. No adverse consequences flow from the error as to land ownership. The impact of the garage on the Applicants' land was fully assessed by the Council. No challenge is made to the grant of consent based upon the Council's consideration of the impacts on the Applicants' land. Further, the Waldings have offered to carry out ameliorative measures to further reduce the impact of the garage. In Liverpool City Council v Roads and Traffic Authority, a significant discretionary factor was that the proceedings were not commenced until after construction was well advanced. So it is here. The proceedings were not commenced until the garage was effectively completed.
In further answer to the Amended Summons, the Waldings rely upon the following: 1. The Waldings were, on the date of the lodgement of the DA on 20 December 2016, the registered proprietors of Lot 1 DP 119074 which is known as 107 Clontarf Street, Seaforth. 2. Six Maps is a website published by the NSW Government to be used by the public to identify the boundaries of land on aerial photographs. The boundaries in the screenshot in evidence (EB p 70) is the same as in the SEE dated 15 December 2016 and in the Council's Delegated Authority Report dated 9 May 2017. Mrs Walding viewed the Six Maps website to see the location of the front boundary. No such disclaimer as identified by the Applicants appears when viewing property boundaries on the Six Maps website. The Applicant commented on this submission to the effect that the evidence at EB p 70 is an undated screenshot of a Six Maps image of the Walding Property. A disclaimer does appear at the bottom of the image, indicating that the report is provided for information purposes only and that LPI does not warrant or represent that the information is free from errors or omissions, or that it is exhaustive. 1. At all relevant times since the publication of Six Maps, Lot 1 DP 119074, as it appeared on the website, showed the street frontage extending to a position which included the Dedicated Land. This is confirmed by the evidence of Mrs Walding that she looked at the Six Maps website in about mid-2015 as identified in her affidavit. The SEE and the Council's Delegated Authority Report all show the same front boundary location as including the Dedicated Land. The Applicants commented on this submission to the effect that Mrs Walding deposed that she checked Six Maps in mid-2015 and it (incorrectly) showed the road reserve as being part of Lot 1 DP 119074. 1. On physical inspection when observed from Clontarf Street, the street frontage boundary appears to be as identified by Six Maps. The statement under "Objective 2" in the Council's Delegated Authority Report also supports this, together with all the Six Maps plans in evidence. The Applicants commented on this submission to the effect that none of the documents referred to by the Waldings support the assertion that "on physical inspection when observed from Clontarf Street the street frontage boundary appears to be as identified by Six Maps". 1. The SEE, which accompanied the DA, contained a colour photograph of the Six Maps map of Lot 1 DP 119074. 2. The Delegated Authority Report prepared by the Council also contained a colour photograph which depicts Lot 1 DP 119074 as shown on the Six Maps map, and states that an inspection took place on 11 April 2017. Photographs of the garage location were taken and are contained under a statement that the proposed garage is consistent with other properties on the street where the garage is located on the front boundary. 3. Both the DA and accompanying SEE and the Council in considering the DA, relied upon Lot 1 DP 119074 as it was depicted in the Six Maps map as accurately identifying the boundaries of that lot. There is no evidence the mistake was intentional. There is no evidence that the Council's erroneous belief was based on its reliance on the survey and other drawings supplied by the Waldings. The Council's letter to the Applicants dated 7 December 2018 (EB p 233) acknowledges that the Council's own records were incorrect, suggesting that any error in relation to the location of the front boundary of the Walding Property was not caused by material from the Waldings. The Applicants commented on this submission to the effect that the Council relied upon the erroneous survey and other drawings provided to it by the Waldings. 1. The Council was the owner of the Dedicated Land. 2. The Dedicated Land was zoned R2 "Low Density Residential" under the Manly LEP, as was Lot 1 DP 119074, and was not zoned as to indicate it was part of a road or road reserve. Garages are permissible in the R2 zone. Removal or demolition is not required on the basis of impermissibility. The LEP zoning map could not have alerted the Waldings, their agents or the Council to the error in the records. The Applicants commented on this submission to the effect that all roads in the vicinity of the Walding Property are included within zone R2 (rather than some special purpose zone for roads). 1. The Council was appointed as the principal certifying authority (PCA) pursuant to s 109E of the EPA Act on 2 February 2018 and, pursuant to its function as the PCA, issued construction certificate CC2018/0207 (the CC) on 7 August 2018 for the works in respect of the garage on the Dedicated Land and those on the Walding Property, and at no time doubted that Lot 1 DP 119074 extended to the street frontage shown in the Six Maps map. The mistake was not intentional. The evidence does not establish that the Council's erroneous belief of the position of the front boundary arose from reliance on the survey and other drawings supplied by the Waldings, given the Council's admission that its own records were incorrect and what was shown on Six Maps. The Applicants commented on this submission to the effect that it is clear that in issuing the CC, the certifier relied upon the survey plan and other drawings prepared by the Waldings. 1. In April 2018, prior to when the CC was initially about to be issued, the Council first noticed that Sydney Water infrastructure was located on what is now known to be the Dedicated Land and, acting on the assumption that the pipes were on the Walding Property, advised the Waldings to apply to Sydney Water for building plan approval. 2. On 9 April 2018, Sydney Water wrote a letter with Ref No 428568 in response to the building plan assessment application made by the Waldings containing a map showing the location of the garage within the boundaries of the site. The Applicants commented on this submission to the effect that what the Waldings assert is not visible on the evidence. 1. The Sydney Water map shows the lot extending to the street frontage as shown in the Six Maps map. The letter advised that the construction of the garage in the proposed location required further assessment as it may impact its infrastructure assets and referred the Waldings to a Sydney Water servicing coordinator. The Applicants commented on this submission to the effect that what the Waldings assert is not visible on the evidence. 1. The Sydney Water servicing coordinator was engaged to prepare and carry out a service protection report which also contained a plan that showed the lot extending to the street frontage as shown in the Six Maps map. The mistake was not intentional nor does the evidence establish that the Council's understanding of the front boundary was based on its reliance on the survey and other drawings supplied by the Waldings, including Six Maps and the Council's own records. The Applicants commented on this submission to the effect that the service protection report expressly relies on the survey plan prepared by the Waldings for boundary depiction. 1. The accompanying design required the Waldings to have the Sydney Water sewer pipes encased in concrete under the garage extending one metre past external walls and provided for an exclusion zone around the manhole cover in what was assumed to be the Waldings' front yard which has since been completed. 2. The Council has no plans to widen the formed part of the road that is Clontarf Street to extend to the actual front boundary of Lot 1 DP 119074 and, to the extent that there was a proposal to widen the road into the Dedicated Land, the proposal had long since been abandoned. When the s 149 certificate was issued on 18 December 2015 the Council considered the Dedicated Land was part of Lot 1 DP 119074. The certificate did not indicate the lot was subject to road widening. The inference to be drawn is that the land dedication took place more than 60 years ago. Clearly the road widening did not take place and was abandoned long ago and seemingly forgotten as the Council records do not appear to record it. 3. On 18 January 2017 the Applicants made a written objection to the DA but it made no reference to or allegation that the proposed garage was to be constructed on land not owned by the Waldings but on land dedicated to the Council. Ms Lu's oral evidence was that she was aware of the location of the Waldings' front boundary at the time she considered the notification plans and then made her objection. 4. At or around July 2018, the Council as PCA carried out necessary inspections including utilities, driveway, formwork and concrete pouring, and the garage was completed, apart from cosmetic finishing, in November 2018. 5. In December 2018, at or after the completion of the construction of the garage on the Dedicated Land: 1. the Applicants first claimed that the garage had been constructed on land not owned by the Waldings but on land dedicated to and owned by the Council and claimed that the development consent was invalid; and 2. the Waldings only became aware that the garage may not have been constructed on land owned by them in December 2018. The evidence of Ms Lu suggests that she was aware, or certainly should have been aware at the time the DA was notified, of the location of the garage intended on the Walding Property. Her evidence of when she first learned of the true position of the front boundary of the Walding Property in relation to the garage and of her own property is contradictory. The Applicants commented on this submission to the effect that they do not agree with the dates relied on by the Waldings. After making inquiries about property boundaries, they sent an email to the Council on 9 October 2018 raising their submission that development was being carried out beyond the Waldings' front boundary. 1. These proceedings were not commenced until 13 February 2019: 1. the development consent having been granted on 9 May 2017, almost two years before; and 2. the construction of the garage on the Dedicated Land having been commenced on July 2018 and nearly completed in November 2018. The Applicants could have reasonably known earlier as they were aware that the Waldings' boundary was roughly in line with their letterbox, viewed the notification plans and could have determined the location of the garage from these. The Applicants submitted that they could not have known earlier than September 2018 when the concrete slab was poured that the garage was being built on the Council's land.
The Applicants' evidence is that their main concern is the impact of the development on their privacy. The Applicants bear the onus of persuading the Court to exercise its jurisdiction to order demolition. The evidence adduced by the Waldings, including the evidence of Mr Betros, is that an order for demolition should not be made. The impact of the garage on the Applicants' enjoyment of their property can be addressed by orders consistent with the recommendations of Mr Betros. The Waldings have made reasonable open offers to ameliorate the impacts of the garage. No real environmental utility would be served by making an order for demolition of the garage. No adverse consequences flow from the error as to land ownership. The impact of the garage on the Applicants' land was lawfully assessed by the Council and no challenge is made to the grant of consent based on the Council's consideration of the impacts on the Applicants' land.
It is a significant discretionary factor that the proceedings were not commenced until the garage was effectively completed.
The Waldings submitted that alternatively the Court should make orders under s 25B of the LEC Act specifying compliance through the Waldings obtaining development consent for the use of the garage.
The Applicants seek to rely upon alleged inadequacies in the DA and the Council's assessment of the DA (see Applicants' submissions summarised in [240] above). The Applicants sought to raise these matters on the first day of the hearing. These matters had not previously been raised in submissions or pleadings. The Court ruled that the Applicants were not allowed to raise these matters and rejected paragraphs in Mr Kosnetter's report on that basis. The Applicants should not be permitted to raise these matters now, contrary to the Court's ruling.

[52]

Discretion to extend time under UCPR r 59.10 granted

Most relevantly for the application of UCPR r 59.10 is whether the delay in commencing these proceedings by the Applicants outside the three month period should preclude them being commenced, or at this stage proceeding to final determination. The Applicants bear the onus of demonstrating why time to commence these proceedings should be extended. Under subr (3), matters the Court can consider include (a) any particular interest of the plaintiff in challenging the decision; (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted including but not limited to prejudice to parties to the proceedings; (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision; and (d) any relevant public interest. This list is not exhaustive given the chapeau of subr (3) of matters that the Court can consider. As identified in Bankstown City Council v Ramahi at [74] citing Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] and Dyason v Butterworth [2015] NSWCA 52 at [65], additional considerations can include the length of delay, the reasons for the delay and whether an applicant has a fairly arguable case.
The competing submissions on discretion to extend time are finely balanced in this matter. The starting point for the events that have unfolded is that the Waldings applied for development consent over land which they did not own at the front of their property. Their error was compounded by the Council's inadequate records in relation to the road reservation executed in the early 1950s which resulted in council staff not identifying the error. The Waldings, the person who prepared the SEE and the Council relied on Six Maps to locate the front boundary. Apparently Sydney Water also relied on Six Maps. Indeed much of the Waldings' submissions set out in [246(a)], [246(b))], [246(c)], [246(d)], [246(e)], [246(f)], [246(g)], [246(j)], [246(m)] above is focussed on the use of Six Maps, suggesting this was reasonable on their part. The website has a disclaimer on it when a map is printed suggesting it should not be so used. No boundary survey plan of the Waldings' property is in evidence. I therefore infer none was obtained at the time of purchase of their property in 2014, in the absence of which the precise boundaries were not identified to them or by them at that time. The various plans in evidence are discussed above in [14]-[22].
No boundary survey or site plan was prepared for the Waldings' DA despite the requirement in Sch 1 Pt 1 cl 2(1)(a) and (2) of the EPA Regulation with the result that their front boundary was not identified correctly at the time their DA was submitted. All the plans lodged in support of the Waldings' DA show their front boundary in the wrong location. The perils of relying on Six Maps to identify legal property boundaries as the Waldings and the Council's assessing officers did are well and truly highlighted by these events. While the Respondents submitted that Six Maps is published by the NSW Government for use by the public to identify boundaries of land on aerial photographs, that is clearly not correct for all purposes. Use of Six Maps does not necessarily comply with the EPA Act and EPA Regulation concerning the identification of property boundaries.
The Waldings' counsel sought to suggest that the Council relied on its own inquiries rather than the plans attached to the Waldings' DA. It is difficult to draw any conclusion on that issue but I have noted above in [21] that the error in the southern boundary dimension in plans lodged with the DA also appears on the site analysis plan approved by the Council, suggesting reliance on the plans lodged with the DA.
The Waldings' counsel endeavoured in cross-examination to suggest that Ms Lu should have noticed the front boundary error in the notification plan sent out by the Council. The notable matter that the Waldings' submissions do not acknowledge is the reference to the southern boundary measurement of 36.575 metres as identified on Lot 1 DP 119074 on a number of plans, as set out above in [14]-[22]. This boundary measurement is identified in Ms Lu's evidence as an important piece of information. The southern boundary measurement on the notification plan shows the deposited plan boundary length, not the actual boundary length for the land intended to be the subject of the Waldings' DA. The same errors appear in the plans approved by the Council. These are the circumstances against which Ms Lu's actions should be considered.
In terms of the matter identified in subr (3)(c), the Applicants' interests are as neighbours who have a substantial building located next to their front boundary on land which they knew to be owned by the Council and which they did not understand was the subject of the Waldings' DA. I accept their evidence that the location of the garage with a rooftop trafficable deck very close to their living area at the front of their house is having substantial privacy impacts upon them. That is clear from the photographs attached to Mr Lu's affidavit.
In relation to subr 3(b), there is substantial prejudice to the Waldings caused by the passage of time if the relief sought of demolition of the garage is granted, given they have now nearly completed expensive construction of a substantial garage and undertook additional expensive works to comply with Sydney Water requirements. The Waldings built their garage in reliance on their development consent and it was largely complete in November 2018 before these proceedings were commenced in February 2019.
In relation to subr 3(c), the time when the Applicants should have been aware that the Council granted development consent in May 2017 exercising reasonable diligence is the relevant event to which the subsection refers, as the Waldings rely on. There is no evidence about when Ms Lu became aware that development consent had been granted and that notification of the DA had taken place.
The factors in subr (3) are not exhaustive. Other relevant matters that may be considered includes the strength of the Applicants' case. I have found that the absence of owner's consent at the time development consent was granted is a jurisdictional error.
Turning to the length and reason for the delay, on the Applicants' case the relevant time to consider is when they became aware that the Waldings' development consent purported to allow them to build on the Council's land. This occurred only after construction commenced, on Ms Lu's undisputed evidence, in late September 2018. Ms Lu then arranged for a search of property boundaries. Ms Lu alerted the Council of her concerns on 9 October 2018 and had several email exchanges with council officers in relation to her request that they take action. The discovery that the garage was built on council land did not come to light until the Applicants took action. The Applicants' solicitor gave notice of intention to the Waldings to commence proceedings in the Court unless an undertaking to demolish the garage was received on 10 December 2018. The Rygate Survey was prepared on or about 12 December 2018. Discussions were held between the parties. Ultimately these proceedings were commenced on 13 February 2019.
The Waldings submitted that Ms Lu, if exercising reasonable diligence when she received the notification plan from the Council in December 2016, should have noticed the incorrect front boundary on the notification plan for the DA. This plan showed the side boundary measurement which she understood was the correct length. Ms Lu was cross-examined about this. Her evidence was that she assumed that the information she received from the Council was correct. She did not notice the distance between the front of her house and the garage as shown on the notification plan. Her evidence is that she is not experienced in reading plans. As a result of her conversation with the Waldings before the DA was submitted, she understood that they understood where their front boundary was and the common boundary length identified in the notification plan was correct. As Ms Lu was not then aware of the proposed location of the Waldings' garage beyond their legal boundary, she did not comment on that issue to the Council in her submission during the notification of the DA period.
Ms Lu's affidavit evidence summarised above in [172]-[192] is to the effect that she understood there was some restriction on the use of the land at the front of her property. While there were some changes in her precise evidence about when she understood her boundary did not extend beyond her letterbox, that does not undermine her overall evidence. I have already identified the errors in the plans submitted with the Waldings' DA. I accept Ms Lu's evidence that she was not aware at the time of the notification plan of the DA of the error in the location of the front boundary of the Walding property and there was no failure to exercise reasonable diligence on her part.
Mr and Mrs Waldings' affidavits refer to them not being made aware of a road reservation at the front of their property at the time of purchase. Whatever gave rise to that situation, it was certainly not caused by the Applicants. Mrs Walding refers in her affidavit to advice from Cunningham's Real Estate agency at the time of their purchase. A plan of the Walding property prepared by that agency essentially for marketing purposes is attached to her affidavit. That plan states that it is indicative only and should not be taken as an exact representation of the property, its accuracy has not been verified and prospective purchasers must rely on their own enquiries and verify the accuracy of the information before proceeding. Mrs Walding relied on Six Maps to identify her front boundary when the DA was being prepared. That also has a caveat upon it that it should not be relied upon for boundary purposes. If a boundary survey had been prepared which measured the side boundary dimension shown on the deposited plan, plans and documents lodged with the DA and in the plan approved by the Council when development consent was granted would presumably have had the front boundary correctly identified. The form of development sought and approved would of necessity have been different if confined to the Waldings' property.
Balancing these many factors, I consider that leave to commence and continue these judicial review proceedings should be granted.

[53]

Exercise of discretion - is demolition of garage or other relief warranted?

The circumstances of this case are unfortunate to say the least. The Waldings sought and obtained development consent from the Council, the latter being aware that it was assessing an application for land which turned out to include land in front of the legal boundary of the Walding property. As I have found that a jurisdictional error has occurred given the absence of landowner's consent when development consent was granted, the issue arises whether the relief the Court grants should include a declaration of invalidity of the development consent and separately whether demolition of the garage or some other order ought to be made. The Applicants argued private advantage to the Waldings, environmental impacts on the Applicants as a result of the garage and criticised the Council's assessment. While the last argument is recorded in the Applicants' submissions above in [240], parts of it are contrary to the ruling I made during the hearing that a challenge to the granting of development consent by the Council on the grounds of inadequate assessment was not permitted in a discretionary argument. Nevertheless the Applicants' evidence does establish that they are suffering substantial privacy impacts as a result of the trafficable roof area on top of the Waldings' garage and I will take that evidence into account.
The broad discretion of the Court to grant the relief it sees fit is identified in the Applicants' submissions in [237] above, citing the well-known authorities of Hannan at 311 and Sedevcic at 339. The Court can order demolition and has done so on numerous occasions but each case must be determined on its own facts. A number of matters relevant to the exercise of the Court's discretion in relation to the relief sought of demolition of the garage have already been canvassed above in terms of delay in commencing these proceedings as was necessary to consider in relation to the application of UCPR r 59.10. I will not repeat them again but take them into account to the extent they are relevant to the exercise of the Court's wider discretion.
In relation to the Applicants' submission that the Waldings obtained a private advantage, their doing so was unintentional. This case is quite unlike two cases relied on by the Applicants where the Court ordered demolition. In Taylor building work without development consent partly on Crown reserve land was carried out and in Stojanovski no development consent was obtained for environmentally harmful works. The gaining of private advantage by the Waldings was certainly not deliberate and was not identified by the Council, the relevant land owner, who as the consent authority considered the DA. This submission has limited relevance in the peculiar circumstances here.
I should also note that the Council has filed a submitting appearance so that there is no direct evidence of its intentions in relation to the Dedicated Land in light of the circumstances before me. Mr and Mrs Walding attested in their affidavits to conversations with council officers about the Council being favourably disposed to the Waldings purchasing the Dedicated Land where the garage is located. On 21 May 2019, the Waldings made enquiries about their intention to purchase the Dedicated Land by the proper application process from the Council with the "Land Dealings Officer, Property Commercial & Tourist Assets". The initial review by the "Transport Civil & Infrastructure Assets Team" is underway. The Applicants commented on this submission to the effect that in a letter to them the Council stated that it is not considering disposal (by means of sale, lease or licence) of the Council land. Ms Lu was told by a council officer that no sale would occur while court proceedings were on foot and such a sale would require a formal public process including a council resolution. The evidence discloses that the Council's own records do not indicate that it owns the Dedicated Land and apparently also referred to Six Maps to identify land boundaries. The Council assessed and approved the Waldings' DA in the usual course of business, was appointed the certifying authority for the development consent and approved the work undertaken. No evidence of the Council wishing to retain the Dedicated Land is before me. No basis to order demolition arises from the Council's actions.
The key issue in relation to whether demolition ought to be ordered as relief is that the Applicants delayed in commencing these proceedings in the sense that the building the subject of the challenge was largely complete by the time proceedings commenced. The substantial financial prejudice to the Waldings is significant given these circumstances.
While the Applicants attempted to have the Council address the problem, the Council was not able to unilaterally change or withdraw the DA. The Applicants should have commenced proceedings earlier, given that they knew the Waldings were continuing with building work in reliance on what they were entitled to consider was a valid DA. This is an important consideration in the exercise of discretion as the financial hardship for the Waldings is very substantial if demolition of their nearly complete garage is ordered in circumstances where they held a valid development consent at the time of building and the Council had acted as the private certifier for the project.
Considering the evidence of the town planners set out above in [220]-[230], as I ruled during the hearing, Mr Kosnetter's opinion of whether the Council should have approved the DA on merit grounds is not able to be read in relation to discretion, given that the DA was not otherwise subject to any substantive challenge in these judicial review proceedings. The planners agreed that measures to address the privacy impacts on the Applicants' property could be implemented. They otherwise differed in their opinion of whether the garage did fit within the streetscape along Clontarf Road. Given the limited scope to consider planning issues in these judicial review proceedings, the Applicant has not demonstrated through its planning evidence that demolition is warranted.
Balancing up all these factors, I do not consider that demolition is warranted. Measures to ameliorate the privacy impacts on the Applicants from the use of the rooftop deck on top of the garage should be implemented with appropriate orders made to achieve that outcome. One proposal made by the Respondents was the application of s 25B of the LEC Act. I do not consider that such an approach is warranted given that appropriate orders can otherwise be made.
I will also discuss with the parties whether I should make a declaration of invalidity of the Waldings' development consent. As identified in Liverpool City Council (No 2) at 212, a finding of a breach of the EPA Act does not automatically give rise to a declaration being made. Nor do I consider a declaration is necessary to found the making of remedial orders. I should note, given the Waldings' counsel's reliance on the outcome in Liverpool City Council v Roads and Traffic Authority where proceedings in which a breach of the EPA Act was established were dismissed, that I do not consider the circumstances of this case to be at all similar. The Applicants' delay is not disentitling to any relief being granted to them.
The Court was not taken to the details of the ameliorative measures proposed by Mr Betros to relieve privacy impacts. It will be necessary to consider how much, if any, of the rooftop area of the garage should be allowed to be trafficable. The parties will need to discuss ameliorative measures to propose to the Court to enable final orders to be made.
Costs generally follow the event in judicial review proceedings. The Applicants have been successful in many of their legal arguments with more limited success in relation to the exercise of discretion. Costs will need to be considered by the parties and submissions made in the absence of agreement as to an appropriate costs order once final relief has been determined.
A timetable for consideration of appropriate final orders, including to facilitate ameliorative measures to be undertaken by the Waldings and costs will be discussed with the parties.

Lu v Walding

At a glance

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Judgment (56 paragraphs)

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Legislation Cited (17)

Cases Cited (122)

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