Did the primary judge err in finding that s 101 was not a bar to the respondent's challenge to the validity of Condition 36?
109 The Council's submissions on this issue may be summarised as follows:
(a) Whether or not the validity of Condition 36 comes within the protection of s 101 involved a question of construction of that provision in accordance with the principles articulated by the High Court in Plaintiff S157 and this Court in Mitchforce, Pallas Newco and Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207;
(b) Because s 101 permits any form of challenge within a period of three months from the giving of public notice of the consent, there is not the same compulsion strictly to construe the provision such as was the case in Plaintiff S157 where the relevant privative provision constituted an absolute bar: Pallas Newco at 722 [75];
(c) It was nevertheless accepted that, notwithstanding that s 101 did not constitute an absolute bar to legal challenge on the ground of jurisdictional error, it did not protect a decision that did not conform with the threefold Hickman principle or one which was in breach of, or did not comply with, a restriction or requirement which, on the proper construction of the EP&A Act as a whole, including s 101, should be construed as being of such significance in the legislative scheme that it constituted a limitation or requirement that was "essential", "indispensable"," imperative" or "inviolable": Pallas Newco at 723 [81]; Lesnewski at 224 [76];
(d) The decision to impose Condition 36 would only be in disconformity with the threefold Hickman principle so that it was not protected by s 101 if it was not a bona fide attempt by the Council to exercise the relevant power; did not relate to the subject matter of the EP&A Act and/or was not reasonably capable of reference to the power given to the Council in the EP&A Act to impose such a condition;
(e) Furthermore, any defect in the decision to impose Condition 36 must be "manifest" in the sense that it must appear on the face of the Consent including the condition under challenge;
(f) In the present case, the decision to impose Condition 36 conformed with the threefold Hickman principle in that:
(i) its imposition had not been shown to be otherwise than a bona fide attempt by the Council to exercise the power to impose conditions on a consent granted under the EP&A Act;
(ii) it related to the subject matter of the EP&A Act being a condition imposed upon a consent to a development application to subdivide land under the Act; and
(iii) it was reasonably capable of reference to the power given to the Council under the EP&A Act to impose conditions, namely, the power in s 80A(1)(a);
(g) As conformity or otherwise with the threefold Hickman principle could only be determined on the face of the decision (otherwise any excess of jurisdiction in the relevant sense would not be "manifest") it was impermissible for the primary judge to have determined that issue, as she did, by reference to the Contributions Plan in order to confirm that it made no provision for the dedication of Lot 1825 free of cost;
(h) This being so, there was nothing on the face of the Consent and, further, nothing about Condition 36 that revealed that it was otherwise than a bona fide attempt to exercise the power to impose conditions; that it was other than related to the subject matter of the EP&A Act or that it was other than reasonably capable of reference to the power given to the Council to impose conditions under that Act;
(i) Furthermore, it could not be said that, as a matter of construction of the EP&A Act as a whole including s 101, the requirement that a condition imposed pursuant to s 94(1) could be imposed only if it was of a kind allowed by, and determined in accordance with, the Contributions Plan approved under s 94B, was either "essential", "indispensable", "imperative" or "inviolable" given:
(i) the fact that the validity of Condition 36 could be challenged within three months of the giving of the public notice referred to in s 101;
(ii) that the respondent was entitled to appeal to the Court within 12 months of the grant of the Consent pursuant to s 97 of the EP&A Act;
(iii) the power of the Court under s 94(12) to disallow a condition allowed by a contributions plan because it was unreasonable;
(iv) the right of the applicant for the Consent or any other person entitled to act on it to seek its modification pursuant to s 96(2) and, if that application was refused or deemed to be refused, to appeal therefrom to the Land and Environment Court;
(v) that the applicant or any other person entitled to act on the Consent may not implement it but may make a new development application seeking a fresh consent where otherwise the applicant was out of time to appeal against the original consent pursuant to s 97;
(j) Accordingly, any breach by the Council of s 94(11) could only affect the respondent as the applicant for the Consent and/or the developer of the Estate;
(k) It would be unlikely that any third party would wish to challenge a condition such as Condition 36, given its imposition in the public interest;
(l) Although it had been held that a denial of procedural fairness can be described as an "inviolable limitation or restraint" which was not protected by s 101 (Lesnewski at 224 [77]) and accepting that there are other matters of fundamental significance which could also be regarded as "indispensable", "imperative" or "inviolable", the same epithets could not be applied to a breach of s 94(11);
(m) A far more significant breach, for instance, would be of s 78A(8)(a) which provided that a development application in respect of designated development must be accompanied by an environmental impact statement or s 78A(8)(b) which provided that where the development the subject of the application was likely to affect significantly threatened species, populations or ecological communities or habitats, it must be accompanied by a species impact statement prepared in accordance with the relevant provisions of the Threatened Species Conservation Act 1995. As a matter of comparison, a breach of s 94(11) pales into insignificance, so it was submitted, against a breach of a provision such as s 78A(8);
(n) For one reason or another, the applicant for a consent may be content to accept a condition imposed pursuant to s 94(1) which did not comply with s 94(11): it would be inappropriate in such circumstances for a third party to be able to challenge the validity of such a condition after the expiration of the three months referred to in s 101. In such circumstances, s 101 should protect the consent from challenge either at the suit of the applicant for the consent or some third party.
110 The respondent's submissions generally accepted the legal propositions advanced by the Council but contended that:
(a) The exclusive source of power for the imposition of Condition 36 was that contained in s 94;
(b) The Council was therefore in error in contending that s 80A(1)(a) was a relevant source of power;
(c) A condition imposed pursuant to s 94(1) was predicated upon compliance with s 94(11);
(d) In order to determine whether there was a manifest non-compliance with that provision it was permissible to determine whether, firstly, a contributions plan existed and, secondly, whether it allowed for the kind of condition in question;
(e) In the present case the facts were such that the imposition of Condition 36 was not a bona fide attempt to exercise the power under s 94(1) as it had to be inferred that the Council knew that it was a condition which was neither allowed by, nor determined in accordance with its own approved contributions plan;
(f) In the absence of compliance with s 94(11) the condition was not reasonably capable of reference to the power given to the Council under s 94 to impose the condition which required the dedication of land free of cost;
(g) To the extent to which reliance could not be placed upon the terms of the Contributions Plan, nevertheless the format of the Consent and the location of Condition 36 at the end of 16 conditions which were imposed under the heading "TRAFFIC/ROADS/FOOTPATH", made it obvious on the face of the document that it was not reasonably capable of reference to s 94 which was specifically referred to as the source of power for Condition 16 requiring the payment of monetary contributions in accordance with the Contributions Plan.
(h) Both the terms in which s 94(11) was framed and the purpose for which it was inserted into the EP&A Act made it clear that, as a matter of construction of the Act as a whole, it was intended that a condition imposed in breach of that provision should be invalid. Thus it provided a restraint upon the power of the Council to require the dedication of land free of cost which was essential, imperative or inviolable to that part of the legislative scheme relating to the imposition of conditions requiring a monetary contribution or the dedication of land free of cost, the latter being a form of compulsory acquisition without compensation.
111 As I have observed, generally speaking the relevant principles were not in issue. It is therefore sufficient for present purposes to record the following passage (omitting citations) from the judgment of Spigelman CJ in Mitchforce (at 229 [68]) and repeated by him in Pallas Newco (at 723 [81]) as summarising those principles:
"… Plaintiff S157 affirms a number of propositions established by prior High Court authority as applicable where an issue arises concerning the interaction between a jurisdictional limit and a privative provision in an Act:
· 'The co-existence of two such provisions gives rise to an issue of inconsistency requiring reconciliation between the provisions.
· The issue is one of statutory construction and all the relevant rules of construction apply, notably the rule that particular provisions must be construed in the context of the whole of the Act and that one provision, including the privative provision, cannot be construed as controlling the meaning of the remainder of the Act.
· A privative provision on its proper construction will not protect a 'manifest' defect, in the sense that a decision is not a bona fide attempt to exercise the power; that it does not relate to the subject matter of the legislation and that it is not reasonably capable of reference to the power given to the decision-maker.
· A provision containing a restriction or requirement may, on the proper construction of the Act as a whole including the privative provision, be construed as being of such significance in the legislative scheme that it constitutes a limitation or requirement that is, as variously expressed in the authorities, 'essential', 'indispensable', 'imperative' or 'inviolable'. "
112 In Lesnewski (at 224 [76]), with the agreement of Hodgson and Ipp JJA, I sought to summarise the effect of the Chief Justice's discussion in Pallas Newco of s 101 in the following terms:
"The effect of the Chief Justice's discussion in Woolworths with respect to s 101 is that the section does extend to protect decisions from jurisdictional error at least where that expression is used in the wider sense. However, the provision does not, even after the expiration of the three month period, extend to protect decisions that do not conform to the threefold Hickman principle, namely, where it is manifest that the decision is not a bona fide attempt to exercise the power; where it does not relate to the subject matter of the legislation; or where it is not reasonably capable of reference to the power given to the decision-maker. Furthermore, it does not protect against breach of, or non-compliance with, a restriction or requirement which is construed as being of such significance in the legislative scheme that it constitutes a limitation or requirement that is variously expressed in the authorities as 'essential', 'indispensable', 'imperative' or 'inviolable'. "
113 The jurisdictional error which arose in Pallas Newco involved a question of classification of the particular use the subject of the development application in that case, where it was described in a manner which made it permissible under the relevant local environmental plan. However, it was contended that by reference to the plans that accompanied the development application and other evidence, the proposed use was in fact one that was prohibited by that instrument. The Council in that case had granted consent to the use as nominated but the validity of the consent was challenged by Woolworths (a third party) on the basis that what was proposed was in fact a prohibited use. No question of such a challenge being barred by s 101 arose as the proceedings were brought within the relevant three months. It was therefore unnecessary for the Chief Justice and the other members of the Court who agreed with him to determine whether the challenge would have succeeded had it been commenced outside that period.
114 On the other hand, Lesnewski did require the application of s 101 to the challenge as the proceedings were instituted outside the relevant three month period. However, the relevant ground of invalidity in that case was an alleged denial of procedural fairness. Accordingly, none of the facts in either case are of assistance in the present matter.
115 It is convenient to deal firstly with the Council's submission that it was impermissible for the primary judge, when determining whether there was a "manifest jurisdictional error", to have regard to the Contributions Plan in order to determine whether Condition 36 was of a kind allowed by, or determined in accordance with, that plan.
116 The references to Plaintiff S157 relied upon by Spigelman CJ to support the proposition referred to in the third dot point of the passage extracted in [111] above merit consideration. The first was from the judgment of Gleeson CJ (at 485 [13]) where his Honour said that an adjective such as "manifest" when used in the context of review of decision-making, whether judicial or administrative, conveyed the idea that there were degrees of strictness of scrutiny to which decisions may be subjected. The second, also in the judgment of Gleeson CJ (at 487 [18]), is preceded by a passage where his Honour said:
"But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg 17 [a privative clause], it becomes a question of interpretation of the whole legislative instrument whether the transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity ." (emphasis added by Gleeson CJ)