Maitland City Council v Anambah Homes Pty Limited [2005] NSWCA 455 | Case summary

Maitland City Council v Anambah Homes Pty Limited [2005] NSWCA 455 | Case summary | Zoe

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Anambah Homes Pty Ltd v Maitland City Council (2004) 135 LGERA 421 Anambah Homes Pty Ltd v Maitland City Council (No 2) [2004] NSWLEC 719 Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 Craig v South Australia (1995) 184 CLR 163 Fairfield City Council v N & S Oliveri Pty Ltd [2003] NSWCA 41 Fitch v Shoalhaven City Council (1989) 67 LGRA 165 Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 Jones v Dunkel (1959) 101 CLR 298 Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 Kingsway Investments (Kent) Ltd v Kent County Council [1969] 2 QB 332 Kriticos v Parramatta City Council (1971) 21 LGERA 404 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 Mahoney v Industrial Registrar of NSW [1984] 3 NSWLR 315 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales (2003) 57 NSWLR 212 O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 Payne v Parker [1976] 1 NSWLR 191 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 CASES CITED: Powercoal Pty Ltd v Industrial Relations Commission of NSW [2005] NSWCA 345 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 R v Commonwealth Conciliation & Arbitration Commission; Ex parte Amalgamated Engineering Union, Australian Section (1967) 118 CLR 219 R v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313 R v Hickman; Ex parte Fox (1945) 70 CLR 598 R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 R v Murray; Ex parte Proctor (1949) 77 CLR 387 R v Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402 Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Applicants S134/2002 (2003) 211 CLR 441 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 SBBG v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 281 Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 259 SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43 Sericott v Snowy River Shire Council (1999) 108 LGERA 66 Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 Wechsler v Auburn Council (1997) 130 LGERA 134 Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707

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Friday 16 December 2005 MAITLAND CITY COUNCIL v ANAMBAH HOMES PTY LTD Judgment 1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Tobias JA in draft. His Honour sets out the issues, the facts, the statutory regime and the pertinent decision-making process. I gratefully adopt his Honour's judgment in these respects. 2 Section 101 of the Environmental Planning and Assessment Act 1979 (the "EP&A Act") would not protect the validity of Condition 36 in issue in these proceedings if that condition was imposed in breach of the Hickman principle. Pain J applied what she described as "the test of manifest jurisdictional error" in reaching the conclusion that there was such a breach. 3 Her Honour identified this test as having been established by this Court in Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66. Her Honour said that the test of "manifest jurisdictional error" was affirmed after the authoritative statement of the Hickman principles by the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. Her Honour referred to my use of the word "manifest" in a summary of the effect of Plaintiff S157 in Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 at [68], which I repeated in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [81]. 4 With reference to the paragraphs in Plaintiff S157, I set out the affirmation in that case of the original three Hickman provisos in the following way: "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 (at 458 [13]; 459 [18]; 466 [56]; 466 [57])." 5 My use of the word "manifest" was a quotation. It was not intended to modify in any way the three Hickman provisos. In particular it was not intended to propound an alternative test to the effect that it is sufficient to ask whether or not a jurisdictional error is "manifest" and if the answer to that question is "yes" then, as a matter of construction, the privative clause will not apply. Useful as a single word may be to state in short form the effect of the three Hickman provisos, to pose the question in terms of whether or not a jurisdictional error is "manifest" is liable to lead to error. 6 In its natural and ordinary meaning the word "manifest" has a connotation of 'obviousness'. The Hickman principles are not satisfied simply because an absence of power is in some sense 'obvious'. With the benefit of hindsight almost any jurisdictional error could be said to be manifest in the sense of obvious. The operation of the Hickman principle is much more restrictive than a "test of manifest jurisdictional error" suggests. 7 Although Pain J relied on the judgment in Sericott as establishing the test, the word "manifest" is not used in that judgment. The relevant part of the judgment indicated that what was in issue in that case was one of the three provisos. Beazley JA who delivered the judgment of the Court said: "[41] There was no suggestion that the consent was given in bad faith or that it did not relate to the subject matter of the legislation. The only submission put is that it was in fact a nullity. It was not suggested that on its face the consent exceeded the Council's authority as conferred by the Act. In those circumstances, even if the Council had no power to grant the consent, the validity of the consent is protected by s104A." 8 In R v Hickman; Ex Parte Fox (1945) 70 CLR 598, when Dixon J first stated the principle at 615.3, his Honour did not relate any one of the three limbs to an error appearing "on the face" of a decision. In subsequent passages his Honour employed the language of "upon its face", not with reference to the bona fide limb but with reference to the other two limbs, albeit expressed in composite terms as "upon its face appears to be within power" (616.5) and "do not upon their face exceed the Board's authority" (617.4). See also R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248, 249, 252. 9 Different views have been expressed as to whether or not an absence of bona fides must appear upon the face of a decision. (See O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 per Deane, Gaudron and McHugh JJ at 287 and 293; and cf Mason CJ at 249-50, Brennan J at 275 and Dawson J at 305.) 10 As in Sericott, the "bona fide" limb of the Hickman principle does not apply here. Some reliance was placed on this limb, but there was no evidentiary basis for the submission. 11 The formulation applied in Sericott - whether an error of the requisite character appears "on the face" of the decision - as a restatement of the third limb of the Hickman principle, finds its origin in the judgment of Kitto J in R v Commonwealth Conciliation & Arbitration Commission; Ex parte Amalgamated Engineering Union, Australian Section (1967) 118 CLR 219 at 253-254, where his Honour said: "… A problem of this general kind is solved by construing the privative provision as having a validating operation where, but only where, three conditions are fulfilled, namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power)."

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This reasoning relates to the third limb in the three-fold Hickman principle, namely, whether or not a decision is "reasonably capable of reference to the power", in the sense that it "does not on its face go beyond the power". 14 Tobias JA has set out Condition 36 in its context. It appears that the Council purported to exercise the general power to impose conditions found in s80A(1)(a) of the Act. However, that power does not authorise a condition requiring the dedication of land, by reason of the scheme created by s94 of the EP&A Act, to which reference is made in s80A(1)(h). 15 The conclusion that s94 constitutes an exclusive power for the imposition of a condition requiring the dedication of land, as I pointed out in Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 at [12]-[17], is based on the application of a principle of statutory interpretation, expressed by Dixon J in one formulation in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7, subsequently frequently applied, in the following way: "When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which may otherwise have been relied upon for the same power." 16 The Appellant Council acknowledges that it did commit an error of law by purporting to act without recognising the limitation upon its power implicit in s80A(1)(h) and s94. The issue is whether or not its error in this regard is of such a character as to lead to the conclusion that the purported exercise of power goes beyond power "on its face", so that it could not be said that the exercise was reasonably capable of reference to the power. 17 Since preparing the first draft of this judgment, I have had the advantage of reading the judgment of Ipp JA. His Honour concludes that nothing appears on the face of the consent that indicates that Condition 36 was not imposed pursuant to s94. In order to establish invalidity it is necessary to have regard to the contributions plan. It cannot, accordingly, be said that Condition 36 was beyond power on the face of the Consent itself. I agree with Ipp JA's analysis. 18 The Respondent's alternative submission is that, with respect to conditions requiring dedication of land, the exclusiveness of the power in s94 is such as to constitute a requirement of the character that has been variously expressed in the authorities as "essential", "imperative' or "inviolable". The process of statutory interpretation must reconcile the Parliamentary intention that s94 is the only power that can be used to require dedication of land, with the Parliamentary intention expressed in s101 that Council decisions should not be challenged after the expiration of three months. 19 The following matters have been found to be inviolable restraints: · In R v Coldham; Ex parte Australian Workers' Union supra at 419 it was contended that the privative clause contained in s60(1) of the Conciliation and Arbitration Act 1904 protected a decision under s142A(1) of the Act, which authorised the making of an order that an organisation of employees should have the exclusive right to represent some or all of the industrial interests of a class or group of employees who were "eligible for membership of the organisation". Mason ACJ and Brennan J held that s60 "[could not] affect the operation of a provision which imposed inviolable limitations or restraints upon… jurisdiction or powers" and the requirement that persons be "eligible for membership of the organisation was "quite explicit" and thus an inviolable jurisdictional restraint (at 418-419). See also R v Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402 at 408 and Mahoney v Industrial Registrar of NSW [1984] 3 NSWLR 315 at 328-329. · In Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Applicants S134/2002 (2003) 211 CLR 441, decided on the same day as Plaintiff S157, Gaudron and Kirby JJ held that legal criteria governing visa decisions were inviolable, partly on the basis that those criteria were laid out in such fine detail as to imply that Parliament required their observance, and partly because the Act required visas to be granted or refused depending on whether the relevant criteria were met. Their Honours were dissenting, but not on this point, which the majority did not need to consider. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Gummow and Hayne JJ described Gaudron and Kirby JJ's reasoning on the inviolability point as "compelling" (at [50]). See also Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 259; and SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43. · In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 the High Court held that s424A of the Migration Act 1958 (Cth), which required the Refugee Review Tribunal, at the hearing stage, to give the appellants written notice of the information it had obtained was an imperative obligation and a breach of s424A constituted jurisdictional error. · Procedural fairness (Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [79]). · The criminal standard of proof (Powercoal Pty Ltd v Industrial Relations Commission of NSW [2005] NSWCA 345 at [57]). · Apprehended bias (SBBG v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 281 at [20]). 20 As Gleeson CJ said in Plaintiff S157: "[21] … To describe a duty as imperative, or a restraint as inviolable, is to express the result of a process of construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made. Because what is involved is a process of statutory construction, and attempted reconciliation, the outcome will necessarily be influenced by the particular statutory context." 21 Tobias JA has set out the relevant statutory context, including the text of the EP&A Act and its legislative history. For the reasons his Honour gives, compliance with s94 was essential to the validity of a condition requiring dedication of land. Accordingly, I agree that s101 does not protect Condition 36. 22 I also agree with his Honour's analysis on the issue of severability. I agree with his Honour's orders. 23 IPP JA: I have had the benefit of reading the judgments of Spigelman CJ and Tobias JA in draft. 24 On 27 June 2000 the Council granted consent to development applications with respect to precincts 12, 13, 15, 17 and 18. Precinct 18 related to the subdivision of residue lot 1825. 25 The consents relating to precincts 12, 13, 15 and 17 imposed only a condition requiring a monetary contribution. The consent relating to precinct 18 (the "Consent"), however, was subject to a condition, known as Condition 36, which was in the following terms: "Lot 1825 shall be dedicated to the public as reserve with the endorsement of the Linen Plan for precinct 18".

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Section 80A(1)(a) was the basis on which the Council submitted that it purported to act within statutory power when imposing Condition 36. 29 It must be emphasised, however, that the Council did not purport in the Consent itself to act pursuant to s 80A(1)(a). The argument that the Council acted under the authority of s 80A(1)(a) was advanced on its behalf by senior counsel from the Bar table. 30 Section 80A(1)(a) provides: "80A(1) A condition of development consent may be imposed if: (a) it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent, or " 31 As Spigelman CJ and Tobias JA observe, the exclusive source of power authorising the imposition of a condition such as Condition 36 (which requires the dedication of land free of cost) is s 94. Section 80A(1)(a) does not empower the imposing of such a condition. 32 In these circumstances, the respondent contended that s 101 did not protect Condition 36. 33 The issue so crystallised requires for its resolution the application of the "Hickman principle" (the principle laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 by Dixon J at 614 to 615). His Honour said in relation to privative clauses of the nature under consideration in that case: "They are not interpreted as meaning to set at large the courts or other bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body." 34 The parties were in dispute as to whether the third limb of the Hickman principle was satisfied. If it were not satisfied, s 101 would not have the effect of validating Condition 36. 35 In Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 Gaudron, McHugh, Gummow, Kirby and Hayne JJ said at [57], 500: "[T]he expression 'reasonably capable of reference to the power given to the body' ( Hickman at 615), has been treated as signifying that it must 'not on its face go beyond … power' ( R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 at 418, per Mason ACJ and Brennan J, quoting Kitto J in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 253. See also O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 287, per Deane, Gaudron and McHugh JJ). Thus, even on this general statement, a privative clause cannot protect against a failure to make a decision required by the legislation in which that clause is found or against a decision which, on its face , exceeds jurisdiction." (Emphasis added). 36 What does "on its face" mean in this context? In particular, to satisfy the third Hickman limb, must the decision, on its face, purport to be made according to a power that prima facie is appropriate? Or does it mean simply that there must be nothing on the face of the decision that indicates that it is invalid? 37 In O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 Deane, Gaudron and McHugh JJ said (at 287): "Putting to one side breach of the rules of procedural fairness, the requirement that the award be 'reasonably capable of being referred to the power' will be satisfied if, on the face of the record, it appears that the award was made by the Commission in purported exercise of the power of conciliation or arbitration conferred by the Act: see Amalgamated Engineering Union (1967) 118 CLR 219 at 252-253 where it was said that the requirement is satisfied if 'the purported exercise [of power] … is reasonably capable of being referred to the power (ie does not on its face go beyond the power)'. See also Australian Workers Union (1983) 153 CLR 415 at 418." 38 This passage is ambiguous. On the one hand, the passage contains the statement that the third limb of the Hickman principle would be satisfied if, on the face of the "record", it appears that the award is made in purported exercise of the statutory power. Arguably, this means that the record or instrument containing the decision must, on its face, show that the decision purported to be made in accordance with an appropriate head of power. On the other hand, the reference to Amalgamated Engineering Union (1967) 118 CLR 219 at 252-253 indicates that it would be sufficient to satisfy the third limb if nothing on the face of the decision indicated that it was made beyond power. 39 In the passage in Amalgamated Engineering Union to which reference was made in O'Toole at 287, Kitto J (at 253), after referring to the three conditions of the Hickman principle, said that they were satisfied on the following grounds: "[T]he Reference Bench obviously made its award in good faith and upon a matter within the scope of the legislation, and the fact, as I believe it to be, that the result was to alter 'the basic wage' did not appear on the face of the order that was made. On the contrary, that fact is discoverable only by means of an analysis made possible by resort to two other sources of information …"

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Therefore, because resort had to be made to sources outside the order to establish that it was beyond power, the third limb of the Hickman principle applied. It is not clear whether the order on its face purported to be made within power. 40 In Hickman itself Dixon J at 616 spoke of the instrument needing to bear on its face "every appearance of an attempt to pursue the power". This observation, however, must be contrasted with R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208 where Dixon J at 249 referred to the third Hickman limb as being a requirement that "the order or award does not upon its face exceed the expressed authority of the Arbitration Court". 41 Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v The Commonwealth at [57], 500 (in the passage quoted above) said that a privative clause will not protect a decision "which, on its face, exceeds jurisdiction." This statement is in equivalent terms to the remarks of Dixon J in the Metal Trades Employers Association case at 249 and indicates that the third limb of the Hickman principle will be satisfied (and the privative clause will give protection) if the excess of jurisdiction does not appear on the face of the decision. 42 The use of the expression "manifest error" (which Spigelman CJ discusses) - employed in the past by several judges of high authority in the context of the application of the Hickman principle - was derived from the requirement that the excess of jurisdiction must appear on the face of the relevant instrument: see Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 referred to by Callinan J in Plaintiff S157/2002 v The Commonwealth at 531. This requirement, it seems to me, remains a fundamental element of a finding that a decision is incapable of reference to the relevant power. 43 In my opinion, the third limb of the Hickman principle will be satisfied, and a privative clause will be effective, if the excess of jurisdiction does not appear on the face of the relevant instrument or decision. 44 Thus, in the present case, the third limb will be satisfied (and Condition 36 will be validated) if, to establish that the Consent was beyond power, resort must be had to material outside the Consent itself. 45 Tobias JA holds that for the Hickman principle to be satisfied it is necessary that it must appear on the face of the Consent as a whole that Condition 36 had the appearance of an attempt by the Council to exercise its powers under s 94. For the reasons I have expressed, I respectfully disagree. 46 In my opinion, there is nothing in the Consent as a whole (the provisions of which are discussed by Tobias JA) that indicates that Condition 36 was not such an attempt. That, in my view, is the relevant test. In my view, the Consent does satisfy the third limb of the Hickman principle. 47 An argument was advanced on behalf of the Council to the effect that the third limb is satisfied if the decision-maker subjectively purports to make the decision according to a head of power to which the decision was "reasonably capable of reference", and it is immaterial if that head of power, objectively speaking, in law does not confer the power to make that decision. I do not agree with that proposition. The three conditions of the Hickman principle involve objective tests: O'Toole v Charles David Pty Ltd at 287 per Deane, Gaudron and McHugh JJ. 48 If it appears from the face of the decision that, objectively speaking, the decision is beyond power, the subjective belief of the decision maker will not avail to validate the decision. In my view, the fundamental criterion is whether, on the face of the decision, the decision is objectively beyond power. 49 Save as set out above, I agree with the reasons of Spigelman CJ and Tobias JA and the orders proposed by Tobias JA. 50 TOBIAS JA: This appeal raises two issues of which the first is of some importance. It concerns the question whether s 101 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) protects from challenge the validity of a condition imposed by a council pursuant to s 94(1)(a) of that Act requiring the dedication of land to the council free of cost in breach of s 94(11). The second, which arises only if the first question is answered in the negative, is concerned with whether in the particular circumstances of the case, the subject condition may be severed from the consent upon which it was imposed so that the latter stands shorn thereof. 51 The primary judge, Pain J, answered the first question in the negative and the second question in the affirmative. She accordingly made a declaration that the relevant condition was void and of no effect: Anambah Homes Pty Ltd v Maitland City Council (2004) 135 LGERA 421; Anambah Homes Pty Ltd v Maitland City Council (No 2) [2004] NSWLEC 719. It is against that decision that the appellant (the Council) appeals to this Court.

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The relevant facts and planning and legislative history 52 Anambah Homes Pty Ltd (the respondent) was the owner of 91.9 hectares of residentially zoned land at Rutherford comprising Lots 1, 2, 7 and 8 DP2881 (the land). It proposed to subdivide that land in stages or Precincts. The subdivision was known as the Anambah View Estate (the Estate). Precincts 1 to 10 were the subject of consents granted by the Council between 1990 and 1998. Those Precincts generally comprised the southern half of the land which fronted the New England Highway. It would appear that by March 1999 the unsubdivided residue of the land comprised Lot 606 in DP874388 (Lot 606). 53 On 20 October 1999 John G Nelson Pty Limited, Consultants Surveyors and Engineers (the surveyors) lodged a development application on behalf of the respondent with the Council to subdivide Precinct 11 which comprised an area of 42.7 hectares being part of Lot 606. 54 On 24 March 2000 the surveyors advised the Council that it was proposed to split the application to subdivide Precinct 11 into two applications numbered Precinct 17 and 18 respectively. On that day an application to subdivide Precinct 18 comprising an area of 7.05 hectares was lodged with the Council together with a Statement of Environmental Effects (the SEE). The SEE revealed that, of the total area of 7.05 hectares, it was proposed to subdivide 2.14 hectares into 24 residential lots (being Lots 1801 to 1824 inclusive) together with a residue lot, Lot 1825, having an area of 5.1 hectares. 55 At or about the same time the surveyors lodged with the Council development applications to subdivide Precincts 11, 12, 13, 14, 15, 16 and 17. Precinct 17 being the balance of Lot 606 comprised 37 residential lots and one residue lot; Precinct 15 proposed the subdivision of that residue lot into 49 residential lots and one residue lot; Precinct 18 to which I have already referred, related to the subdivision of that residue lot. 56 The area of land which became Lot 1825 had been proposed as open space since 22 August 1986 when the Council prepared, pursuant to s 72 of the EP&A Act, Development Control Plan No.9 (DCP 9) for the Aberglasslyn/North Urban Release Area (the release area). DCP 9 was amended on 24 June 1989, 17 April 1991 and 16 December 1992. It was the 16 December 1992 version of DCP 9 which was applicable as at the date of the Council's consent to subdivide Precinct 18. 57 As the Council placed much reliance upon the provisions of DCP 9, it is appropriate at this point in the narrative to set out its relevant provisions. 58 Section 5.0 of DCP 9 was headed "PROVISION OF PUBLIC AMENITIES AND SERVICES". It relevantly was in the following terms: "5.1 In accordance with Clause 11 of Maitland Local Environmental Plan 1986, Council may require the dedication of land or the payment of a monetary contribution, or both, for public amenities and public services. 5.2 Monetary contributions shall be paid to Council and/or arrangements made with Council to Council's satisfaction for the dedication of land and/or the undertaking of works or improvements, for the following forms of development at the stated times: (i) subdivision - prior to endorsement of the Council Clerk's Certificate for the development; … 5.3 Public Recreation and Open Space 5.3.1 Land dedicated for public open space purposes shall be of sufficient area to meet the communities recreational needs, both passive and active. …Land shall be dedicated for public recreation purposes at the rate of 108 square metres per residential lot. …Council reserves the right to determine a cash payment in lieu of the provision of embellished open space land should circumstances so warrant. 5.3.2 Land dedicated for public open space purposes shall be embellished to the satisfaction of Council. … 5.3.3 Areas of major open space shall be provided as indicated on the development control plan map. The boundaries of these areas are indicative only and are subject to survey and detailed subdivision planning."

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60 Although Item (i) in the above summary does not refer, unlike the other items, to its source as s 94 of the EP&A Act, it is clear that this was an unintended omission. 61 The extent of the release area was identified on the plan that follows the text in DCP 9. It indicated that the majority of the respondent's land was proposed for residential development but it identified an area which eventually coincided with Lot 1825 as being "OPEN SPACE". Clause 5.1 of DCP 9 referred to clause 11 of Maitland Local Environmental Plan 1986. This instrument was repealed on 3 September 1993 when Maitland Local Environmental Plan 1993 was gazetted. Further, clause 5.1 was in the form it took because, up until it was repealed by the Environmental Planning and Assessment (Amendment) Act 1985 (the 1985 Act), s 94(2)(a) of the EP&A Act provided that a condition referred to in s 94(1), requiring either the dedication of land free of cost or the payment of a monetary contribution where the development, the subject of a development application, was or was likely to require the provision of or increase the demand for public amenities and public services, could only be imposed where an environmental planning instrument identified such a likely increased demand and further stipulated that a dedication or a contribution under s 94(1) or both may be required as a condition of any consent to the development that generated that demand. 62 Accordingly, clause 11 of Maitland Local Environmental Plan 1986 was inserted into that instrument in order to comply with s 94(2)(a) of the EP&A Act as it then stood and clause 5.1 of DCP 9 merely reflected that fact. 63 The 1985 Act which repealed s 94(2)(a), commenced on 3 February 1986. From then until 14 February 1992 the only limitations upon the imposition pursuant to s 94(1) of a condition requiring either the dedication of land free of cost or the payment of a monetary contribution or both were the requirements that the relevant development would or was likely to require the provision of or increase the demand for public amenities and public services within the relevant area and that the dedication or contribution be reasonable: see s 94(2)(b). 64 On 14 February 1992 the Environmental Planning and Assessment (Contributions Plans) Amendment Act 1991 commenced (the 1991 Act). It inserted a new s 94(7) and 94(8) which were in the following terms: "(7) When granting consent to a development application made on or after the first anniversary of the date of assent to the Environmental Planning and Assessment (Contributions Plans) Amendment Act 1991 or such earlier day as may be fixed by proclamation for the purposes of this subsection, a council may impose a condition referred to in this section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94AB. (8) A condition of a kind allowed by a contributions plan may be disallowed or amended by the Court on appeal because it is unreasonable, even if it was determined in accordance with the plan." 65 Section 94AB provided for the preparation and approval of a contributions plan for the purpose of imposing conditions referred to in s 94. Section 94(7) was itself amended by Act No.89 of 1992 which substituted the following for that enacted in 1991: "(7) When granting consent to a development application made on or after 1 July 1993, a council may impose a condition referred to in this section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94AB." 66 In September 1995 the Council approved a contributions plan for the purpose of ss 94AB and 94(7) (the Contributions Plan). Clause 3 of that Plan defined "contribution" to mean "a monetary contribution or land dedication as referred to in section 94 of the Act." 67 Section 2.0 of the Contributions Plan was headed "Recreation Facilities". It referred to the preparation by consultants of a Recreation and Space Strategy Plan in 1993 and recognised that only some of the facilities referred to in that Strategy could be funded through s 94 contributions. Under the heading "Likely Future Demand for Recreation Facilities", reference was made to the demand for recreation facilities established as part of the Strategy Plan noting the future demand for recreation opportunities was expected to be greatest in the western precincts (including Rutherford). The Contributions Plan then noted that future local needs had been assessed on the basis of linking future expected population growth with accepted guidelines for provision of recreation facilities in developing areas and that these works "may be funded through Section 94". 68 Under the heading "Proposed Recreation Facilities", the Contributions Plan then set out in Table 14 proposed local open space facilities and their indicative cost. Table 15 then set out the indicative costs for open space facilities including $2,196,150 for "future local facilities". The document went on to state that not all those costs were attributable to s 94 works. Table 16 then set out the indicative costs for open space facilities to be funded through s 94 contributions which included the totality of future local facilities referred to above. The Contributions Plan then stated that given the anticipated population growth, the average cost of local open space facilities was calculated by dividing $2,196,150 by an anticipated population of 7,800 to give an amount of $281 per person. 69 Under the heading "Calculation of Contribution", the average cost of $281 per person was then apportioned between city wide and local facilities, the former being calculated at $149 per person and the latter with respect to the western sector (in which the Estate was located) being calculated at $167 per person. 70 What is clear from the foregoing is that so far as the imposition of a condition pursuant to s 94 for the provision of open space facilities was concerned, the Contributions Plan contemplated that that contribution should only be by way of a monetary contribution. 71 This conclusion was reflected in the consents granted by the Council in respect of the Estate after September 1995. Thus in a consent granted on 28 July 1998, in respect of the subdivision of one of the precincts into 42 lots, Condition 23 provided (so far as is relevant) as follows: "CONTRIBUTIONS/FEES Reason: The following condition(s) have been applied to ensure that: (1) Where the proposed development results in an increased demand for community facilities/services payment towards the cost of providing these facilities/services is made in accordance with either an adopted policy of Council or Councils adopted contributions plan prepared via the provisions of section 94 of the environmental planning and assessment act, 1979. … 23. The payment of a monetary contribution in accordance with Council's policy adopted on the 1st September, 1995 for the Provision of Recreational Open Space, Recreational Facilities and Community Facilities for land within the Maitland Local Government Area as follows: City Wide 1. … 2. Recreation and Open Space $20,705 … West Sector 1. Recreation & Open Space $51,086 … NOTE: The above rates are effective from 1st January, 1998 and will be subject to inflation adjustment, calculated as at the date of payment. … …

[50]

Your attention is drawn to Clause 17 of Maitland City Council's, Section 94 Contributions Plan (Amended 22nd April 1997) relating to "Work in Kind" (dedication of land)…." 72 It will be noted that the condition required only a monetary contribution and there was no condition imposed in the consent that required the dedication of land free of cost for the purposes of open space. However, the condition refers to clause 17 of the Contributions Plan which is headed "Can 'In Kind' Contributions be made?". The following provisions of clause 17 were relied on by the Council in its submissions: "17. Can 'In Kind' Contributions be made? 17.1 The consent authority may accept an offer by the applicant to make a contribution by way of an 'in kind' contribution or a material public benefit as referred to in section 94(2C). An 'in kind' contribution may include the dedication of land. 17.2 The consent authority may accept the offer of an 'in kind' contribution if the applicant or another person entitled to act upon the relevant consent satisfies the consent authority that; 17.3 … 17.4 Applications for in-kind works shall be accompanied by a request for an appropriate modification, under Section 102 of the Environmental Planning and Assessment Act 1979, to the terms of development consent to omit the condition requiring a cash contribution and inserting a condition covering the in-kind works to the satisfaction of Council. 17.5 … 17.6 The decision to accept an offer of an in-kind contribution is the sole discretion of the consent authority. 17.7 … 17.8 … 17.9 In considering whether to accept the provision of land as a partial or total offset of contributions toward recreation facilities under this plan, the Council shall generally have regard to the following: … Where it is agreed to accept the provision of land under this clause, the amount of any consequent reduction in contributions toward recreation facilities shall be determined having regard to the following: (a) i High quality bushland forming part of the identified linkage, or … " 73 Clause 17.1 referred to s 94(2C) which was inserted into the EP&A Act by the 1985 Act. That section provided as follows: "(2C) The consent authority may accept - (a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (2A); or (b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (2A)." 74 Section 94(2A), which was inserted by the same Act, empowered a consent authority to grant consent subject to a condition requiring the payment of the monetary contribution towards the recoupment of the cost of providing public amenities and public services which had been provided by the Council within its area in preparation for, or to facilitate the carrying out of, development in that area. 75 In my opinion it is tolerably clear that clause 17 of the Contributions Plan contemplated the dedication of land by way of an "in kind" contribution in lieu of compliance with a condition requiring the payment of a monetary contribution imposed by the original consent. In other words, it permitted an applicant to whom a consent had been granted subject to a condition requiring a monetary contribution to substitute for that contribution the dedication of land which met the criteria referred to in the clause. That this is so appears from the history of those consents which were tendered in evidence before the primary judge. 76 Although there were five consents granted with respect to the Estate between 17 July 1990 and 13 April 1993 (which was before the Contributions Plan was approved) which contained a s 94 condition requiring the dedication of land for passive open space, the s 94 condition imposed on those consents granted thereafter (apart from that approving Precinct 18) only required a monetary contribution. Thus, in a consent granted to the respondent on 31 March 1995 for the creation of 54 allotments, Condition 18 imposed a requirement for only a monetary contribution for the provision of recreational open space and recreational facilities of $69,822. And yet, according to the registered deposited plan that followed upon that consent, two lots appear to have been dedicated as public reserves although a handwritten note on the deposited plan stated that that dedication was "not required as a condition of consent". 77 I have already referred in [71] above to Condition 23 of the consent granted on 28 July 1998. The registered deposited plan relating to the subdivision the subject of that consent also noted that one lot was dedicated as public reserve. It can be inferred in both cases that, as no condition was originally imposed requiring the dedication of land free of cost for open space or for public reserve, the respondent subsequently offered an "in kind" contribution by way of dedication of land in lieu of the requirement to pay a monetary contributions pursuant to clause 17 of the Contribution Plan. 78 On 27 June 2000 the Council granted consent to the development applications with respect to Precincts 12, 13, 15, 17 and 18. Apart from that relating to Precinct 18, the other consents imposed only a condition requiring a monetary contribution. The form of the relevant conditions mirrored that referred to in [71] above except that there was no reference to clause 17 of the Contributions Plan. So far as consent with respect to Precinct 18 was concerned (the Consent), under the heading "CONTRIBUTIONS/FEES" Condition 16, which also was in the same terms as that referred to in [71] above (except, again, there was no reference drawing attention to clause 17 of the Contributions Plan), provided only for the payment of a monetary contribution. It was common ground that "Council's policy adopted on the 1st September 1995" was a reference to the Contributions Plan. 79 Following the heading "CONTRIBUTIONS/FEES" in the Consent was the heading "TRAFFIC/ROADS/FOOTPATH". There followed Conditions 20 to 35 all of which dealt with those subjects. Condition 36 was the last condition under that heading and was in the following terms: "Lot 1825 shall be dedicated to the public as reserve with the endorsement of the linen plan for Precinct 18." 80 It was accepted that this was a condition purportedly imposed pursuant to s 94(1) requiring the dedication of Lot 1825 to the Council free of cost. It is obvious that it had nothing to do with the subject matters of "TRAFFIC/ROADS/FOOTPATH". 81 Although it was suggested that it may well have been that the respondent had offered to dedicate Lot 1825 pursuant to clause 17 of the Contributions Plan, there was no evidence to support that contention. Relevantly, there was no reference to such an offer in the SEE which supported the development application in respect of Precinct 18. Paragraph 4.10 of the SEE was headed "Social and Economic Effects". It referred to the "[s]ocial demands arising from the development [that] have been addressed in Council's Section 94 plan for the North Rutherford Release Area."

[52]

It was then suggested that the cycleway should be rerouted although it was still to continue in a southerly direction along the " proposed reserve Lot 1825 ". 84 Under the heading "Precincts 17 & 18 - Bushland", the report noted that those precincts had been the subject of 13 submissions from concerned residents and one petition containing 300 signatures. The authors then stated that the issues raised in the submissions could be reduced into four of which only the following is relevant: "Seek retention of thirty-three lots in Precincts 17 & 18 as a public reserve." 85 With respect to these submissions the "Planners Comments" were expressed as follows: "The Development Control Plan No. 9 - Aberglasslyn/North Rutherford adopted in 22 August 1986 clearly identified the area that would form the future open space network within the urban release area. This network has been defined to not only retain bushland, but to also provide a network of linked open space to accommodate an off-road cycleway network and facilitate pedestrian movement throughout the subdivision. In conjunction with previous stages of the subdivision, the developer has paid contributions in accordance with Council's adopted Section 94 Contributions Plan, including a component for open space/recreation. These contributions will be used to purchase the land identified under the Development Control Plan as 'Open Space'. In relation to the subdivisions currently before Council this area is shown as Lot 1825 in Precinct 18 . Based on current land valuations, it is anticipated that there is unlikely to be sufficient surplus in the Section 94 funds to enable purchase of additional land, such as the thirty-three (33) lots identified in the submissions. This land would need to be purchased at a prime residential rate, particularly when a range of development costs have already been incurred by the developer which would be reflected in the market value of the land. No alternative sources of funding have been identified for either the acquisition of native bushland by Council or for its ongoing management." (emphasis added) 86 It is clear from the emphasised portion in the above passage that, firstly, it was acknowledged that the respondent had paid contributions in accordance with the Council's adopted Contributions Plan including a component for open space, which were to be used to purchase Lot 1825, and secondly, the reference to an insufficient surplus in the s 94 funds to enable the purchase of additional land was directed, not to the acquisition of Lot 1825, but to the 33 lots identified in Precincts 17 and 18 by the objectors. Those lots comprised 33 proposed residential lots. They had nothing to do with Lot 1825. 87 Under the heading "Financial Implications" the report stated that there were no financial implications should the Council resolve to determine the development applications (ie, for Precincts 17 and 18) in their submitted form. However, there would be significant financial implications should it seek to acquire land within Precincts 17 and 18 for the purpose of conserving native bushland, this being a reference back to the submission received that 33 lots in those precincts should be retained as public reserve as they comprised native bushland. It is to be noted that there was no suggestion that that extra land had been identified as open space in DCP 9. 88 Under the heading "Conclusion", the planners stated that the proposed subdivision complied with DCP 9 and that its approval would lead to an acceptable form of residential development on land which had been zoned for that purpose for a considerable time. Accordingly the granting of consent was recommended subject to the conditions attached to the report. It was further recommended that the petition "calling for the immediate minimisation of destruction of the valuable urban bushland" be received and noted. 89 The planners' recommendations were adopted by the Council at its meeting on 27 June 2000. The Notice of Determination of the Consent which then issued contained the conditions to which I have already referred including Condition 36. We were asked by the Council to infer that Condition 36 was one of the conditions attached to the report. Given the terms of its resolution, which mirrored the planners' recommendations, this may in fact be the case. As Condition 36 was accepted as requiring dedication of Lot 1825 free of cost, it was clearly inconsistent with the unequivocal statement of the planners that Lot 1825 was to be purchased out of the monetary contributions which had been paid and would be paid in respect of the balance of the precincts in the Estate, by the respondent. As the totality of the evidence in the proceedings was documentary, the Council provided no explanation as to how this inconsistency came about. 90 I shall return to some of the above matters later in these reasons as they are of particular relevance to the issue of severance.

[53]

The nature of the proceedings before the primary judge 91 On 7 November 2003 the respondent lodged with the Council an application under s 96(2) of the EP&A Act seeking the modification of the Consent by the deletion of Condition 36. On 18 March 2004 the respondent filed an application in Class 1 of the jurisdiction of the Land and Environment Court appealing against the deemed refusal by the Council of that application. One of the grounds relied upon was that Condition 36 had been invalidly imposed because at the time of its imposition it was not a condition of a kind allowed by, or determined in accordance with, the Contributions Plan as approved under s 94B. In this respect, s 94(7) which was inserted into s 94 by the 1991 Act, had been replaced by s 94(11) which provided as follows: "A council may impose a condition referred to in this section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94B." 92 In response to the respondent's appeal the Council asserted that it was not open to the respondent to challenge the validity of Condition 36 upon the basis that its imposition involved a breach of s 94(11) because its validity was protected from challenge by s 101 of the EP&A Act which, relevantly, provided as follows: "If public notice of the granting of the consent … is given in accordance with the regulations by a consent authority …, the validity of the consent … cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of three months from the date on which public notice was so given." 93 Public notice of the granting of the Consent with respect to Precinct 18 was given in accordance with the regulations on 7 July 2003. The three month period referred to in s 101, within which the validity of the Consent could be questioned, expired on 7 October 2003. Accordingly, the Council contended that it was open neither to the respondent in its s 96 application to seek, nor to the Court on appeal to order, the deletion of Condition 36 on the basis that it was invalid. 94 The jurisdictional issue was raised by the Council in its amended Statement of Issues filed in respect of the Class 1 proceedings. In response, on 21 October 2004 the respondent filed an application in Class 4 of the Court's jurisdiction seeking, inter alia, a declaration as to the invalidity of Condition 36. Both matters came before the primary judge who, on the respondent's motion, ordered that the Class 1 and 4 proceedings be consolidated. Her Honour then proceeded to hear and determine those proceedings. As she declared Condition 36 to be void and of no effect, she could only have done so in the Class 4 proceedings from which an appeal lies to this Court on both issues of fact and law.

[55]

The decision of the primary judge with respect to the application of s 101 97 Although the respondent submitted that s 101 did not apply to protect the validity of a condition of a consent as distinct from the consent itself, that contention was contrary to the decision of Cripps CJ (as he then was) in Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55 where, at 63, his Honour held that the word "consent" in what was then s 104A of the EP&A Act (now s 101) included the conditions annexed to the consent and which formed a part of it. Accordingly, a challenge to a condition was a challenge to the consent itself. The primary judge applied that decision and therefore rejected (at [20]) the respondent's submission to the contrary. The respondent advisedly did not file a Notice of Contention to challenge that part of her Honour's decision. 98 The respondent then submitted that the present case fell within the exceptions to privative clauses identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615. The effect of what is now referred to in the authorities as the threefold Hickman principle is that a privative clause such as s 101 only applies to bar the proceedings to which it refers where the decision of the body, the validity of which is sought to be challenged, is a bona fide attempt by it to exercise its power, where the decision relates to the subject matter of the relevant legislation and where it is reasonably capable of reference to the power given to the body. 99 In the present case, it was submitted that, s 101 did not protect against a challenge based on jurisdictional error even if that error was not "manifest". Alternatively, it was submitted that there was manifest jurisdictional error on the part of the Council in imposing Condition 36 as the fact that its imposition was ultra vires or beyond power was ascertained by reference to s 94(11) of the EP&A Act and the Contributions Plan which made no allowance for the imposition of a condition pursuant to s 94(1) that required the dedication of land free of cost. 100 The Council submitted that although s 101 did not protect a challenge based on jurisdictional error, such an error must be manifest on the face of the consent or condition before an exception to the Hickman principle could be established. It was further submitted that no such manifest error was evident on the face of Condition 36, it being impermissible to refer to the Contributions Plan for that purpose. 101 After the hearing before the primary judge was concluded, on 19 November 2004 this Court delivered its judgment in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707. The parties were granted leave to provide written submissions with respect to the effect of that decision on the present case. 102 After referring to the decision of this Court in Sericott v Snowy River Shire Council (1999) 108 LGERA 66, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales (2003) 57 NSWLR 212 and Pallas Newco, her Honour expressed the opinion (at [26]) that the majority view in Pallas Newco, albeit obiter, was to the effect that the time bar imposed by s 101 was subject only to the Hickman principle and, relevantly, only to "manifest jurisdictional error". 103 The primary judge then found (at [27]) that not only was there jurisdictional error on the part of the Council but also it was manifest, accepting for this purpose that she was entitled to have regard not only to the Consent and its conditions but also to s 94(11) of the EP&A Act and the Contributions Plan in order to confirm that it made no provision for the dedication of Lot 1825 free of cost. She accordingly held that the public notice given pursuant to s 101 did not operate as a bar to the respondent challenging the validity of Condition 36. Given her Honour's finding that that condition was imposed in breach of s 94(11) was and, therefore, was invalid, she declared the condition to be void and of no effect.

[56]

The decision of the primary judge with respect to the issue of severance 104 The question of severance was, as I have noted, separately argued and the subject of a judgment delivered by her Honour on 21 December 2004. The Council had submitted that applying the tests identified in Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 and Kriticos v Parramatta City Council (1971) 21 LGERA 404 at 408, Condition 36 was not severable as it was an essential aspect of the Consent to Precinct 18 as granted. 105 The respondent submitted that the condition was severable given that it was clear from the report of the Council's planners to which reference has been made in [85] above, that it was their intention that Lot 1825 would be purchased using funds provided by the respondent by way of monetary contributions pursuant to s 94 imposed upon the consents to the various precincts within the Estate. It was further submitted that the severance of Condition 36 from the Consent would in any event leave Lot 1825 as a separate lot which the Council could purchase or compulsorily acquire as it saw fit in order to achieve the purpose of DCP 9 that it ultimately become public open space. 106 After referring to Greek Australian Finance Corporation, Kriticos, Wechsler v Auburn Council (1997) 130 LGERA 134 and Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 at 101E-F, her Honour (at [14]) acknowledged the importance of Lot 1825 being a public reserve or public open space and indicated that she was satisfied that when the Council granted consent to the subdivision of Precinct 18 it did so on the basis that this would occur. However, after citing the passage from the Town Planners' report referred to in [85] above, she found (at [16]) that the Consent was granted on the basis that the Council would acquire Lot 1825 for value using the s 94 contributions provided by the respondent. As Condition 36 required the dedication of Lot 1825 free of cost and as the Contributions Plan did not allow the imposition of such a condition, her Honour held that the condition did not reflect the intention of the Council at the time the Consent was granted that Lot 1825 be acquired for value. Accordingly she held (at [17]) that it was severable from the balance of the Consent. 107 The primary judge so concluded upon the basis that both the tests to which the authorities referred were satisfied. This was because the deletion of Condition 36 did not result "in the balance operating in a manner which is different to that in which the whole would have operated" as it was still open to the Council to acquire Lot 1825 for value either by negotiation or by rezoning the land appropriately and exercising its compulsory acquisition power. Alternatively, in the circumstance that it was the intention of the Council that Lot 1825 be acquired for value, Condition 36 could be regarded as neither relating to matters fundamental to the development the subject of the Consent nor going to the root of the Consent itself. 108 Accordingly, her Honour found (at [17]) that it was unnecessary to decide between the two tests upon the basis that the condition satisfied both and was, therefore, severable with the result that the Consent could stand with Condition 36 excised therefrom.

[57]

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)

[58]

The Chief Justice then said: "The concepts of 'manifest defective jurisdiction' and 'manifest fraud' are the obverse of what 'appears to be within power' and 'a bona fide to act in the course of … authority', …" 117 His Honour then referred to the facts in Hickman and to the High Court's opinion that the relevant "decision" in that case did not on its face appear to be within power as a consequence of which Reg 17 did not protect it from judicial interference. Pausing there, it might be suggested from the foregoing that the requirement that the defect in jurisdiction be "manifest" was related to that limb of Hickman that requires that the decision be a bona fide attempt to exercise the relevant power. 118 The third reference relied upon by Spigelman CJ is to the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157 at 499-500 [56] in which their Honours quote the passage from the judgment of Dixon J in Hickman at 614-615 in which he sets out the threefold principle. The final reference by Spigelman CJ was to the following paragraph in the joint judgment (at [57]) where their Honours said of the passage from the judgment of Dixon J quoted in [56] that he was there speaking of privative clauses generally. Their Honours continued (omitting citations): "Even so, it is important to appreciate that his Honour's observations were confined to 'decision[s] … in fact given'. Moreover and as later decisions of this Court have made clear, the expression 'reasonably capable of reference to the power given to the body' has been treated as signifying that it must 'not on its face go beyond … power'. Thus, even on this general statement, a privative clause cannot protect against the failure to make a decision required by the legislation in which that clause is found or against a decision which, on its face, exceeds jurisdiction." 119 In my opinion, it is apparent from the passages from Plaintiff S157 relied upon by Spigelman CJ in support of the proposition stated in the third dot point of [81] of Pallas Newco which I have set out in [111] above, that the reference to a "manifest" defect is, relevantly, to a decision which, on its face, exceeds the jurisdiction or power of the decision-maker. Accordingly, in the present case the question is whether the fact that Condition 36 exceeded or was beyond the power of the Council to impose conditions under s 94 was plain on the face of the Consent. To put the question in the terms of that expressed by Gleeson CJ in Plaintiff S157 referred to in [116], did the Consent bear on its face every appearance of an attempt by the Council to pursue the power under s 94 to impose Condition 36? 120 The respondent's primary submission was couched in somewhat different terms. It submitted that the imposition of Condition 36 was not reasonably capable of reference to the combined operation of subsections (1) and (11) of s 94 in that it did not on its face, when taken in the context of the Consent as a whole, relate to an exercise by the Council of its power to impose a condition requiring the dedication of land free of cost which was of a kind allowed by, and determined in accordance with, a contributions plan approved under s 94B. If this was the right approach, then I do not think it was necessary for the primary judge to refer to the Contributions Plan to determine that that plan did not make allowance for the imposition of a condition such as Condition 36. 121 However, in my opinion the correct approach which accords with authority is that which I have set out in [119] above. The question there posed requires consideration of the whole of the Consent in order to ascertain whether, on its face, the imposition by the Council of Condition 36 bears the appearance of an attempt to exercise the relevant power - in this case, s 94. If it cannot, then on the face of the Consent the imposition of Condition 36 exceeded the Council's jurisdiction or power. 122 It might be suggested that the test articulated by Gleeson CJ in Plaintiff S57 is inconsistent with that expressed in the joint judgment in that case. That of the Chief Justice was that the third limb of the Hickman principle will not be satisfied if the decision the invalidity of which is sought to be protected by the privative clause does not bear on its face every appearance of an attempt to pursue the relevant power. That of their Honours in the joint judgment was that the third limb will not be satisfied if the decision, on its face, exceeds jurisdiction, that is, exceeds the limits of the relevant power. When considering the two approaches, it is necessary to be careful to compare like with like. I mention this because in the passage from the judgment of the Chief Justice which I have recorded in [116] above, he expresses the test in terms of when the third limb will be satisfied. On the other hand, in the passage from the joint judgment recorded in [118] above, their Honours express the test in terms of when the third limb will not be satisfied. I have therefore attempted to reframe that of the Chief Justice accordingly so one is comparing like with like. 123 In my opinion when so compared there is no difference in substance between the two tests. If the decision does not bear on its face every appearance of an attempt to pursue the relevant power, then it will also, on its face, bear the appearance of exceeding the jurisdiction or power to make it. Translated to the present case, if Condition 36 does not bear on the face of the Consent every appearance of an attempt to pursue the power to impose such a condition under s 94, so also will it appear on the face of the Consent to have been imposed otherwise than under s 94, that is, to have been imposed in excess of the power of the Council under s 94.

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124 I am conscious of the observation of Ipp JA in [38] of his judgment that, on the basis of the passage cited by him in the preceding paragraph from the joint judgment of Deane, Gaudron and McHugh JJ in O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 287, it is arguable that for the third limb of the Hickman principle to be satisfied, the instrument containing the relevant decision must, on its face, show that the challenged decision purports to be made in accordance with an appropriate head of power. That approach, which is of a positive character, accords closely with my own. 125 Ultimately, however, his Honour considered that an approach of a more negative character was more in accord with authority, namely, that the third limb of the Hickman principle will be satisfied if the excess of jurisdiction does not appear on the face of the relevant instrument or decision: in other words, if nothing appears on the face of the Consent to indicate that Condition 36 did not purport to have been imposed pursuant to s 94. On the basis of this negative approach, his Honour has held that Condition 36 did not appear on the face of the Consent to exceed the power of the Council to impose it or, as expressed by Spigelman CJ (at [17]), nothing appears on the face of the Consent that indicates that it was not imposed pursuant to s 94. This is said to be the correct approach because to establish that Condition 36 was beyond power, it would be necessary to go outside the Consent and resort to the Contributions Plan. However, this last mentioned factor is, I apprehend, irrelevant to the present enquiry: see [133] and [134] below. 126 I accept Ipp JA's observation in [42] of his judgment that the fundamental element of a finding that a decision is incapable of reference to the relevant power is the requirement that the excess of jurisdiction must appear on the face of the relevant instrument. Translated to the facts of the present case, Condition 36 will only be found not reasonably to relate to s 94 if the fact that it was imposed otherwise than in accordance with s 94 appears on the face of the Consent. In other words, the excess of jurisdiction which must appear on the face of the Consent is the fact that Condition 36 did not purport to have been imposed by the Council pursuant to s 94. 127 Establishing that fact requires the Court to determine whether there is anything on the face of the Consent that purports to relate Condition 36 to the relevant source of power, namely, s 94. With all due respect, therefore, I cannot agree with Ipp JA that the test is of the negative character which he has adopted, namely, that the third limb of the Hickman principle will be satisfied if the fact that Condition 36 was imposed by the Council otherwise than in accordance with s 94 does not appear on the face of the Consent. It is only if it does not so appear, that the third limb of Hickman is, according to his Honour, satisfied. It must therefore follow that the third limb would not be satisfied if the fact that Condition 36 was imposed otherwise than under s 94 did appear on the face of the Consent. If the latter was the case, as I consider it was, then it must equally follow that Condition 36 would, on the face of the Consent, exceed the Council's jurisdiction or power to impose it. 128 I would concede that on the face of the Consent, there is nothing to link Condition 36 to a purported exercise by the Council of its power under s 94. But it is that very fact, which I seek to make good below, that establishes that the relevant excess of jurisdiction, namely, the fact that Condition 36 was imposed otherwise than in accordance with s 94 does indeed appear on the face of the Consent with the result that the third limb of the Hickman principle is not satisfied. 129 On its face, Condition 36 could not be said in its context to be reasonably capable of referring to s 94 at all. In this respect it stands in contrast with Condition 16 which on its face required the payment of a monetary contribution in accordance with the Contributions Plan for the purpose of s 94. The stated "reason" which immediately preceded that condition made that plain where it referred to the proposed development resulting in an increased demand for community facilities/services (thus reflecting the requirements of s 94(1)) and to the Council's adopted contributions plan prepared "via the provisions of section 94". 130 On the other hand, Condition 36 was the last condition imposed by the Council under the heading "TRAFFIC/ROADS/FOOTPATH". It makes no express reference to Lot 1825 being dedicated "free of cost" although it uses the word "dedicated" which both parties accepted should be construed to refer to it being so dedicated. More significantly, it has nothing to do with the subject matter of the heading under which it was located. Further, unlike Condition 16, it has no relationship with the stated reason for the imposition of Conditions 20 to 35. It just hangs in the air, as it were, unrelated to anything. It reads purely as an afterthought. Its imposition by the Council, being unrelated on the face of the Consent to s 94, leads to the conclusion that it could not be said that its imposition was reasonably capable of reference to the relevant power. In other words, on the face of the Consent, the imposition of Condition 36 exceeded the power of the Council to impose it or, to adopt the words of the Chief Justice in Plaintiff S157, the Consent did not bear on its face the appearance of an attempt by the Council to impose the condition under s 94. 131 In my opinion, therefore, the primary judge was correct to hold that Condition 36 was imposed in excess of jurisdiction which was, in the relevant sense, "manifest" in that it appeared on the face of the Consent to have been imposed otherwise than pursuant to s 94 of the EP&A Act, the only relevant source of power. 132 I would accordingly reject the Council's submission that s 80A(1)(a) of the EP&A Act was a relevant source of power: it is now well established that the only source of power authorising the imposition of a condition requiring the dedication of land free of cost or a monetary contribution is to be found in s 94 of the EP&A Act: Fitch v Shoalhaven City Council (1989) 67 LGRA 165 at 170; Fairfield City Council v N & S Oliveri Pty Ltd [2003] NSWCA 41 at [22] per Spigelman CJ; at [73] per Cripps AJA; see also s 80A(1)(h) which expressly authorises the imposition of a condition under s 94. 133 In my opinion it was therefore unnecessary for the primary judge to have had regard to the Contributions Plan for the purpose of determining whether the relevant jurisdictional defect was "manifest". Unless that plan was incorporated by reference into the Consent in which event it would have constituted part of the Consent (Craig v South Australia (1995) 184 CLR 163 at 181), the better view is that regard to the Contributions Plan for the purpose of determining whether the imposition of Condition 36 was reasonably capable of reference to s 94 was impermissible. Of course, it was necessary to refer to the Contributions Plan for the purpose of determining whether the imposition of Condition 36 was in fact in breach of s 94(11) but that is a different matter. 134 That it was imposed in breach of s 94(11) justified the finding of her Honour that the condition was invalid. But that fact is, in effect, assumed by s 101. The question that that provision throws up for consideration is whether, the condition being invalid, its validity is protected from challenge. That is a narrow enquiry and, given the degree of strictness of scrutiny referred to by Gleeson CJ in Plaintiff S157 at 485 [13] to which a decision otherwise protected by a privative clause may be subjected, the strictness of that scrutiny, encapsulated in the requirement that the jurisdictional defect be "manifest", limits that to which regard may be had in determining whether the decision was reasonably capable of reference to the relevant power. 135 Accordingly, I would uphold her Honour's decision, although for somewhat different reasons, that s 101 did not protect the respondent's challenge to the validity of Condition 36. 136 Furthermore, notwithstanding the submissions of the Council, in my opinion the imposition of a condition in breach of the mandatory provisions of s 94(11) was of such significance in the legislative scheme as to constitute a limitation on power which was "essential", "imperative" or "inviolable". Again, it is instructive to refer to the passages in Plaintiff S157 relied upon by Spigelman CJ in support of the proposition set forth in the last dot point of the passage from his Honour's judgment in Mitchforce, repeated in Pallas Newco, and set forth in [111] above. 137 The first such reference was to a passage in the judgment of Gleeson CJ at 488 [20]. After referring to the description by Dixon J in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399 of limitations or conditions on the exercise of the power or authority that were given effect notwithstanding a privative provision as "indispensable", the Chief Justice noted Dixon J's description in Murray of the process of statutory construction which contemplated two steps of which the second was to consider "whether particular limitations on power and specific requirements as to the manner in which the tribunal should be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action."

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The Chief Justice then continued in these terms: "In explanation of the second step, Dixon J referred, by way of analogy, to the distinction between statutory provisions that are directory and those that are mandatory. That distinction is now in disfavour. Even so, the process of ascribing legislative purpose, which underlay the distinction, is one with which courts are familiar. The question is 'whether it was a purpose of the legislation that an act done in breach of the provision should be invalid'. " 138 The test as articulated in the last sentence of the above citation is that adopted by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390. As Spigelman CJ observed speaking extra-judicially in delivering the Third Lecture in the 2004 National Lecture Series for the Australian Institute of Administrative Law in a paper entitled "Integrity and Privative Clauses", "Everything will turn on the specific legislative scheme under consideration in any case. Nevertheless, what appears to be involved is a heightened level of strictness of scrutiny with respect to matters which consideration of the legislative scheme as a whole - namely the total context in which the privative provision has to be construed appears - requires or imposes. There is an idea of essentiality underlying this process. The position is the same as that which the High Court determined to be the case when discussing the terminology often applied to breach of procedural conditions in the Project Blue Sky case." 139 His Honour then cites from Project Blue Sky the test repeated by Gleeson CJ in the last sentence of the passage from his judgment in Plaintiff S157 referred to above. Gleeson CJ then continued (at 489 [21]): "Later again in R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union , Australian Section, Dixon J referred to 'imperative duties or enviolable limitations or restraints' which may be imposed by legislation, contravention of which would not be protected by a privative provision. To describe a duty as imperative or restraint as inviolable is to express the result of process of construction rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made. Because what is involved is a process of statutory construction and attempted reconciliation, the outcome will necessarily be influenced by the particular statutory context." 140 Reference was also made by Spigelman CJ in Pallas Newco to the joint judgment in Plaintiff S157 at 502-503 [65]-[66] where their Honours referred to the second step referred to by Dixon J in Murray and to the passage therefrom cited by the Chief Justice and referred to in [137] above. Their Honours also noted that Dixon J had explained that "a clearly expressed specific intention of [that] kind can hardly give way to the general intention indicated by … a [privative clause]." 141 Their Honours then referred to the decision of the High Court in R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 where it was held that the relevant privative clause could not protect the making of an order authorised under a provision of the Conciliation and Arbitration Act 1904 that an organisation of employees should have the exclusive right to represent some or all of the industrial interests of a class or group of employees who were "eligible for membership of the organisation". The requirement that persons be so eligible was held to be "quite explicit" and thus an inviolable jurisdictional restraint. 142 Further support for this approach was to be found in the judgment of Callinan J in Plaintiff S157 at 534 [160] where his Honour said: "Another way of expressing the rule is in terms of the Privy Council's advice in Willan , that the remedies [of mandamus prohibition and an injunction to cure a manifest error of jurisdiction] will only lie if there has been a departure from an essential or imperative requirement on the part of the relevant officer or tribunal, or a material failure to comply with what might once have conventionally been described as a mandatory provision." 143 Having observed that that approach had much in common with the approach of Mason A-CJ and Brennan J in Coldham, Callinan J noted that the relevant passage in their Honour's judgment in that case recognised "that there might be degrees of limitation upon power, some violable and therefore legally tolerable and some more serious and therefore inviolable and legally intolerable." 144 In my opinion, compliance with s 94(11) of the EP&A Act constituted an inviolable restraint upon the exercise by a council of its power pursuant to s 94(1) to impose a condition requiring the dedication of land free of cost. In construing the provision in this manner I have taken into account a number of considerations. The first is that s 94(11) is expressed in what are clearly mandatory terms: it expressly provides that a council may exercise its discretion to impose a condition requiring the dedication of land free of cost only if it was of a kind allowed by, and was determined in accordance with, an approved contributions plans. 145 Secondly, as already observed, s 94(11) was inserted into s 94 (as s 94(7)) by the 1991 Act. In his Second Reading Speech with respect to the Environmental Planning and Assessment (Contributions Plans) Amendment Bill, the Minister for Planning noted (Hansard, Legislative Council, 19 November 1991, p 4840) that councils had been less than rigorous in their implementation of s 94 and had seen it as a source of general revenue to be spent where they chose. As a consequence, a Commission of Inquiry investigated the many problems associated with s 94 including criticisms levelled at councils' administration of it in particular, the lack of justification for how contributions were arrived at and inappropriate purposes for which they were being raised. The Minister then indicated that it was his intention in introducing the draft Bill "to eliminate such problems and to ensure that councils administer section 94 in a more consistent, professional and accountable way". 146 The Minister continued (Hansard 4840-4841): "… The Bill amends section 94 to provide that, when granting consent to a development application made on or after a date to be proclaimed, a council may impose a section 94 condition only if it is of a kind allowed by, and in accordance with, a contributions plan approved by the council. These contributions plans will be drawn up by way of public participation and ratified by a full council. In this way accountability will arise from councils' section 94 policies being explained and justified in a public document. Improved consistency will be achieved through the establishment of principles in the levying of contributions, also made clear in the contributions plans. Greater certainty will be provided through the contributions plans. Developers will know in advance the level of contributions which will apply to any development and councils' intentions regarding expenditure. People buying into an area will know the level of section 94 contributions required and what services and facilities they can expect . … These plans will be local plans drawn up through community involvement." (emphasis added) 147 In conclusion the Minister said this (Hansard 4842): "In conclusion, councils' powers to obtain developer contributions are extremely valuable. Indeed, without such powers councils would find it impossible to respond to the needs generated by new developments in their area. However, the key issue in the successful operation of section 94 must be the accountability, both public and financial of local councils. The changes I propose will offer much greater accountability and will ensure that this important area of councils' powers is redefined to permit effective use in the future." 148 It will thus be seen that the purpose of amending s 94 by inserting what is now s 94(11) was to ensure that the power of a council to impose a condition pursuant to s 94(1) requiring either the dedication of land free of cost or a monetary contribution was to be far more limited than was previously the case, that its imposition was far more transparent and that the councils were far more accountable in that such a condition could only be imposed where, in effect, it was explained and justified in a contributions plan which was to be a public document. Furthermore, owners of land, whether existing or future, would then know in advance the level of contributions which would apply to any development and thus be able to plan accordingly without being, in effect, hijacked by a council without notice. 149 Only by requiring a condition for the dedication of land free of cost or for the payment of a monetary contribution to be justified in advance, by a public document that had been the subject of community scrutiny, would there be the appropriate degree of accountability by a council in the exercise of what was obviously considered to be a particularly valuable power which, prior to the amendment, enabled a council to impose such conditions and thereby increase their land bank and/or revenue in a manner which was lacking in accountability and transparency. 150 Thirdly, as already noted, conditions imposed by a council pursuant to s 94(1) were dealt with in the EP&A Act in a special way. Section 80A(1) empowered a council to impose a condition of development consent where it fell within one of the categories referred to in subparagraphs (a) to (g). Section 80A(1)(h) only empowered the imposition of a condition which required the payment of a monetary contribution or the dedication of land free of cost if such a condition was authorised to be imposed under s 94. The legislature had thus expressed an intention that such a condition was one which was out of the ordinary. In particular, although related to the development the subject of any consent, such a condition was not concerned to deal with the general considerations referred to, for instance, in s 79C(1) notwithstanding that a council was empowered by s 80A(1)(a) to impose a condition relating to any matter referred to in s 79C(1) of relevance to the development the subject of the consent and that one of the matters so referred to was "in the public interest". 151 In other words, notwithstanding that it could well be said, and the Council in effect so submitted, that the imposition of Condition 36 was clearly in the public interest in terms of providing public open space for the benefit of the occupants of the lots the subject of the Estate nonetheless the legislature had made clear that that of itself was insufficient to justify the imposition of a condition requiring the payment of a monetary contribution or the dedication of land free of cost. The latter could only be imposed pursuant to s 94 and only if it conformed to the requirements of s 94(11). 152 Fourthly, s 94(11) cannot, in my opinion, be construed as some procedural requirement compliance with which was not regarded by the legislature as essential to the validity of the imposition of a condition to which s 94 referred. On the contrary, it was a substantive requirement compliance with which was essential to the power of a council to impose such a condition as a matter of discretion where otherwise it also complied with the opening words of s 94(1) in that the council was satisfied that the development in question would or was likely to require the provision of or increase the demand for public amenities and public services within its area. Such satisfaction was a necessary but not a sufficient condition to enable the power to be exercised. Compliance with s 94(11) was also required, it being the fundamental sine qua non of the valid exercise of what was regarded as a valuable and extraordinary power.

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153 Fifthly, it is true that one of the objects of the EP&A Act referred to in s 5(a)(iv) was to encourage the provision of land for public purposes. That objective could be achieved in a number of ways such as the compulsory acquisition of land pursuant to s 9(1). Again, s 27(1) provided for the reservation by an environmental planning instrument of land for the purpose of open space provided that that instrument made provision for or with respect to the acquisition of that land by a public authority. In the present case there was no such reservation as a development control plan was not included in the definition of "environmental planning instrument". In both the above examples, the relevant land was acquired was for value 154 The objective referred to could also be achieved by the imposition of a condition authorised by s 94. But unless such condition was so authorised (and Condition 36 was not), then the objective referred to could not be lawfully achieved. Furthermore, the exercise of the power would achieve that objective at no public cost. Hence the necessity to subject its exercise to the accountability referred to by the Minister and achieved by requiring compliance with s 94(11). 155 Sixthly, I have already referred to the Council's submission that the respondent had a number of statutory opportunities to challenge at least the merits of Condition 36 including the opportunity to argue that its imposition was unreasonable because, for instance, it was imposed in breach of s 94(11). It could have appealed to the Land and Environment Court pursuant to s 97 or, as it ultimately did, applied to modify the condition by its deletion and to appeal to the Court against the Council's deemed refusal of that application. Further, the respondent had the right to challenge the validity of the condition within three months of the giving of the public notice albeit that there was no evidence that it was aware that that notice had been given. 156 In the context of this last submission, it is to be remembered that the Council granted the Consent imposing Condition 36 on 27 June 2000 whereas the public notice was published in a newspaper pursuant to s 101 three years later on 7 July 2003. As I have said, there was no evidence that the respondent was ever aware of the publication of that notice. 157 The Council therefore submitted that its breach of s 94(11) affected only the respondent as the developer of the Estate. On the facts of the present case one can assume that was so for the purpose of the argument. But in the context of whether compliance with s 94(11) is inviolable, the construction of that provision in the context of the EP&A Act cannot depend upon the facts of any particular case. In any such case a condition requiring the dedication of land free of cost may or may not be beneficial to the developer or, for that matter, the public. 158 Thus assume, for instance, that a council imposed a condition for the dedication free of cost of a particular parcel of land as passive open space in breach of s 94(11) and in circumstances where the local community or public regarded it as useless piece of land: it may be snake-infested or in an inaccessible gully. In such circumstances, given the open standing provisions of the EP&A Act, a member of the public may well wish to challenge its validity so as to force the council to prepare a contributions plan which would be subject to public consultation and which would identify as passive open space a far more desirable parcel of land. 159 In the present case, it may have been open to the Council to argue that as a matter of discretion the Court would not grant a declaration of invalidity upon the basis that the respondent had had a number of opportunities to challenge the validity and/or unreasonableness of Condition 36. I do not stay to consider the merits of any such contention: the fact is that the Council did not raise the question of discretion before the primary judge. 160 Accordingly, for the foregoing reasons in my opinion the legislature, by enacting s 94 in general and s 94(11) in particular, expressed a specific intention that the observance of the limitation contained in, and compliance with the requirement of, s 94(11) were essential to the valid imposition of a condition which required the payment of a monetary contribution or the dedication of land free of cost to the public. In Project Blue Sky terms, it is clear that it was a purpose of s 94 that the imposition of a condition in breach of that provision should be invalid. To adopt and adapt the words of Callinan J in Plaintiff S157, s 94(11) constituted a limitation upon the power of the Council to impose a condition pursuant to s 94 which was inviolable so that non-compliance therewith was legally intolerable. 161 Accordingly, in my opinion non-compliance with what was a fundamental requirement of s 94 constituted a breach of a limitation on the exercise by the Council of its power under s 94(1) to impose a condition requiring the dedication of land free of cost which was essential, indispensable, imperative and inviolable. For this additional reason the primary judge was correct in holding that s 101 did not constitute a bar to the challenge by the respondent to the validity of Condition 36.

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Was Condition 36 severable from the balance of the Consent? 162 In Kriticos at 408, Asprey JA, with whom Holmes and Moffitt JJA agreed, applied the test of severability adopted by Davies LJ in Kingsway Investments (Kent) Ltd v Kent County Council [1969] 2 QB 332 at 362 where his Lordship said: "The true test is that if there is imposed on a permission an invalid condition which relates to matters fundamental to the development and in such a case the whole permission is or may be void. But if … the invalid condition relates not to the development itself but to matters preparatory or introductory to the permission or its final form, then the outline permission should rightly be held to have been granted free form the condition." 163 On appeal to the House of Lords, ([1971] AC 72) Lord Morris said (at 102): "There might be cases where permission is granted and where some conditions, perhaps unimportant or perhaps incidental, are merely superimposed. In such cases if the conditions are held to be void the permission might be held to endure just as a tree might survive with one or two of its branches pruned or lopped off. It will be otherwise if some condition is seen to be part, so to speak, of the structure of the permission so that if the condition is hewn away the permission falls with it." 164 Lord Upjohn (at 113) articulated the test as whether the invalid condition went to the root of the planning permission itself and severely restricted the permission applied for. In Greek Australian Finance Corporation, Holland J (at 144) found that a condition requiring a contribution towards the provision of parking facilities in accordance with the requirements of the council's Parking Policy and Parking Control Code was invalid but, on the evidence, inseverable as it was clear that the council would never have considered or approved the application on the basis that no carparking space was to be provided and no contribution in lieu thereof was to be made by the applicant in circumstances where the particular development generated a need therefor. Accordingly, his Honour considered that the invalidity of the condition rendered the whole consent invalid; or, to borrow the language of Lord Morris in Kingsway, the condition was part "of the structure of the permission so that if the condition is hewn away the permission falls with it." 165 Since those decisions, s 32 of the Interpretation Act 1987 has intervened in which s 32(2) relevantly provides: "If any provision of an instrument … would, but for this section be construed as being in excess of the power conferred by the Act under which it was made: (a) it shall be a valid provision to the extent to which it is not in excess of that power; and (b) the remainder of the instrument … shall not affected." 166 In Sloane at 101, Cole J said this of s 32: "Provisions such as section 32 are to be approached consistently with the principles of interpretation enunciated by Dixon J in Bank of New South Wales v The Commonwealth. The court is required to have regard to the intention of the legislature, but if it appears that severance of an ultra vires portion of a regulation … results in the residue operating differently to the manner in which the whole would have operated, then, notwithstanding provisions such as section 32, severance can be effected. This is because the residue would operate differently to the apparent intention of the legislature." 167 In Wechsler at 137, Talbot J observed that the comments made by Dixon J in Bank of New South Wales and by Cole J in Sloane applied to s 32 of the Interpretation Act so that "[t]he test so understood is that if severance results in the balance operating in a manner which is different to that in which the whole would have operated, then severance cannot be affected. Such a test is to be distinguished from the test derived from [Kingsway Investments] … namely, whether the condition under challenge relates to matters fundamental to the development or goes to the root of the planning permission itself. Although the answer to some factual situations could be the same, the application of the different tests will not always bring about the same result." 168 The Council submitted that it was clearly its intention to impose Condition 36 which was to be taken to be one of the conditions recommended to be imposed upon the Consent in the Town Planners' report. Furthermore, it was submitted that, objectively considered, the Council's intention was that it would not have granted the Consent in the first place had it not imposed Condition 36 or appreciated that it had no power to do so. It further submitted that the primary judge herself had found (at [14]) that she was satisfied that the importance of having Lot 1825 reserved for public open space was clear and that the Council had granted the Consent on the basis that "this would occur". However, it was contended that the primary judge had then incorrectly held that those findings did not resolve the question of whether the Council envisaged that it would acquire the land for value rather than requiring its dedication free of cost in a manner which she had held to be invalid. 169 The primary judge referred to the passages from the Council planners' report to which I have recorded in [85] above and which, as I have said, made it patently clear that the planners contemplated that Lot 1825 would be purchased by the Council from monetary contributions paid by the respondent pursuant to the consents granted to the various precincts in the Estate and that that was the basis upon which they recommended the granting of consent. Her Honour then held that it followed that the deletion of Condition 36 would not result in the balance of the Consent operating in a manner which was different to that in which the whole would have operated as it was still open to the Council to acquire Lot 1825 for value either by negotiating its purchase or by compulsory acquisition. I agree with her Honour's reasoning and her conclusion. 170 However, the Council submitted that her Honour erred in finding that if at the time the Consent was granted, it was the Council's intention that Lot 1825 be acquired for value, Condition 36 could not be regarded as relating to a matter fundamental to the development or going to the root of the Consent itself. 171 I have difficulty in accepting the proposition advanced by the Council that it was its intention in imposing Condition 36 to require Lot 1825 to be dedicated free of cost. The Council submitted, and I am prepared to accept, that Condition 36 was one of the conditions attached to the Town Planners' recommendation to the Council contained in the Executive Summary of their report to the Council meeting of 27 June 2000. Given the terms of the Council's resolution to approve the subject application "subject to the conditions attached to this report", it is clear that it did no more than adopt without amendment the Planners' recommendation. 172 The problem with the Council's contention is that it is tolerably clear from the Town Planners' comments which I have set out in [85] above that it was their intention that the respondent's s 94 monetary contributions would be used to fund the purchase of Lot 1825 and that, therefore, it was never their intention that Lot 1825 be dedicated to the Council free of cost. In my opinion it could therefore be inferred that when the Town Planners drafted Condition 36 as one of the conditions to be attached to their report, not only did they not intend it to be a condition imposed under s 94 but also they had no appreciation that a condition requiring land to be dedicated carried with it the consequent that such a dedication would be free of cost. It may also be inferred that the proper explanation of Condition 36 is that the Town Planners intended that the title to Lot 1825 should pass to the Council upon the registration of the linen plan of subdivision of Precinct 18 and that they had in mind the provisions of s 49 of the Local Government Act 1993 pursuant to which on the registration of a plan on which land is marked with the words "public reserve", the land is dedicated as such and vests in the Council for an estate in fee simple. 173 However, although that may well have been the methodology adopted by the Town Planners in order to obtain title, it was always intended that the "dedication" would be for value and not free of cost. This would also explain why Condition 36 is located at the end of the conditions imposed under the heading "TRAFFIC/ROADS/FOOTPATH" rather than under the heading "CONTRIBUTIONS/FEES" which expressly referred to s 94. In other words, to the extent to which Condition 36 required the dedication of Lot 1825 free of cost, it can be inferred that it was recommended by the Town Planners and adopted by the Council in error. The position may well have been different if the recommended conditions had not included Condition 36 but the Council had expressly resolved that it be added to its resolution to adopt the Planners' recommendation. 174 In my opinion, it is open on the documentary evidence to draw inferences to the effect of what I have said in this and the preceding paragraph. The true position, if it be different to those inferences, could have been the subject of evidence from the Town Planners who signed the report. No evidence was forthcoming to suggest they were unavailable. They were not called. Jones v Dunkel (1959) 101 CLR 298 thus enables the inferences to which I have referred to be more confidently drawn: see Payne v Parker [1976] 1 NSWLR 191 at 201A-B. 175 One can accept that the Council's intention was ultimately to obtain title to Lot 1825 and to acquire it for open space as contemplated by DCP 9. This objective would be achieved, as the respondent submitted, by the fact that Lot 1825 would, on registration of the plan of subdivision, be constituted as a single lot capable of transfer to the Council for value in the usual way. In this respect the Council's true intention would be implemented. 176 For the foregoing reasons in my opinion the primary judge was correct in holding that the deletion of Condition 36 would not result in the balance of the Consent operating in a manner different to that in which the whole would have operated or that Condition 36 was fundamental to the development the subject of the Consent or went to the root of the Consent itself. In my opinion, Condition 36 is severable from the Consent, which remains unaffected thereby.

Maitland City Council v Anambah Homes Pty Limited

At a glance

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Judgment (65 paragraphs)

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Legislation Cited (2)

Cases Cited (30)

Cited By (24)