Makram Constructions Pty Limited v North Sydney Council

Land and Environment Court (NSW)|2002-01-18|Before: Bignold J

The Applicant's lament that since the statutory power conferred by the Roads legislation would have been available to the Court by virtue of the LEC Act, s 39(2) in hearing and disposing of the development appeal in 1999, it should likewise be held to be available to the Court in hearing and disposing of the modification application is not only a proposition that is not accommodated by the text of s 39(2) but fails to recognise (i) that a modification application under the EP&A Act, s 96 is not the same as a development application made under s 77 of that Act (see s 96(4)); and (ii) that the exercise of the modification power is not the exercise nunc pro tunc, of the planning function conferred by the EP&A Act, s 80 to determine a development application.

The last-mentioned distinction is not eliminated by the requirement of s 96(3) that the consent authority, in determining a modification application must take into consideration such of the matters referred to in s 79C(1) as are of relevance to the development, "the subject of the application" as that requirement has been interpreted by the Court of Appeal in North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 437 and Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243. In Coalcliff, Stein JA (who delivered the leading judgment) stated at 261 that the majority decision in Standley did not require "a complete review of the original development application" and did not "render the assessment of a modification application indistinguishable from the assessment of a development application".

Accordingly, for all of the foregoing reasons, I would answer this question in the negative.

In so concluding, I note that in Connery v Manly Council (1999) 105 LEGRA 451 Cowdroy J held that on the hearing of a modification application in respect of a development consent granted by this Court, the Court possessed, by virtue of the LEC Act, s 39(2) the power vested in the Council pursuant to the Roads Act 1993, s 138.

However, it appears from the reasons for his Honour's judgment, that his attention was not specifically called to the precise nature of the proceedings and to the effect of that upon the operation of the LEC Act, s 39(2).

Significantly, in the course of argument in the present case, the Applicant did not rely upon the decision in Connery to support its argument that I have rejected.

In the present case, the Council's argument is founded upon the precise nature of the present proceedings (namely a modification application) and it is with respect to that application (being the relevant "appeal" for the purposes of the LEC Act, s 39(2)) that s 39(2) must be held, as a matter of statutory construction, to operate. For the reasons that I have earlier given, I do not think that it is possible or open to construe the reference in s 39(2) to "the appeal" (that is to be heard and disposed of, by the Court) otherwise than as a reference to the true nature of the proceedings before it, ie in the present case, the modification application. In particular, the reference cannot be construed as a reference to the development application which was determined by the Court's decision in 1999 granting development consent.

It is for the foregoing reasons that I do not think the decision in Connery governs the adjudication of the present question.

My answer to this crucial question means that it is not strictly necessary to answer the remaining questions. However, since they were fully argued, I shall nonetheless answer them, albeit briefly, on the assumption that the questions are not confined to the case of a modification application to modify a development consent granted by the Court. (iii.) QUESTION 3: Can the Court exercise the power of the Roads and Traffic Authority delegated to the Council by instrument of delegation dated 26 October 2001 (the Delegation) to create a works zone pursuant to the aforesaid Act when the Council's exercise of the power in accordance with the delegation is subject to an appeal to a Regional Traffic Committee?

I did not understand the Council's argument to go so far as to submit that the relevant statutory power conferred by the Roads legislation and vested in the Council by virtue of the delegation from the Roads and Traffic Authority was incapable of being available to the Court in an appropriate case by virtue of the operation of the LEC Act, s 39(2).

I take it that the deliberate restraint in the Council's submissions recognises the extent to which recent decisions in this Court (Connery and Gibson v Mosman Municipal Council (2001) 114 LGERA 416) have applied s 39(2) so as to render available to the Court the powers vested by s 138 of the Roads Act 1993 in a local council, qua road authority.

In these circumstances, I am prepared to assume that in an appropriate case s 39(2) may render available to this Court in hearing and disposing of an appeal, various statutory powers vested in a council under the Roads legislation.

Rather, the Council's argument focuses upon the express limitations on the relevant delegated power in the present case which are contained in pars 6 to 9 inclusive of Schedule 4 to the relevant Delegation that I have earlier recited (see par 16) in support of its submission that where these limitations operate, the Court's capacity to exercise the relevant statutory power is either curtailed or at least qualified by such limitations.

In my judgment, the existence and operation of the limitations on the statutory power delegated to the Council, do not have the effect that the power otherwise available to the Court by force of the LEC Act, s 39(2) is thereby curtailed.

Rather, in such circumstances, the conventional approach to the interpretation and application of s 39(2) is that, except where the Court's powers are expressly enlarged (eg by s 39(6) and (6A)), the Court has the same powers (including the same duties and limitations on those powers) as are vested in the Council.

Since there is nothing in the present case that would justify or require any departure from that conventional approach, I would accordingly answer this question in the affirmative but only in the sense that in exercising the available power, the Court would be bound to observe all of the limitations that are imposed on the power vested in the Council by virtue of the Delegation. (iv.) QUESTION 4: If the answer to question 3 is yes, is the Land and Environment Court Act constrained by the terms of that delegation?

The Applicant properly concedes that this question, which is related to question 3, must be also answered affirmatively consistent with the affirmative answer to that question.

For similar reasons, that led me to answer question 3 in the affirmative, I would answer this question in the affirmative. (v.) QUESTION 5: If the answer to question 3 is yes, does the Land and Environment Court Act s 39(5) operate to extinguish the right of appeal conferred by the said Delegation?

The Applicant's submission founded upon the LEC Act, s 39(5) is to the effect that if the Court were to exercise the relevant statutory power conferred by the Roads legislation by creating the "Works Zone" the resultant decision would be deemed to be the final decision of the Council with the legal consequence that the right of appeal conferred by (or expressly recognised by) the Instrument of Delegation would thereby be extinguished. Section 39(5) provides as follows: (1) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

In my judgment, this submission misapprehends the nature of the limitations imposed by the Instrument of Delegation and in particular the nature of the right of appeal to the Chairperson of the Regional Traffic Committee thereby conferred, insofar as it necessarily contemplates and is premised upon a decision by the Court, made otherwise than in accordance with the limitations imposed upon the delegated power.

Consistent with my answer to question 4 (which was conceded by the Applicant), the relevant statutory power available to the Court by virtue of the LEC Act, s 39(2) cannot validly be exercised while the right of appeal has been exercised and where it has been exercised, otherwise than in accordance with the decision on appeal, by the Chairperson of the Regional Traffic Committee (vide pars 8 and 9 of Schedule 4 to the Instrument of Delegation).

However, where the appeal right to the Regional Traffic Committee is not invoked, there is no impediment on the exercise of the statutory power and its exercise is not subject to any appeal right.

Accordingly, I would answer this question in the negative. E. CONCLUSIONS AND ORDERS

For all the foregoing reasons, I determine that the five questions of law be answered as follows: Q1. Does the power to create a work zone arise under the Road Transport (Safety and Traffic Management) Act 1999? Answer: Yes Q2. In the light of the nature of the present proceedings is the power vested in the Council as referred in question 3 available to the Court pursuant to s 39(2) of the Land and Environment Court Act? Answer: No Q3. Can the Court exercise the power of the Roads and Traffic Authority delegated to the Council by instrument of delegation dated 26 October 2001 (the Delegation) to create a works zone pursuant to the aforesaid Act when the Council's exercise of the power in accordance with the delegation is subject to an appeal to a Regional Traffic Committee? Answer: In view of any answer to Question 2 this question does not arise - however, but for the answer to question 2, the answer would be yes -but subject to all of the limitations imposed upon the Council by the delegation. Q4. If the answer to question 3 is yes, is the Land and Environment Court Act constrained by the terms of that delegation? Answer: Yes Q5. If the answer to question 3 is yes, does the Land and Environment Court Act s 39(5) operate to extinguish the right of appeal conferred by the said Delegation? Answer: No

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CITATION : Makram Constructions Pty Limited v North Sydney Council [2002] NSWLEC 4 APPLICANT: Makram Constructions Pty Limited PARTIES : RESPONDENT: North Sydney Council FILE NUMBER(S) : 10204 of 1999 CORAM: Bignold J KEY ISSUES: Question of Law :- Preliminary questions in modification application to modify development consent granted by the Court. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96 Land and Environment Court Act 1979, s 39(2) Allen Commercial Constructions Pty Ltd v North Sydney Council (1970) 123 CLR 490; Coalcliff Community Association Inc v Minister for rban Affairs and Planning (1999) 106 LGERA 243; CASES CITED: Connery v Manly Council (1999) 105 LEGRA 451; Gibson v Mosman Municipal Council (2001) 114 LGERA 416; McDougall v Warringah Shire Council (1993) 80 LGERA 151; North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 437 DATES OF HEARING: 18 January 2002 EX TEMPORE JUDGMENT DATE : 01/18/2002

(1999) 106 LGERA 243

(2001) 114 LGERA 416

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