Malesev v Strati

EX TEMPORE Judgment 1This hearing requires determination of a procedural dispute arising under Pt 59 of the Uniform Civil Procedure Rules 2005 (the UCPR). 2Steve Malesev, the Applicant, seeks judicial review of a decision by Sutherland Shire Council (the Council), the Second Respondent, to grant development consent for the erection of a new dwelling on land at Woolooware (the Land). That decision was made on 5 November 2013. The Land is owned by Domenico Strati, the First Respondent. 3The proceedings were commenced by summons prepared in accordance with the provisions of UCPR r 59.3. Orders sought by Mr Malesev include a declaration that the Council's decision to grant development consent was invalid and an order restraining Mr Strati from acting upon that consent. The grounds upon which those orders are sought, as stated in the summons, are that when making its decision to grant the impugned development consent, the Council failed to take into account a relevant consideration; that it failed to consider a submission made to it in respect of Mr Strati's development application and that it failed to give notice of that application as it was required to do in accordance with an adopted development control plan. 4Mr Strati has filed and served his response to the summons, denying the invalidity of the Council's conduct in determining his development application: UCPR r 59.6. The Council has filed a submitting appearance in terms that are sanctioned by UCPR r 6.11(1). 5As r 59.9(2) of the UCPR allows, on 28 February 2014 Mr Malesev served the Council with a notice requiring it to provide both a copy of the impugned decision to grant development consent in respect of the Land and also a statement of reasons for that decision. The Council has not complied with that notice. 6The proceedings first came before me as List Judge on 28 February last. On that date the parties provided short minutes of orders that I was requested to make. Those short minutes were signed by the solicitors for each party, including the solicitor acting for the Council. The first order proposed in that document was in the following terms: "1. The Second Respondent provides its response to the Applicant's Part 59.9 Notice to Public Authority dated 28 February 2014 by 14 March 2014." As requested by the parties, I made an order in those terms. I also gave other directions then sought by the parties and listed the matter for further directions on 28 March 2014. 7Notwithstanding the participation of the Council's solicitor at the directions hearing on 28 February, no notice of appearance on behalf of the Council had been filed at that time. Its submitting notice of appearance was not filed until 26 March 2014. Despite the terms of that submitting appearance, it was represented by counsel when the matter was next listed on 28 March 2014. At that time and at the request of the Council, Pain J listed for determination the following question: "Whether the Second Respondent should be directed to provide its response to the Applicant's Pt 59.9 UCPR Notice." 8As I understand the submission of the Council, it contends that having filed a submitting appearance, it is not permitted to take any step in the proceedings except by leave of the Court. As no leave has been sought or given requiring it to respond to the r 59.9(2) Notice, it is precluded from responding to it. In so contending, the Council relies upon UCPR r 6.11 which provides: "6.11 Defendant may submit to judgment by notice of appearance (1) A defendant who intends to take no active part in proceedings may include in the defendant's notice of appearance a statement to the effect that the defendant submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made, to which may be added the words, 'save as to costs'. (2) Except by leave of the court, a defendant who has filed a notice of appearance containing a statement referred to in subrule (1) may not file a defence or affidavit or take any other step in the proceedings." 9I do not accept the Council's submissions. First, those submissions do not adequately address the operation of Order 1 made by me on 28 February last. No application to vary or set aside that order has been made. Obedience to that order is said to be avoided by the filing of a submitting appearance. That, so it is submitted, is the consequence of r 6.11(2) which proscribes the taking of any step in the proceedings once such an appearance has been filed. The Council contends that the provision of the documents required by Order 1 is akin to the filing of an affidavit or defence or is otherwise a "step in the proceedings." 10Assuming for present purposes that r 6.11(2) operates in the manner for which the Council contends, I would have thought that the Order made by me on 28 February, requiring that the Council respond to Mr Malesev's notice, engaged the exception expressed in the subrule. Although the filing of the Council's submitting appearance occurred subsequent to the making of the Order, any reasonable understanding of the enduring obligation imposed by it while ever it remained extant, would surely result in it operating as "leave" within the meaning of the subrule. 11Moreover, how r 6.11(2) could operate to set at nought the obligation imposed by an order made in the proceedings was not adequately explained. The Council was in default of the Order to which it had consented prior to the filing of its submitting appearance. The obligation to comply with the substance of the Order remained until it was set aside by further order. That has not occurred. 12However, independently of the Order made on 28 February last, the provisions of Pt 59 and their application to proceedings for judicial review in this Court provide a further basis upon which to reject the Council's submission. Part 59 was added to the UCPR in March 2013. It applies only to proceedings for judicial review in the supervisory jurisdiction of the Supreme Court and to proceedings for judicial review brought in the Class 4 or Class 8 jurisdiction of this Court. The provisions of that Part impose particular procedural requirements for the commencement and conduct of judicial review proceedings. Rule 59.9 provides: "59.9 Special procedure where public authority is defendant (1) This rule applies to proceedings for judicial review in which relief is sought in relation to a decision of a public authority. (2) The plaintiff may, within 21 days of commencing proceedings against a public authority ... serve on the public authority a notice requiring the public authority to provide to the plaintiff: (a) a copy of the decision, and (b) a statement of reasons for the decision. (3) A statement of reasons for the decision must: (a) set out findings on material questions of fact, and (b) refer to the evidence or other material on which those findings were based, and (c) explain why the decision was made. (4) If: (a) the public authority does not comply with a notice under this rule within 14 days of service, or (b) the plaintiff was not served a notice within the time prescribed by subrule (2), the plaintiff may apply to the court for an order that the public authority provide the plaintiff with a copy of the decision and a statement of reasons for the decision." Although not identified in the question posed for determination, the power of the Court to make an order for provision of a copy of the decision and a statement of reasons for that decision are found in subrule (4). 13The introduction of Pt 59 into the UCPR as a special set of rules directed to the conduct of judicial review proceedings, founds a proper basis upon which to apply the provisions of the Part in a manner that gives them an overriding effect in the event of inconsistency with a provision of another rule that is of general application. Relevantly, r 59.9 has an important role to play in the scheme of Pt 59 as a whole. 14Fundamental to the judicial review of a decision made by a public authority is knowing, with precision, the terms of that decision and the reasons for it. Often, the statute under which the decision of a public authority is made does not require the provision of reasons for that decision. The determination by a consent authority of an application for development consent under Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) is a case in point. In the absence of statutory provisions requiring a statement of reasons, there is no general law duty on the part of a public authority to provide reasons for its decisions (Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656). Rule 59.9 provides a mechanism for that general principle to be overridden once judicial review proceedings have been commenced. 15Further, the circumstance that Pt 59 is expressed to apply to judicial review proceedings in this Court is significant. The majority of proceedings commenced in this Court for judicial review are directed to decisions of a consent authority exercising functions under Pt 4 of the EPA Act. That position pertained for many years prior to the introduction of Pt 59 into the UCPR. Also well understood in legal discourse directed to such proceedings were the observations of Gaudron and Gummow JJ in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [46] to the effect that when a decision of a local council is challenged by way of judicial review, it is generally inappropriate for that body to be a protagonist in the proceedings. The observations of their Honours have been repeated in decisions both of this Court and in the Court of Appeal. No doubt they were a factor informing the decision of the Council to file a submitting appearance in these proceedings. Importantly, both the nature of challenges brought in this Court by way of judicial review and the observations in cases directed to the active participation of consent authorities in proceedings of that kind were well known when Pt 59 was introduced to the UCPR. 16Considered in this context, it cannot be that the provisions of Pt 59 should be interpreted as requiring a council, whose decision is challenged in judicial review proceedings, to produce a copy of the decision under challenge and the reasons for that decision only if that council takes the position of a protagonist in the proceedings. So to construe the provision would be to deny the beneficial effect that r 59.9 has in assisting the resolution of a dispute as to the lawfulness of a decision by a public authority. Denial of reasons when a public authority files a submitting appearance would work an injustice both to the applicant seeking to challenge the decision and any party having an interest in sustaining the validity of the decision. The injustice to the former is obvious: the injustice to the latter in the absence of reasons is that it is left to contemplate the defence of a decision that is not its own and the reasons for which are undisclosed. 17An interpretation that gives effect to the beneficial nature of the rule is to be preferred. That would require the public authority to provide a copy of the decision and its statement of reasons unless that public authority can establish a proper basis upon which it should not be required to do so, whatever position it may take in the conduct of the proceedings. Clearly, r 59.9(4) affords a discretion to the Court to decline an order requiring the provision of a statement of reasons in appropriate circumstances. 18It is also to be noticed that r 4.3 of the Land and Environment Court Rules 2007 (NSW) contains provisions in similar but not identical terms to r 59.9 of the UCPR. In respect of the former, Biscoe J observed in Shellharbour City Council v Minister for Planning [2011] NSWLEC 59 at [13]: "The purposes of these requirements include: to enable the existence of legal error made by the decision-maker to be more readily perceived than otherwise might be the case; and to engender confidence in the community that the decision-maker has gone about their task lawfully .... Therefore, relevant documents and reasons may inform an applicant's case." Observations to similar effect were made by Sheahan J in Hooper v Port Stephens Council [2010] NSWLEC 41 at [10] and by Pepper J in Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 105 at [43]. More recently Biscoe J has reiterated those same observations when considering the application of r 59.9 (Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 at [23]-[24]). Those observations are apt to be applied in giving effect to the provision of documents sought in Mr Malesev's r 59.9(2) notice. 19As earlier recorded, the Council has relied upon its submitting appearance as the basis upon which it should not be required to provide a statement of reasons, having regard to the effect given to such an appearance by UCPR r 6.11(2). Implicit in that submission is that the latter rule operates as a qualification upon or exception to the provisions of r 59.9. 20Apart from the need to give effect to the provisions of Pt 59 in the manner earlier discussed, I do not discern there to be the need to interpret r 6.11(2) in the manner for which the Council contends. The subrule is clearly directed to denying a party who has filed a submitting appearance the right to do anything further in the proceedings, without leave, that would have the effect of challenging the position taken by a party who is a protagonist in the proceedings (Filter v Public Trustee [2007] NSWSC 1487 at [19]; Sahab Holdings Pty Ltd v Registrar General and Castle Constructions Pty Ltd [2009] NSWSC 1143; 75 NSWLR 629 at [79]). So to do would be a "step in the proceedings". The requirement to provide a statement of reasons does not involve a step equivalent to that challenging the position of a protagonist in the proceedings. It is an objective requirement that is independent of the position taken by any party to those proceedings. 21There are two additional bases upon which the Council contends that leave should not be given or a further order made, obliging it to provide the documents sought in the r 59.9 notice. First, it submits that as it is no longer an active party in the proceedings, a statement of reasons could not be tendered as an admission against the Council. The foundation for that submission was not articulated. I do not accept the submission. 22Second, the Council sought to tender evidence of another development consent granted on 20 June (some six days ago) for the erection of a new dwelling on the Land. This circumstance, so it was submitted, is likely to result in the Council's effort of providing reasons for the impugned decision being "a waste of resources" because of a "real prospect that the challenged consent will be surrendered". However, the relevance of that evidence to the present question has not been demonstrated. 23There is no restriction on the number of development consents that can be granted for a given parcel of land. While ever those consents are current, in that they have not lapsed, a landowner may elect which of them is to be implemented. The fact that another development consent was granted on 20 June does not deny the right of Mr Strati to elect to implement the impugned consent so long as that consent remains current and is not determined by this Court to be invalid. Moreover, Mr Strati was represented at the hearing before me by his solicitor. No indication was given on his behalf that he intended to surrender the impugned consent (cf s 80A(1)(b) of the EPA Act). 24I am not persuaded by either of these submissions that they provide a proper basis upon which to deny Mr Malesev the documents he seeks. 25In summary, the Council has advanced no cogent reason why it should not be required to produce a copy of its November decision to grant development consent for the erection of a new dwelling on the Land, nor be required to produce a statement of reasons for that decision. Importantly, it has not advanced any sound basis upon which the Order made by me on 28 February last requiring compliance with the notice given by Mr Malesev under Pt 59.9(2) should not be obeyed. 26For these reasons, the question posed for determination at [7] is answered: "Yes, the Council should be so directed." 27However, lest there be any doubt as to its obligation, I propose to exercise the power available under r 59.9(4) to order the Council to provide the documents sought. 28The orders that I make are as follows: (1)Order that the Council provide to the Applicant and to the First Respondent by 5.00pm on 17 July 2014 - (a)a copy of the decision made by it on 5 November 2013 determining development application DA 13/0416 by the grant of development consent for the erection of a new dwelling at 5 Church Street Woolooware; and (b)a statement of reasons for that decision, prepared in accordance with the provisions of r 59.9(3) of the Uniform Civil Procedure Rules. (2)The Council must pay the Applicant's costs of the application for this order. (3)Stand over the proceedings to Friday 18 July 2014 for directions. (4)Exhibits may be returned.