May v Northern Beaches Council

Court of Appeal (NSW)|2023-08-28|Before: Meagher JA, Payne JA, Robson J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

THE COURT: Mr Stephen May seeks leave to appeal against an interlocutory decision of Robson J in the Land and Environment Court to summarily dismiss judicial review proceedings commenced by Mr May in that Court's Class 4 jurisdiction: May v Northern Beaches Council (No 2) [2023] NSWLEC 7.

Primary judgment

The primary judgment was delivered on 14 February 2023. The primary judge held that, by r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), judicial review proceedings which seek to overturn a decision must be brought within three months of when that decision was made.
The applicant brought his review proceedings more than three years after the original consent, the first modification decision and the decision to grant a construction certificate. Despite urging by the primary judge, the applicant refused to seek an extension of time to proceed. The primary judge considered whether the Court, of its own motion, should grant an extension. His Honour found that it should not, since the applicant had been aware of the decisions for some time. Construction was already underway. The second respondent had incurred considerable costs.
On the contingent hypothesis that the challenges to the consent, first modification decision and issue of the construction certificate had been commenced within time, the primary judge found that those decisions were not affected by jurisdictional error.
The applicant's challenge to the second modification decision was brought within time. The primary judge found that this challenge failed. The substance of the second modification decision was to allow the second respondent to replace sandstone cladding with zinc cladding. The applicant alleged that the first respondent had "overlooked" his objection and wrongly concluded that there was no change in the height of the development and that the change in cladding involved "minimal environmental impact". The primary judge found that the first respondent dealt with the applicant's objection and there was no error in how it satisfied itself the modification involved minimal environmental impact. The primary judge concluded that the applicant's claim was really an attempt at merits review.
The applicant also maintained that some of the works carried out by the second respondent were "illegal". He sought relief in the form of civil enforcement. The primary judge found that this aspect of the claim was not properly pleaded. Though his Honour struck out the applicant's summons in whole, the Court granted the applicant leave to replead the civil enforcement aspect of his claim. That is, the applicant has been granted leave to continue the civil enforcement aspect of his claim in the Land and Environment Court, subject to complying with the applicable rules of pleading.

Leave to appeal

On 26 May 2023, the applicant filed a summons seeking leave to appeal against the whole of the primary judgment and a draft notice of appeal. The applicant seeks an extension of time, as his summons was filed more than three months after the date of the primary judgment.
A number of matters should be noted about the application for leave. The applicant does not challenge the legal test applied by the primary judge in striking out his claim. Secondly, there were numerous versions of the applicant's written submissions, including a version handed up on the day of the oral hearing making a number of factual claims which appear to lack any evidential support. We have nonetheless read and taken into account all of that material. Thirdly, there was an important concession made by the applicant in his oral address: APPLICANT: Something, your Honour. Just to narrow the issues for your Honours, it's conceded that there's no requirement on council for the s 96 or the 4.55 modification. That's conceded by myself, your Honour. MEAGHER JA: What is the substance of what you're conceding? APPLICANT: I'm conceding the fact that it's not required. You can have any height at all under either a s 96 modification or a 4.55, the height is irrelevant. Council, if they wanted to, they could approve a 15‑storey building on there, and the objections would be irrelevant. It's only in relation to the DA that the local environmental plan comes into effect, your Honour.
We will treat this as a concession that, in granting modifications to a development consent (such modifications were governed at the time by s 96 of the Environmental Planning and Assessment Act 1979 (NSW)), the applicant does not challenge the first respondent's decision to approve the modification. Fourthly, the only relevant issue before the primary judge was whether the four decisions identified at [4] above were affected by jurisdictional error. Despite the contents of the applicant's submissions, the merits of the underlying decisions were not properly before the primary judge. Much less are the merits of the underlying decisions relevant to the applicant's case in this Court seeking leave to appeal.
The applicant's submissions do not address the legal and factual issues necessary to advance an argument that his claims of jurisdictional error in the making of any of the four decisions should be allowed to proceed. In his draft notice of appeal, the applicant advances five grounds. Doing the best we can with the applicant's material, including the draft notice of appeal, all submissions and the affidavits filed after the hearing before the primary judge (which, despite the fact it contains a great deal of material which is irrelevant to any issue before us, we take into account on the question of leave), the applicant appears to rely upon on the proposed grounds of appeal in the notice of appeal as bases for a grant of leave.
We will address each of those proposed grounds in turn on the basis that we were deciding the question whether leave should be granted. We will then turn to consider the application to extend the time for filing the summons seeking that leave.

The stay of the civil enforcement proceedings (grounds 1 and 4)

Ground 1 complains that "leave was obtained to appeal against the non-compliances with the Development Application and Construction Certificate and was then suspended after being notified of this appeal". Ground 4 complains of "non-compliance with the works as constructed […] This appeal has now been tied into the orders that were handed down".
By these grounds, the applicant appears to complain about how the primary judge dealt with the civil enforcement proceedings. He appears to believe that the civil enforcement proceedings have been dismissed, after a grant of "leave". This is incorrect.
The civil enforcement claims remain on foot, if the applicant is able properly to plead those claims. We express no view about whether he will ultimately be able successfully to formulate any such claim. The proceedings below have merely been held in abeyance pending the outcome of Mr May's application for leave to appeal.
Appeal grounds 1 and 4 conflate this administrative step with a revocation of leave to replead the civil enforcement part of Mr May's claims. Grounds 1 and 4 do not properly allege any relevant error in the Court's management of the proceedings below, let alone one which would warrant leave to appeal. Leave to appeal should be refused on grounds 1 and 4.

UCPR r 59.10 (ground 2)

The applicant submitted in writing that the "key issue" in his application for leave is "whether an appeal can be commenced at any time under the UCPR 59.10". Ground 2 of his draft notice concerns the effect of UCPR r 59.10. We understand these arguments as a complaint that the primary judge's approach to r 59.10 raised an arguable issue of principle, or a matter of public importance, such that leave should be granted.
UCPR r 59.10 is in the following terms: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following - (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
Before the primary judge and in his submissions to this Court, the applicant maintained that no aspect of his application for judicial review was barred by this rule. That, he said, was because he was "not looking to declare the consent invalid", meaning the setting aside of a decision was not required, within the meaning of r 59.10(5). In that case, he submitted, the time bar in r 59.10(1) was not applicable by reason of subrule (5).
This argument must be rejected. The exclusion in r 59.10(5) turns on the substance of the claim. It is engaged "if the grounds on which the orders are sought do not include matters that, if made out, would have the consequence that the decision is one that should be set aside": Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 at [49]-[51] per Campbell AJA. The exclusion in r 59.10(5) is not engaged by declarations which have the inevitable consequence that a decision is invalid: Katter at [51].
A declaration of invalidity usually flows from a finding of jurisdictional error. That is because a decision that involves jurisdictional error is a decision that "lacks legal foundation and is properly regarded, in law, as no decision at all": Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [51]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24].
In applications for judicial review of a development consent, this Court has held that a decision to grant development consent should in consequence of the finding of jurisdictional error be quashed: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [36]-[40] per Basten JA (Leeming JA and Preston CJ of LEC agreeing).
By summons filed in the Land and Environment Court on 28 January 2022, the applicant sought: A Declaration that Jurisdictional Errors and Planning Laws have been breached in determining of the Initial DA determined on the 29/09/2017 and the section 96 application approved on the 4/7/2018 and the 4.56 Modification approved on the 27/09/2021
If jurisdictional error had been established, the consequence would be that the decision affected by that error is one that should be set aside. The invalidity of the particular decisions said to be affected by jurisdictional error was the inevitable consequence of the declaratory relief the applicant sought. The applicant's judicial review application was therefore not protected by the exception in r 59.10(5).
The primary judge was correct that the application for review of the consent decision, the first modification and the construction certificate was brought out of time. Nothing in how the primary judge dealt with r 59.10 justifies a grant of leave. We would refuse leave to appeal on proposed ground 2.

The merits of the applicant's review application (ground 3)

By ground 3, the applicant asserts that the primary judge was wrong to conclude that his judicial review claims were so untenable they could not possibly succeed. We will address the applicant's challenge on this ground on the contingent hypothesis that his challenge to the decision to grant development consent, the first modification decision and the decision to issue the construction certificate was, contrary to the primary judge's finding, made within time.
An essential prerequisite for a grant of leave to appeal is that the Court be "persuaded that the decision appealed from is attended with sufficient doubt to warrant its reconsideration on appeal": Sharpe v Heywood [2013] NSWCA 192 at [34]. Nothing in the applicant's submissions before this Court gives rise to any doubt about the conclusions of the primary judge. For a recent exposition of jurisdictional error in a related area see McMillan v Taylor [2023] NSWCA 183. The applicant did not challenge the legal basis of the primary judge's findings that no challenged decision was arguably affected by jurisdictional error.
To the extent the applicant maintains each of the arguments he made at first instance, nothing in the primary judge's approach to those arguments warrants a grant of leave. The primary judge's conclusions at [106]-[125] were correct. We will nevertheless address in greater detail the three matters raised by the applicant in his oral submissions.

Clause 4.3 of the Pittwater Local Environmental Plan 2014

The applicant's principal focus in written and oral submissions was that consent was granted to a development that "breached" the 10-metre height standard in cl 4.3 of the Pittwater Local Environmental Plan 2014. The applicant submitted that this amounted to jurisdictional error. The contention that the primary judge erred in failing to conclude that there was a reasonable cause of action that the grant of development consent was affected by jurisdictional error must be rejected for the following reasons: 1. Development consent N0476/16 was granted based on, relevantly, architectural drawings DA-20-00 and DA-30-00. Those architectural drawings showed an approved height of 8.5 metres. 2. Development above the height of 8.5 metres was approved as part of the first modification decision in 2018: Mod2018/0057. In this Court, the applicant did not challenge the making of the first modification decision (at least so far as the height of the building was concerned). There was no challenge to the primary judge's conclusion that the only constraints on the exercise of the power to modify a development consent are in s 4.55 and s 4.56 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), applying Intrapac Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 83 at [38]. Those constraints do not include a height standard in a local environmental plan such as the Pittwater Local Environment Plan. 3. Even if, contrary to the fact, the development consent had approved a building to a height in excess of the height standard in the Pittwater Local Environment Plan, this would not amount to jurisdictional error: El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78. 4. No different conclusion arises by reason of consideration of the assertions contained in the applicant's affidavit dated 7 July 2023, which plainly was not before the primary judge. Even if the applicant is correct that the contents of a statement of environmental effects earlier obtained and submitted by the second respondent stated that "the living room extends to a maximum height of 9.9 metres" and that the second respondent at some point "simply removed the 10mtr line [shown in an earlier version of the architectural plan], raised the floor level and stated that it is now fully complaint with the 8.5mtr height requirement", no error was shown in the primary judge's conclusion that no arguable jurisdictional error affected the decision to grant the development consent. As the primary judge found at [110], at the time of the grant of the Consent (see (1) above), the height of the proposed development was within the 8.5 metre height limit and fully compliant with the building development standard.

Section 96 (now 4.55) of the EP&A Act

The applicant complained, in writing, that, under s 96(1A) (now s 4.55(1A)) of the EP&A Act, the first respondent was not entitled to make the first and second modification decisions, because those modifications did not involve "minimal environmental impact". It is unclear, following the applicant's concession recorded at [11] above, whether this complaint is maintained.
There is no reason to doubt the conclusions of the primary judge. The applicant's submissions do not demonstrate the existence of any arguable jurisdictional error. Those submissions are, in form and in substance, impermissible complaints about the merits. No basis has been shown for leave to appeal to be granted.

Clause 98E of the Environmental Planning and Assessment Regulation

Although mentioned only briefly in writing, the applicant in oral submissions submitted that, in granting the consent, it was jurisdictional error for the first respondent to ignore the operation of clause 98E of the Environmental Planning and Assessment Regulation 2000 (NSW) (since repealed).
Clause 98E of the Environmental Planning and Assessment Regulation provides: 98E Condition relating to shoring and adequacy of adjoining property (1) For the purposes of section 4.17(11) of the Act, it is a prescribed condition of development consent that if the development involves an excavation that extends below the level of the base of the footings of a building, structure or work (including any structure or work within a road or rail corridor) on adjoining land, the person having the benefit of the development consent must, at the person's own expense - (a) protect and support the building, structure or work from possible damage from the excavation, and (b) where necessary, underpin the building, structure or work to prevent any such damage. (2) The condition referred to in subclause (1) does not apply if the person having the benefit of the development consent owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying.
The applicant asserted that "nothing was done" to comply with this regulation. Assuming, without deciding, that non-compliance with cl 98E by the person who has the "benefit of the development consent" was arguable, this might perhaps be relevant to some complaint about compliance, but has no bearing on the making of any relevant decision under challenge in the judicial review proceedings.
The applicant submitted to this Court that the primary judge failed to address his arguments about cl 98E. No doubt that is because cl 98E is not relevant to the judicial review proceedings he commenced. No basis has been shown for leave to be granted.

Clause 55 of the Environmental Planning and Assessment Regulation

It was submitted that, in granting the original consent, the first respondent fell into jurisdictional error by non-compliance with cl 55 of the Environmental Planning and Assessment Regulation.
Clause 55 provides: 55 What is the procedure for amending a development application? (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development. (3) If the development application is for - (a) development for which concurrence is required, as referred to in section 4.13 of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.
The applicant submitted that this clause required all amendments to development applications to be in writing. He asserted that the development application sought approval for a building of about 10 metres. Development consent, however, was granted for a building of 8.5 metres. The applicant complained that there was no itemised writing seeking this amendment.
The primary judge found that, after discussions with the first respondent, the second respondent submitted modified plans. These modified plans clearly amounted to writing that itemised the amendments sought. Even if the applicant is right that the amendment was not sought in writing, failure to comply with cl 55 does not give rise to jurisdictional error. Clause 55 obliges a party seeking variation to lodge their application in a particular way and with particular details. It does not constrain the decision-making of those who grant consent.
Nothing in the applicant's arguments about cl 55 identifies any issue that would warrant reconsideration of the primary judgment.

Conclusion on ground 3

No reasonably arguable issue of principle, issue of public interest or manifest injustice has been shown in the decision of the primary judge. Leave to appeal on ground 3 should be refused.

Use of strike out application as a basis for obtaining a costs order (ground 5)

The subject matter of ground 5 of the proposed notice of appeal is an allegation that the respondents "are trying to use a strike out application when I was successful on a number of grounds as a basis for a substantial cost order in a bid to prevent my right as a natural person to progress this matter to conclusion".
No arguable basis for this claim was established. Leave to appeal on ground 5 must be refused.

Extension of time

As the summons was filed more than three months after the decision, an extension of time is required. It is unnecessary in the circumstances of this case to resolve a factual dispute about whether sufficient service was effected by the applicant of his draft notice of appeal.
In circumstances where leave would be refused on each of the applicant's proposed grounds of appeal, the application for an extension of time in which to seek that leave should be refused.

Notice of motion to stay payment of costs

There is one remaining issue. By notice of motion filed 27 July 2023, the applicant seeks a stay of a costs order made in favour of the respondents by Robson J on 12 July 2023 in May v Northern Beaches Council [2023] NSWLEC 72, pending the outcome of the application for leave.
The stay application lacks utility in circumstances where the costs order was not made payable forthwith and the second respondent has not made any application for an order that the costs be paid forthwith. In those circumstances r 42.7(2) of the Uniform Civil Procedure Rules 2005 (NSW) operates to postpone the enforceability of the costs order until the conclusion of the proceedings (or the appeal): Petar v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 at [49].
In so far as the application for a stay relates to this application for leave to appeal, as the application for leave must be dismissed, the stay application should also be dismissed.

Conclusion and orders

For the foregoing reasons, the orders of the Court are: 1. Extension of time to seek leave to appeal the primary judgment refused. 2. Summons seeking leave to appeal dismissed. 3. Applicant to pay the second respondent's costs of the application for leave to appeal. 4. Notice of motion filed by the applicant on 27 July 2023 dismissed. 5. Applicant to pay the second respondent's costs of the notice of motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2023

28 February 2018) Environmental Planning and Assessment Regulation 2000(NSW)cl 55, cl

Environmental Planning and Assessment Regulation 2000(NSW)

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