Mirvac Projects Pty Ltd v Ku-Ring-Gai Council & Anor

Land and Environment Court (NSW)|2007-05-02|Before: Talbot J, Jagot J

CITATION : Mirvac Projects Pty Ltd v Ku-Ring-Gai Council & Anor [2007] NSWLEC 245 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Mirvac Projects Pty Ltd

PARTIES : FIRST RESPONDENT Ku-Ring-Gai Council

KEY ISSUES: Development Consent :- Challenge to validity in Class 1 proceedings to modify the consent Development Consent - status pending finding whether granted in breach of EPA Act.

Environmental Planning and Assesment Act 1979 s 81, s 96, s101, s 123, s124 LEGISLATION CITED: Land and Environment Court Act 1979 s 20(2)(c), State Environmental Planning Policiy No. 1 - Development Standards (NSW) cl 25 I

Calvin v Carr and Ors [1980] AC 574; Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121; F Hannan v Electricity Commission of NSW [No.3] (1985) 66 LGRA 306; Hannan and Swadling and Anor v Sutherland Shire Council and Ors (1994) 82 LGERA 431; Helman v Byron Shire Council (1995) 87 LGERA 349; Hollis v Shellharbour City Council [2002] NSWLEC 83; Kindimindi Investments Pty Ltd v Lane Cove Council and Anor [2005] NSWLEC 398; CASES CITED: Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) HCA 11; Mirvac Projects Pty v Ku-Ring-Gai Council [2007] NSWLEC 113; MLC Properties & Anor v Camden Council and Ors (2000) 102 FCR 517; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; R v Hickman and Ors; Ex-parte Fox and Clinton (1945) 70 CLR 598; Woolworths Limited v Pallas Newco (2004) 61 NSWLR 607

APPLICANT Mr Robertson SC Ms L.M Byrne (Barrister) SOLICITORS Lindsay Taylor Lawyers

LEGAL REPRESENTATIVES: FIRST RESPONDENT Mr Marinkowitz (Solicitor) SOLICITORS DLA Phillips Fox

SECOND RESPONDENT Mr N Perram SC SOLICITORS Woolf Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10023 of 2007 Mirvac Projects Pty Ltd v Ku-Ring-Gai Council

REASONS FOR INTERLOCUTORY EX TEMPORE JUDGMENT 1 Talbot J: In an application Class 1 filed in Court on 11 January 2007, the applicant seeks approval to an application to modify development consent DA 1388/04 as previously modified in respect of a multi-unit development at 10 Marian Street, Killara. 2 The original development consent was granted by the Council on the 14 June 2005 and was the subject of a Notice of Determination dated 22 June 2005. The consent has already been modified on 5 separate occasions. The present application involves changes to basement car parking, minor changes to ground level terraces and reconfiguration of driveways areas and provision of a fire hydrant. 3 The Council has raised issues in relation to the extent of deep soil land scaping and the consequential impact on streetscape and the amenity of adjoining properties by reason of reduced visual privacy and increased building dominance. 4 The Second Respondent was joined by order made by Jagot J on 20 February 2007 (Mirvac Projects Pty Ltd v Ku-Ring-Gai Council [2007] NSWLEC 113) on the basis that he intended to raise 3 additional issues namely:- 1. Whether the consent authority and the Court exercising the functions of the consent authority to grant an approval to a modification application has the necessary power to grant the approval where the building works the subject of the application have already been constructed. 2. Whether the development as modified will be substantially the same development as that originally approved. 3. Whether an amended driveway layout will have a significant adverse impact on the adjoining property of the Second Respondent. 5 At the commencement of the hearing the Second Respondent represented by Mr Perram abandoned the second issue and sought leave to rely on the following additional issues:- DA 1388/04 void 1A That Development Consent No. DA 1388/04 is void because Landscape Finishes Plan La-0801 Rev b01 clearly shows that clause 25 I(2)(c) of the KPSO was breached. Council has no authority outside SEPP 1 to grant consent in that circumstance so granting the consent was an infringement of an inviolable restraint .

SEPP 1 dispensation ought not be allowed 1B Whether the Court should decline to grant the modification on the basis that the public interest requires that a failure to obtain a SEPP 1 dispensation from clause 25 I(2)(c) ought not to be allowed to be cured by a modification application. 6 Some further peripheral issues are raised which need not presently concern the Court. 7 The Second Respondent recognises that it requires leave to rely on issues 1A and 1B having regard to the failure to raise them earlier. The Applicant opposes the grant of leave. The Council will abide the decision of the Court in this respect. The Argument in support of leave 8 Mr Perram, if leave is granted proposes to argue that an essential integer of s 96 Environmental Planning and Assessment Act, 1979 [EPA Act] is that there must first be a valid development consent. Accordingly there are two jurisdictional facts that must be established namely, the application for modification and a valid development consent upon which the application is based. If there be no development application or development consent then there can be no modification. 9 He says that subject to the effect of s 101 of the EPA Act there is no reason why a party in Class 1 proceedings cannot challenge the validity of a development consent. He relies on the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. 10 The subject development consent has been notified in accordance with s 101 of the EPA Act. As Jagot J noted in Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121, s 101 will operate to preclude any challenge to the validity of a consent if 3 conditions are satisfied. First, the decision must be a bona fide attempt to exercise the power. Secondly, it must relate to the subject matter of the legislation and must be reasonably capable of reference to the power given to the decision maker (R v Hickman and Ors; Ex-parte Fox and Clinton (1945) 70 CLR 598). Finally, the consent must not be granted in breach of an "essential" "imperative" or "inviolable" limit or restraint in the EPA Act. 11 Her Honour identified the failure to afford a person procedural fairness in accordance with the notification requirements for development applications in the EPA Act and an attempt to impose conditions requiring the payment of money or the dedication of land upon the grant of development consent otherwise than in accordance with s 94 as restraints in the EPA Act which have been identified as essential, imperative or inviolable. (Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207, and Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695 and Woolworths Limited v Pallas Newco (2004) 61 NSWLR 607). 12 The Second Respondent will argue that the failure to comply with the development standard in cl 25I of Ku-Ring-Gai Planning Scheme Ordinance is an inviolable constraint and accordingly the consent is not protected by s 101. 13 The Second Respondent will also argue in support of the proposed issue 1B that the failure to obtain a dispensation pursuant to SEPP1 in relation to the development standard in cl 25I is a relevant factor in the exercise of the Court's discretion whether to grant an approval to the application for modification of the development consent. That argument will have a consequence for the exercise of the Court's discretion in determining the appeal under s 96(6). The Argument against the grant of leave. 14 The first point that Mr Robertson SC makes on behalf of the Applicant is, whether or not there is a valid development consent is not a jurisdictional fact for the exercise of power. Rather the question is whether there is in fact a document that is a development consent. Other relevant questions are whether the Applicant has standing to make the application and whether the development as modified will be substantially the same as the development the subject of the original development consent. The development consent that provides the basis for the s 96 Application is the consent notified pursuant to s 81 of the EPA Act. 15 Mr Robertson asserts that s 96 does not make validation of the consent a fact upon which the jurisdiction to modify the consent depends. Accordingly, if the consent is not set aside by this Court then it must be given full force and effect as a subsisting consent. It cannot be set aside except by the exercise of the jurisdiction of this Court and then only if it is invalid on its face or was granted in breach of an essential, imperative or inviolable or limited restraint found in the EPA Act. 16 In support of the above arguments Mr Robertson relies upon the decision of the Court of Appeal in F Hannan v Electricity Commission of NSW [No.3] (1985) 66 LGRA 306. He refers in particular to the judgment of the Chief Justice who, starting at page 310, analyses the wide range of the jurisdiction of this Court under the EPA Act in conjunction with the jurisdiction conferred upon it by the complementary statute passed at the same time, namely the Land and Environment Court Act, 1979 [LEC Act].

Whether leave should be granted 17 At page 312 Street CJ identified the legislative scheme "both establishing the substantive law governing environmental matters and setting up the curial structure charged with the exclusive jurisdiction to determine disputes arising within that field of substantive law". He goes on to note at 313 that the Court enjoys a wide discretionary range within which to consider the formulation of orders or to remedy or restrain breaches of the planning legislation. 18 The precise manner in which the Court will frame its orders in the context of particular disputes is ultimately the discretionary province of the Court to determine in the light of all of the factors falling within the purview of the dispute. As Mr Robertson points out, the wide discretionary range of the Court's jurisdiction arises only in Class 4. So that even if the Court can make a declaration of invalidity in Class 1, it would be deprived of withholding relief under s 124 of the EPA Act either within its discretion, or for other valid reasons, in the manner noted by Street CJ at 312. 19 Moreover, at page 327 McHugh JA observed that the provisions of the EPA Act and the LEC Act "make it plain that a decision made in breach of the Act cannot be attacked in other Courts or in collateral proceedings". In that context McHugh JA noted that as the decision is unchallengeable so far as other Courts are concerned, this is the antithesis of a void decision. He also expressed doubt that s 20(2)(c) of the LEC Act gives the Court power to declare a decision void in addition to a power to declare that a decision is in breach of the Act. 20 Finally, McHugh JA makes the point that despite a breach of the Act, all activities carried out in consequence of the impugned decision are effective unless and until this Court makes an order pursuant to s 123 or s124 the EPA Act. 21 Notwithstanding that Pain J supported her decision in Hollis v Shellharbour City Council [2002] NSWLEC 83 by relying on the High Court decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) HCA 11, Mr Robertson distinguishes the High Court decision on the basis that the Court was applying the general law in a different statutory context that arises in this Court. At [51] Gaudron and Gummow JJ held that a decision that involves jurisdictional error is a decision that lacks legal foundation and it is properly regarded in law as no decision at all. Her Honour distinguish Hannan and Swadling and Anor v Sutherland Shire Council and Ors (1994) 82 LGERA 431 and MLC Properties and Anor v Camden Council (1997) 96 LGERA 52 as cases that did not deal with an invalid decision based on a failure to find that a relevant jurisdictional fact existed. 22 Following the decision in Hollis, Cowdroy J in Kindimindi Investments Pty Ltd v Lane Cove Council and Anor 2005 NSWLEC 398 expressed the opinion that earlier decisions of the Court of Appeal such as Hannan can no longer be regarded as good law in respect of the consideration of facts going to jurisdiction. Pain J did not express such an opinion in terms, although her decision was to the effect that it was not open to modify a development consent that was granted of the basis of jurisdictional error. Rather than declaring the consent as having been granted in breach of the Act, as the Court did in Hannan, Pain J applied the common law doctrine of nullity. 23 I am unable to fathom any support for the approach taken by Pain J and Cowdroy J in the High Court judgment in Bhardwaj. It was a decision under a significantly different statutory regime to the one being considered in the present case. 24 Mr Robertson submits that s 101 and the regime established by the EPA Act and the LEC Act is inconsistent with the nullification theory. That is because he says s 101 extends the validity of the decision and confers it on an otherwise invalid consent by giving it effect notwithstanding that may be invalid. 25 I make two observations which distinguish the decision in Bhardwaj. The question the High Court asked in Bhardwaj had regard to the legal consequences of the tribunal making the decision which involved jurisdictional error. Those consequences depend upon the particular legislation and how it is construed (see Gleeson CJ at 11 and Gaudron and Gummow JJ at 55). It is significant that Mc Hugh J emphasised that the rights of the party were not determined in the judicial proceedings reviewing the administrative decision (at page 618). The circumstances under the present regime are distinct from the migration legislation being considered in Bhardwaj. The reasoning in Hannan is not in my view disturbed by that decision. Accordingly, in my opinion this Court continues to be bound by the decision in Hannan.

Conclusion 26 I therefore accept the submissions made by Mr Robertson that this Court is still bound by the decision in Hannan, and that Bhardwaj can be distinguished on its facts. Hannan, was a particular decision in relation to the jurisdiction of this Court and had regard to the particular statutory powers conferred by s 123 and s 124 of the EPA Act which contemplate that a decision to grant consent can continue to have effect notwithstanding a finding of invalidity by the exercise of the Court's discretion under those sections. The introduction of s 23B of the LEC Act and s 101 of the EPA Act reinforce that conclusion so that the Calvin v Carr line of authority continues to be applicable. (Calvin v Carr and Ors [1980] AC 574). 27 In Helman v Byron Shire Council (1995) 87 LGERA 349, Handley JA at page 360 expressed the opinion that the existence of the Court's jurisdiction in Class 4 proceedings provides no justification for confining the scope of its jurisdiction in Class 1 proceedings. That opinion is consistent with the Calvin v Carr line of authority. However, the Second Respondent no longer maintains the position that the Court should make a declaration to the effect the development consent is invalid. He confines the relief to a finding in the terms of issue 1A in order to undermine the base for the application to modify the consent. 28 There are practical consequences of proceeding in that way. Firstly the consent would remain on foot as there will be no declaration of invalidity or consequential orders. Furthermore the Court's finding would pay no regard to the issues of discretion that would arise in Class 4 proceedings before the Court made any formal orders. Foreseeably there will also be need to consider whether an application could be made pursuant to s 23B of the LEC Act. 29 Moreover, the Second Respondent has been in a position to challenge the validity of the development consent for a number of years and has effectively stood by while the applicant acted on the consent and completed the development. In that context the development is a major one and obviously has already involved the expenditure of millions of dollars. The five residential flat buildings are almost complete. 30 For the reasons articulated by Mr Robertson I am not satisfied that this is an appropriate case where the Court should embark upon an enquiry in respect of the validity of the development consent in Class 1 proceedings. As explained in Hannan specific jurisdiction has been conferred on this Court to exercise it in accordance with the statutory regime. There are elements of discretion that cannot be effectively dealt with in Class 1. On that basis alone I am not prepared to grant leave to the Second Respondent to raise the issue of validity in this way and at this time. 31 If it was necessary for me to decide the matter I would be inclined to agree with Mr Robertson that the jurisdictional fact that arises under s 96 is whether there is a development consent in existence rather than whether there is a valid development consent. In any event the development consent subsists until it is set aside by a formal order of this Court as a consequence of a finding that there has been a breach of the EPA Act. That cannot be achieved in Class 1 proceedings. The Court is particularly vested with jurisdiction to decide whether there has been a breach of the EPA Act in the particular manner described by the legislative scheme (see Hannan). I am not prepared to allow the issue to be litigated in these Class 1 proceedings. 32 I therefore refuse leave for the Second Respondent to rely upon issue 1A. 33 Issue 1B is in different category. The question that arises is essentially whether the breach of the development standard is a relevant consideration. The alleged failure to maintain an objection pursuant to SEPP1 is in my opinion no more than a subset of an issue that relies upon a consideration of the provisions in cl 25I as a relevant matter to be taken into account. To that extent, and I emphasise to that extent only, I propose to give leave for the Second Respondent to adduce evidence and argument in respect of issue 1B.

22/06/2007 - name of applicant's barrister added - Paragraph(s) cover sheet

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.

(2005) 138 LGERA 207

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (13)

Cited By (2)