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

KEY ISSUES: Appeal :- application to re-open - whether sufficient opportunity to be heard - whether reasons given without considering operation of a statutory provision - unavailability of trial judge - power to re-open - discretion

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 State Environmental Planning Policy No 1 - Development Standards

Autodesk Inc v Dyason (1993) 176 CLR 300; CASES CITED: Mirvac Projects Pty Ltd v Ku-Ring-Gai Council and Michael William Inglis [2007] NSWLEC 540; Wentworth v Rogers (No 3) (1986) 6 NSLWR 642

APPLICANT Mr T F Robertson SC with Mr J E Lazarus SOLICITORS Lindsay Taylor Lawyers

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr P Marincowitz, solicitor SOLICITORS DLA Phillips Fox

SECOND RESPONDENT Mr J J Garnsey QC with Mr Chris Norton SOLICITORS Woolf Associates

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MICHAEL WILLIAM INGLIS Second Respondent

JUDGMENT Jagot J: 1 By notice of motion filed on 24 September 2007 the applicant, Mirvac Projects Pty Ltd (Mirvac), sought orders that the matter be re-opened to enable it to put to the Court certain arguments or, alternatively, that the appeal be upheld in part.

2 Mirvac's claims arise out of the reasons for decision of Talbot J in Mirvac Projects Pty Ltd v Ku-Ring-Gai Council and Michael William Inglis [2007] NSWLEC 540 published on 29 August 2007. It was common ground that Talbot J's reasons for decision were delivered on or about the date of expiry of his commission as an Acting Judge. Talbot J is not available to deal with the notice of motion. Consequently, s 11(3A) of the Land and Environment Court Act 1979 (the LEC Act) (enabling an Acting Judge to continue to deal with any matter they heard after the expiry of their commission) is immaterial.

3 In the reasons for decision, Talbot J directed the parties to "confer and agree on a form of orders reflecting the Court's decision", such orders to be filed with the Registrar for sealing within 14 days (at [70]). No agreement was reached in accordance with these directions. Instead, Mirvac claimed that the Court's reasons for decision overlooked the operation of s 109B of the Environmental Planning and Assessment Act 1979 (the EPA Act). Mirvac said that, through no fault of its own, it was denied the opportunity to argue that this provision provided a complete answer to the problem that led Talbot J to decide to dismiss the appeal in part. Accordingly, Mirvac submitted that the interests of justice demanded the proceedings be re-opened insofar as they relate to that part of the decision said to involve oversight of s 109B (relying on Autodesk Inc v Dyason (1993) 176 CLR 300).

4 The second respondent, Mr Inglis, claimed that the only power available to the Court was to dismiss the appeal consistent with the reasons of Talbot J. Alternatively, if the Court had power to entertain the notice of motion, it would dismiss Mirvac's application in the exercise of discretion.

5 Mirvac's notice of motion also gave rise to a subsidiary issue about whether the reasons for decision indicated that the appeal should be upheld in part with respect to a note that Mirvac wished to include within the development consent, qualifying the operation of conditions 131 to 135.

6 The Council, for its part, took a neutral position on Mirvac's principal application to re-open and supported Mirvac's submissions about the upholding of the appeal in part so as to modify the consent to include a note before condition 131.

7 To understand the application it is necessary to record some facts, albeit as briefly as possible. Mirvac has the benefit of development consent to develop land at 10 - 16 Marian Street, Killara. Mr Inglis is a neighbour. He was joined as a party to the proceedings under s 39A of the Land and Environment Court Act 1979 (the LEC Act). The development project has a lengthy history and much of the development has already been constructed. Mirvac applied to modify the development consent under s 96 of the EPA Act. A number of such modifications have been approved. However, the Council had concerns about this modification application. Mirvac exercised its right of appeal. Talbot J, assisted by Commissioner Hoffman, heard the appeal on 1 May 2007, 3 - 4 May 2007, 12 June 2007, 21 June 2007 and 12 July 2007.

8 The reasons for decision delivered on 29 August 2007 identified a "problem for the Court" (at [51]). The Court described this problem as the modification application asking for approval to a modified development in a form that would be in breach of the EPA Act. The breach would arise because the modified development did not comply with cl 25I(2) of the Ku-ring-gai Planning Scheme Ordinance, the effect of which had not been varied when the consent was granted by the upholding of an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1). Clause 25I(2) required the development to provide at least 50% of the site area as deep soil landscaping (see [47] of the reasons). The relevant paragraphs identifying the problem and its consequences for the appeal are as follows: 51 The problem for the Court therefore is that it is being asked to approve a modified development in a form that cannot be maintained whilever clause 25I(2) operates against it. As a matter of policy the Court should not embrace such a position by granting an approval to a form of development that can only be carried on in breach of the Act (see s 76A(1) and s 125).

52 The last mentioned conclusion means that the Court must refuse the application in so far as it inevitably leads to the consequence of there being a breach of cl 25I(2).

53 An approval can be granted to that part of the application that generates the Note prior to condition 131. There may be aspects of the plans that can be approved because those parts do not relate to development that impinges on the capacity to provide deep soil landscaping (DSL). I am unable to discern what those aspects are without further clarification and investigation. The parties particularly the applicant and the first respondent should be capable of identifying any such aspects.

54 There has been a full exploration of the merit issues in regard to the development in its modified form. But for the impediment to giving an approval to non-complying development I have decided with the benefit of considerable assistance from Commissioner Hoffman, whose advice has been most helpful, that the development in its modified form is acceptable. The evidence has persuaded me that if appropriate conditions were applied an approval would have been forthcoming. It is appropriate that the parties have the benefit of a formal finding in respect to the merit issues so that a way forward can be devised in a further attempt to formalise the situation.

9 The reasons then set out many and varied merit findings (at [55] - [69]), as well as a rejection of an argument for the making of a costs order (at [71] - [72]).

10 Mirvac submitted as follows (in summary form): (1) The operation of cl 25I(2) and future breach of the EPA Act, if the consent were modified as proposed, had not been raised as an issue in the proceedings. The issues raised about deep soil landscaping were different in substance and did not concern any purported ongoing or consequential breach of the EPA Act by reason of the modification. Rather, they concerned an argument that the original grant of consent breached the EPA Act because an objection under SEPP 1 was required but had not been submitted and a separate argument alleging a lack of power to modify the consent as the development had been substantially constructed. Talbot J rejected those arguments but identified the "problem for the Court" as a new issue.

(2) Mirvac was never given an opportunity to be heard about this problem. Had it been given the opportunity, it would have been able to draw the Court's attention to s 109B of the EPA Act ("Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force"). Section 109B was a complete answer to the problem, particularly when construed in light of s 76C (which subordinates s 76A and s 76B to the other provisions of the EPA Act, including s 109B). This was an important issue generally for the capacity to modify consents. The reasons for decision would be relied on in other cases to suggest that modifications must be refused when, in fact, s 109B was a clear and complete answer to the problem Talbot J identified. Mirvac could not be at fault for not having raised s 109B as the issue of prospective breach had never been identified. If the second respondent thought it had identified this issue then, in any event, the second respondent had an obligation to draw the Court's attention to s 109B. (3) The second respondent's arguments about s 109B on the notice of motion were misconceived. The section operates prospectively to ensure that there would be no ongoing breach of the EPA Act if the consent were modified as sought. The second respondent was also wrong to suggest that the development had been carried out in breach of the EPA Act. Talbot J did not and could not so find because of the operation of s 80(12) of the EPA Act that made the construction certificate part of the development consent. (4) The "problem for the Court" involved a wholly discrete point, as Talbot J's reasons disclosed. But for the fact that Talbot J was unavailable, there could be no doubt that the interests of justice demanded the re-opening of the proceedings on this discrete issue rather than the cost and expense of re-litigating the entire case. The capacity to appeal on an error of law (s 57 of the LEC Act) was no substitute, as any remitter would not be so confined (see also Autodesk at 308, footnote (25)). (5) The unavailability of the trial judge did not prevent the Court from re-opening the matter ( Wentworth v Rogers (No 3) (1986) 6 NSLWR 642 at 653). Judges constitute the Court (s 6 of the LEC Act) and any judge may complete the matter. Further, the Court could not make orders dismissing the appeal in knowing breach of the requirements of natural justice. Mirvac's recently lodged development application referred to by the second respondent was irrelevant. (6) The second respondent had not identified any substantive connection between this discrete point and the balance of Talbot J's findings about the merits. Those findings on the merits could not be re-opened and would remain unaffected by the re-opening. Further, the second respondent's reliance on Talbot J's comments when delivering his reasons could not be substituted for the reasons themselves. (7) Alternatively, Talbot J clearly intended to modify the consent to the extent of including the note before condition 131 in either its positive or negative form. 11 The second respondent made lengthy written and oral submissions against the application. In summary form, they were as follows: (1) Talbot J constituted the Court, exercised the jurisdiction of the Court and pronounced judgment by dismissing the appeal. The Court has no power to vary the judgment pronounced on 29 August 2007 to the effect that the appeal must be dismissed (also relying on Wentworth v Rogers (No 3) ). The orders proposed by the applicant and the Council are not authorised by Talbot J's decision. Applying Wentworth v Rogers (No 3) at 653, the only thing that needs to happen to complete these proceedings is for Talbot J's order dismissing the appeal to be perfected.

(2) The substance of the issues argued before Talbot J included the fact that the development had been carried out in breach of cl 25I(2) of the planning scheme ordinance. Mirvac now sought to draw some spurious distinction between those arguments and the problem identified by Talbot J. Mirvac had every opportunity to put arguments about s 109B before the Court but failed to do so. It had not been denied natural justice. (3) It was incorrect to assume that the problem Talbot J identified was discrete from the merits of the application. Consideration of the findings on the merits at [55] to [69] (particularly at [67]) showed that the deep soil landscaping issues were interlinked with these findings, as was also apparent from the latter part of the observations in [53]. At the least, the Court could not be satisfied that the issues were discrete without reconsidering, in effect, the whole of the evidence. (4) It would be wrong to assume that s 109B was an answer to the problem. If Mirvac had raised that section during the proceedings, then the second respondent would have argued that the section does not apply because this development had not been carried out in accordance with the consent as required by s 109B. Explanatory material accompanying the original form of this section indicated it had a more limited operation than that for which Mirvac contended. See Talbot J's findings at [40], [43], [46] and [71] about the non-complying way in which the development had been carried out. Accordingly, s 109B did not have the effect claimed by Mirvac in this case. Further, in order to work out whether s 109B could apply evidence about the development having been carried out in breach of the consent would be necessary. (5) Mirvac had lodged a development application, in effect, taking up the Court's invitation to resolve the problem by another method. That application was consistent with the merits findings and weighed against any re-opening of the modification application. (6) The note was an important issue about which the second respondent had made extensive submissions. The note purported to make certain conditions apply only if the Council was the principal certifying authority. It was important because one of the conditions purported to be qualified by the note concerned deep soil landscaping. The observations in [53] of the reasons were equivocal. It cannot be assumed that Talbot J accepted that all or any conditions could be subject to the proposed note.

12 Irrespective of the question of the power to grant Mirvac's application in the unusual circumstances of this case, I have concluded that the notice of motion should be dismissed as a matter of discretion.

13 First, I am not satisfied that the extent of the re-opening can be as conveniently limited as Mirvac submitted. For example, it is not clear that the recommendations in [68] constituted all "appropriate conditions" that the Court had in mind in [54] and [67]. Whether all conditions could be practically implemented also remains unclear (see the comments at [71]). The significance of these circumstances for the ultimate resolution of the appeal, but for the "problem" the Court identified, is also not apparent.

14 Secondly, Mirvac's submission that s 109B of the EPA Act operates prospectively in this case so that any consent as modified cannot give rise to breach of the EPA Act is not beyond argument. I am not satisfied that the notice of motion provided an adequate vehicle for consideration of this important issue of construction. Moreover, the section would raise a new raft of issues including issues of fact, at least on the second respondent's construction.

15 Thirdly, in these circumstances, it is relevant that Mirvac has also decided to take up the trial judge's invitation to resolve the problem by other means. Mirvac did not dispute the second respondent's description of its recently lodged development application as one generally consistent with the recommendations about the merits of the modified proposal in the reasons for decision.

16 Finally, but for the claim that it was denied the opportunity to be heard about the problem identified in [51] of the reasons, Mirvac would be confined to its right of appeal in accordance with s 57 of the LEC Act. In Autodesk at 308 Brennan J noted that the precise ground which a court assigns for a decision will frequently be formulated in different terms from the parties' submissions but, if the ground has arisen in one way mentioned or is logically involved in a proposition that has been argued, then there will have been a sufficient opportunity to be heard. 17 These observations, particularly about a ground being logically involved in a proposition argued, take on particular significance in this case. The trial judge had the benefit of hearing at first hand all the arguments in this lengthy matter but is not available to determine the argument about lack of opportunity to be heard. The issue of the development having been carried out in breach of cl 25I(2) of the planning scheme ordinance, however, was clearly at the forefront of the second respondent's arguments against approval of the modification application. As Autodesk makes clear, what is required is a sufficient opportunity to be heard. In these circumstances, I do not accept Mirvac's submission that perfecting the orders Talbot J intended to be made would necessarily involve acting in knowing breach of the requirements of natural justice.

18 I am also not satisfied that the consent may be modified by inclusion of any form of the note before condition 131. This is because the observation in the first sentence of [53] is arguably related to the subsequent sentences. Further, the matters in conditions 131 to 135 are not unimportant and some of them are not obviously connected to the question of the identity of the principal certifying authority. For example, how does condition 132 (about necessary balustrade heights for safety) depend on the identity of the principal certifying authority?

19 As the second respondent submitted, the only orders that obviously reflect Talbot J's reasons are orders dismissing the appeal, refusing the modification application and requiring each party to pay their own costs of the proceedings (save and except for the notice of motion). These are the only orders needed to complete the proceedings.

20 Therefore, the Court's orders are as follows: (1) The applicant's notice of motion filed 24 September 2007 is dismissed.

(3) The application to modify development consent DA 1388/04 lodged on 24 November 2006 is refused.

(4) Each party is to pay its own costs of the proceedings save and except for costs of the notice of motion filed on 24 September 2007 (which may be argued).

(5) The exhibits are returned.

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