Mitchell Group Pty Limited v Baulkham Hills Shire Council

Land and Environment Court (NSW)|2004-03-31|Before: Talbot J

Introduction 1 By application class 1 the applicant has appealed against the alleged deemed refusals of a development application for Stage 1 - shops and offices, including a supermarket and subdivision and a separate development application for Stage 2 comprising two apartment buildings containing 14 three bedroom units and one townhouse development containing nine three bedroom townhouses. The development application forms were lodged with Baulkham Hills Shire Council ("the council") on 13 October 2003. 2 By means of a letter bearing date 3 November 2003 the council advised the applicant that a preliminary assessment of the proposal had been undertaken. That assessment revealed that the information specified in the letter is required to enable further processing of the application. 3 The evidence discloses that the applicant received the letter dated 3 November 2003 on 12 November 2003. 4 On 14 November 2003 the applicant's architect, Kevin Norman Smith, wrote to the council and in the opening paragraph made the following observation:- Firstly, thank you for your comments and guidance in addressing the various issues in your letter dated 3rd November 2003 (not received in mail till 13th November 2003). 5 Thereafter, the architect addressed some of the issues raised by the council. These issues were further addressed in a second letter from the architect to the council dated 12 December 2003. The process of response is continuing. 6 The Senior Town Planner, Allan Dunston Cambridge, who prepared the letter from the council to the applicant dated 3 November 2003, says that in accordance with his usual practice he would have signed the letter on 3 November 2003 after preparing an initial draft on 29 October 2003. He completed six revisions of the draft letter. He also gives evidence of the practice for the collection of mail after signing and mailing. The council does not keep records of outgoing mail or records of the time of posting of outgoing mail. 7 The application class 1 was filed and served on 26 February 2004. 8 The council contends that the applicant has lodged the appeal prior to its entitlement to rely upon the deemed refusal of the development application. As the development is for integrated development the applicant is not entitled to rely upon a deemed refusal of the application until after the expiration of 60 days from the date of lodgement. 9 The council also submits that the letter dated 3 November 2003 engaged the "stop the clock" provisions of the Environmental Planning and Assessment Regulation 2000 ("the Regulation"). 10 The relevant clauses in the Regulation are as follows:- 54 Consent authority may request additional information (cf clause 48 of EP&A Regulation 1994) (1) A consent authority may request the applicant for development consent to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the application. (2) The request: (a) must be writing, and

(b) may specify a reasonable period within which the information must be provided to the consent authority. (3) The information that a consent authority may request includes, but is not limited to, information relating to any relevant matter referred to in section 79C (1) (b)-(e) of the Act or in any relevant environmental planning instrument. (4) However, the information that a consent authority may request does not include, in relation to building or subdivision work, the information that is required to be attached to an application for a construction certificate. Note: The aim of this provision is to ensure that the consent authority does not oblige the applicant to provide these construction details up-front where the applicant may prefer to test the waters first and delay applying for a construction certificate until, or if, development consent is granted. (5) Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided. (6) If the applicant for development consent has failed to provide any of the requested information by the end of:

(a) any period specified as referred to in subclause (2) (b), or

(b) such further period as the consent authority may allow, the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly. 106 Definitions In this Division, "assessment period" means: (a)… (b) … (c) … (d) the period of 40 or 60 days, as the case may be, prescribed by clause 113 (1) as the period beyond which a development application is taken to have been refused.

107 First 2 days after development application is lodged Neither the day on which a development application is lodged with the consent authority nor the following day are to be taken into consideration in calculating the number of days in any of the assessment periods.

109 Days occurring while consent authority's request for additional information remains unanswered (1) Any day that occurs between the date of a consent authority's request for additional information under clause 54 and: (a) the date on which the information is provided to the consent authority, or

(b) the date on which the applicant notifies the consent authority in writing that the information will not be provided, whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods. (2) Subclause (1) applies only if the relevant request is made within 25 days after the date on which the development application was lodged with the consent authority. Note: The 25-day period may be extended by operation of clauses 107 and 108.

113 When is an application taken to be refused? (cf clause 70B of EP&A Regulation 1994) (1) For the purposes of section 82 (1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within: (a) …

(b) 60 days, in the case of: (i) …

(ii) integrated development (other than integrated development that, pursuant to State Environmental Planning Policy No 62 - Sustainable Aquaculture , is Class 1 aquaculture development), or

(iii) … (2) The 40-day and 60-day periods are measured from: (a) the date the development is lodged with the consent authority, or (b) … (3) … (4) … Note: Clause 107 provides that certain periods of time are to be ignored when calculating a 40-day or 60-day period under this clause. Deemed refusal provisions do not apply to development under section 80 (7) of the Act (where a public inquiry is held into designated development) or to any State significant development for which a public inquiry is held.

11 The applicant's contention is that by the time the letter dated 3 November 2003 was received on 12 November 2003 more than 27 days had expired since the lodgement of the development application and, accordingly, the letter was ineffective to stop the clock. Thus, the right to lodge an appeal to this Court following a deemed refusal of the application had arisen by the date the appeal was filed. On the other hand, the council argues that the clock was stopped on the date of the letter, namely 3 November 2003 or at least shortly thereafter and that, accordingly, only 20 days, (as a maximum) out of the prescribed 25 days, had elapsed. Further, as the information requested in the letter dated 3 November 2003 has not been provided the 60-day period referred to in cl 113 of the Regulation has not yet elapsed. The resolution of the dispute is dependant upon a determination of the proper construction of cl 109 of the Regulation. 12 Arguably, these provisions are intended to cushion a consent authority against the impact of contesting an appeal before it has in its possession the relevant information to place it in a position to properly consider an application for development consent. On the other hand, the provisions also work as a significant constraint on the opportunity for the applicant to appeal on the basis of a deemed refusal of consent. The provisions are not directed primarily to the manner of communicating a request for information but rather to determining the circumstances that give rise to the postponement of a right of appeal until the information requested is provided. 13 Unfortunately the drafter has not clearly or consistently described a means of service or notification in cl 109. Clause 109(1) contextually refers to the "date of a consent authority's request", "the date on which the information is provided" and "the date on which the applicant notifies the consent authority" whereas in cl 109(2) the expression "if the relevant request is made" is used. There is a readily apparent discord between the commencement of the relevant period of suspension by reference to the date of the request for information in cl 109(1) and the proviso in cl 109(2) that cl 109(1) only applies if the relevant request is "made" within the prescribed period of 25 days. 14 The sole issue in the present case is whether, on the facts, the relevant request was made within 25 days after the date on which the development application was lodged. If not, then cl 109(1) has no application. 15 Mr Drury, who appears for the council, says that if "made" in cl 109(2) is to be construed as despatched and received then it might be expected that the reference in cl 109(1) would have been to the date of service of the request rather than the date of the request itself. 16 Mr Robertson SC, who appears for the applicant, contends that a request must inevitably involve a bilateral concept, including bringing the applicant's mind to the subject matter of the request. It can only be acted upon if it is received by the person to whom it is addressed. He argues that this approach is justified by reference to the consequences of losing the substantive right of appeal for an indeterminate period, thereby requiring that the provision be interpreted strictly by adopting a purposive construction. 17 The appropriate approach was identified in Secretary, Department of Social Security v Garratt (1992) 16 AAR 223; 109 ALR 149. The statutory provision considered in Garratt concerned a notice of determination by the Secretary and employed the phrase "a notice was given". There was no reference to a mode of service. Gummow J said the following at p 231;157:- Paragraphs (a) and (b) of s 168(4) are not directed to any particular manner of service of notices. They are concerned with the fixing of a date which is determinative of the right of persons in relation to pensions, benefits and claims under the Act. The date is fixed by criteria which operate favourably or adversely to those persons by reference to their action or inaction over a particular period after notice was given. In this setting, the rights of persons should not readily be construed so as to fix upon something less than the giving of notice and to accept an imputed notification as sufficient for the operation of the legislation.

18 The relevant request is intended to be a mechanism for calculating the number of days to be excluded from the period prescribed by cl 113(1) of the Regulation as the period beyond which a development application is taken to have been refused. The only prescription of the form of the request is in cl 54(2). The request is made for the purposes of communicating what additional information the consent authority considers to be necessary to properly consider the application. 19 The prescribed period is to be adjusted while the applicant acts upon the request. As a matter of practicality the request cannot be acted upon (even by notifying the consent authority in writing that the information will not be provided pursuant to s 54(5)) until it is communicated to the applicant as the person with the capacity to respond. The making of the request has significant consequences for the applicant. The making of the request, therefore, cannot be characterised as a unilateral act. 20 Clause 109 of the Regulation is not a provision which authorises any request to be served by post within the meaning of s 76 of the Interpretation Act 1987. Moreover, neither s 153 of the Environmental Planning and Assessment Act 1979 nor s 160 of the Evidence Act 1995 take the argument for the council any further. 21 In my opinion, the provisions in cl 109 of the Regulation should not be construed to have effect until the request has been communicated to the applicant. The date of the receipt should not be imputed from other legislation in the absence of a specific direction to that effect. To do otherwise would be to fix the period for the appeal to this Court by criterion which operates adversely to the applicant. 22 There is no dispute that the applicant did not receive the request until 12 November 2003. I therefore find the Court has jurisdiction to hear the appeal.

Costs 23 The applicant has been successful in meeting a challenge which is essentially a jurisdictional question. It is appropriate, therefore, that the Court exercise its discretion in relation to costs in favour of the successful party (see Gee v Port Stephens Council [2003] NSWLEC 260, unreported and the authorities referred to therein). 24 The matter will be listed for callover before the Registrar at a date to be fixed. 25 The exhibit may be returned.

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.

CITATION : Mitchell Group Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 113 APPLICANT Mitchell Group Pty Limited PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10219 of 2004 CORAM: Talbot J KEY ISSUES: Jurisdiction :- effect of "stop the clock" provisions Appeal :- whether regulation postponing right to appeal engaged Environmental Planning and Assessment Act 1979 s 153 LEGISLATION CITED: Evidence Act 1995 s 160 Interpretation Act 1987 s 76 Environmental Planning and Assessment Regulation 2000 cl 54(2), cl 54(5), cl 106, cl 107, cl 109(1), cl 109(2), cl 113(1) CASES CITED: Gee v Port Stephens Council [2003] NSWLEC 260, unreported; Security, Department of Social Security v Garratt (1992) 16 AAR 223; 109 ALR 149 DATES OF HEARING: 25/03/2004 DATE OF JUDGMENT: 03/31/2004

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