010] NSWSC 243
Port Stephens Council v Chan Industrial Pty Limited [2005] NSWCA 232; 141 LGERA 226
Northern Territory of Australia v Mengel [1995] HCA 65; 185 CLR 307
Leerdam v Noori [2009] NSWCA 90; 255 ALR 553
Pharm-a-Care Laboratories Pty Limited v Commonwealth of Australia (No. 3) [2010] FCA 361; 267 ALR 494
Sanders v Snell [1998] HCA 64; 196 CLR 329
Rush v Commissioner of Police [2006] FCA 12; 150 FCR 165
Federal Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; 237 CLR 146
Leinenga v Logan City Council [2006] QSC 294
Trobridge v Hardy [1955] HCA 68; 94 CLR 147
A v State of New South Wales [2007] HCA 10; 230 CLR 500
Parker v Commonwealth of Australia [2011] FCA 1029
[2]
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419
Palmer v Dorman [2005] NSWCA 361
Makawe Pty Limited v Randwick City Council [2009] NSWCA 412; 171 LGERA 165
Coshott v Woollahra Municipal Council (1988) 14 NSWLR 675
Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1
The Beach Club Port Douglas Pty Limited v Page [2005] QCA 475; (2006) 1 QdR 307
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
De Gruchy v The Queen [2002] HCA 33; 211 CLR 85
R v Vjestica [2008] VSCA 47; 182 A Crim R 350
Porter v OAMPS Limited [2005] FCA 232; 215 ALR 327
Chan v Selwood [2009] NSWSC 1335
Neilson v City of Swan [2006] WASCA 94; 147 LGERA 136
Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186
Garrett v Attorney General [1997] 2 NZLR 332
Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216; [2008] 3 NZLR 649
Jones v Swansea City Council [1990] 1 WLR 54 (Court of Appeal); [1990] 1 WLR 1453 (House of Lords)
Woolcock Street Investments Pty Limited v CDG Pty Limited [2004] HCA 16; 216 CLR 515
Precision Products (NSW) Pty Limited v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102
Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332
Tabet v Gett [2010] HCA 12; 240 CLR 537
McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; 72 NSWLR 504
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
Texts Cited: Sappideen and Vines (editors), "Fleming's The Law of Torts", 10th edn, 2011
Trindade, Cane and Lunney, "The Law of Torts in Australia", 4th edn, 2008
Aronson, "Misfeasance in Public Office: A Very Peculiar Tort" (2011) 35 Melbourne University Law Review 1
Category: Principal judgment
Parties: MM Constructions (Aust) Pty Limited (First Plaintiff)
Milan Maruncic (Second Plaintiff)
Port Stephens Council (Defendant)
Representation: Mr BMJ Toomey QC; Mr EG Romaniuk (Plaintiffs)
Mr MJ Joseph SC; Mr S Glascott (Defendant)
Creagh & Creagh (Plaintiffs)
DLA Piper Australia (Defendant)
File Number(s): 2008/289298
Publication restriction: ---
[3]
Judgment
1JOHNSON J : By Statement of Claim filed 23 May 2008 the Plaintiffs, MM Constructions (Aust) Pty Limited and Milan Maruncic, sue the Defendant, Port Stephens Council ( "the Defendant" or "the Council" ), seeking damages for misfeasance in public office and negligence.
2The proceedings relate to the Defendant's consideration of a development modification application lodged by the Plaintiffs in February 2006 pursuant to s.96 Environmental Planning and Assessment Act 1979 ( "EPA Act" ) in respect of property at 11-13 Church Street, Nelson Bay ( "the Church Street site" or "Milan Towers" ). The application was determined by the Defendant adversely to the Plaintiffs in July 2007.
3Put shortly, the Plaintiffs contend that they were subjected to a protracted process whereby the Defendant (by its officer, Ms Amanda Gale) purported to consider the modification application on its merits between February 2006 and July 2007, although Ms Gale had formed a predetermined view that it ought be refused. The Plaintiffs' case is that the manner in which the application was dealt with gives rise to tortious liability and an entitlement to damages by reference to loss of a chance to make a profit. The Plaintiffs contend that, but for the tortious conduct of the Defendant, they would have built and sold apartments on the Church Street site with resulting profits between about $2.2 million and $3.7 million.
4The Defendant, in essence, asserts that no legal or factual foundation has been demonstrated so as to establish its liability in respect of either of the Plaintiffs' causes of action. Further, defences of contributory negligence and failure to mitigate loss have been pleaded.
5Were the Plaintiffs to succeed on the question of liability in respect of either claim, the Defendant disputes that such liability is causative of any loss to the Plaintiffs, or at least disputes the quantum.
[4]
The Hearing and Evidence in the Proceedings
6The Plaintiffs were represented by Mr BMJ Toomey QC and Mr EG Romaniuk of counsel. Mr MJ Joseph SC appeared with Mr S Glascott of counsel for the Defendant.
7The somewhat chequered history of the hearing may be gleaned from a number of judgments which I have already given in these proceedings: MM Constructions (Aust) Pty Limited v Port Stephens Council (No. 1) [2010] NSWSC 241; MM Constructions (Aust) Pty Limited v Port Stephens Council (No. 2) [2010] NSWSC 242 and MM Constructions (Aust) Pty Limited v Port Stephens Council (No. 3) [2010] NSWSC 243.
8The following witnesses gave oral evidence in the Plaintiffs' case at the hearing:
(a) Gary Keith Warnes, Environmental Planner (T119.2-568.12);
(b) Paul Geoffrey Mather, Surveyor (T570.1-607.14);
(c) Milan Maruncic, Second Plaintiff (T617.1-716.27)
(d) Peter Milan Maruncic, the Second Plaintiff's son (T717.1-720.20);
(e) Robert Patrick Westbury, Councillor and later Mayor of the Defendant (T723.14-757.37); and
(f) Robert Richard Dupont, Real Estate Valuer.
9The following witnesses gave oral evidence in the Defendant's case at the hearing:
(a) Amanda Jane Gale, employee and Development Co-Ordinator of the Defendant (T759.1-883.42);
(b) Mary Deborah Laidlaw, Town Planner (T885.1-985.50); and
(c) Nick Cesta, Real Estate Valuer.
10In accordance with contemporary practice in this Court, Mr Dupont and Mr Cesta, the parties' expert valuation witnesses, gave their oral evidence concurrently (T988.8-1035.25).
Use of Mr Warnes' Evidence on the Voir Dire
11A voir dire was conducted following objection by the Defendant to certain aspects of Mr Warnes' evidence, chiefly concerning his ability to give admissible expert opinion evidence in the proceedings. Mr Warnes gave evidence on the voir dire (T190.48-221.28).
12I subsequently overruled the objection: MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 3) . At [49] of that judgment, I noted that evidence on a voir dire in a civil proceeding without a jury is, when taken, evidence in the proceeding unless some order is made qualifying its status or significance under ss.135 or 136 Evidence Act 1995 .
13Accordingly, and with the parties' consent, Mr Warnes' evidence on the voir dire was admitted as evidence in the proceedings generally (T335.15).
Affidavits, Expert Reports and Other Documentary Evidence
14The Plaintiffs read and relied upon the following affidavits at the hearing:
(a) affidavit of Gary Warnes sworn 15 August 2009 (Exhibit C);
(b) affidavit of Gary Warnes sworn 20 April 2010 (Exhibit N);
(c) affidavit of Milan Maruncic sworn 20 May 2009 (Exhibit P);
(d) affidavit of Milan Maruncic sworn 16 May 2010 (Exhibit Q);
(e) affidavit of Peter Milan Maruncic sworn 24 July 2010 (Exhibit R); and
(f) affidavit of Robert Patrick Westbury sworn 15 April 2010 (Exhibit T).
15The Defendant read and relied upon the following affidavits:
(a) affidavit of Amanda Gale sworn 10 November 2009 (Exhibit 1);
(b) affidavit of Amanda Gale sworn 25 June 2010 (Exhibit 14).
16With respect to town planning issues, the Plaintiffs tendered an expert witness report of Mr Warnes dated 16 April 2010 (Exhibit L). The Defendant tendered an expert witness report of Deborah Laidlaw dated 7 July 2010 (Exhibit 18).
17A separate folder containing the expert reports of the parties' valuation witnesses was tendered (Exhibit V). This relevantly contained the following documents:
(a) Valuation Report of Robert Dupont dated 28 July 2009;
(b) Addendum to Valuation Report of Robert Dupont dated 3 March 2010;
(c) Valuation Report of Nick Cesta dated 11 November 2009; and
(d) Joint Valuers' Report of Robert Dupont and Nick Cesta dated 28 June 2010.
18A large volume of documentary evidence including correspondence, plans and diagrams was also tendered. I will refer to specific parts of the documentary evidence as necessary in the course of this judgment.
19At the close of evidence on 23 September 2010, I adjourned the proceedings to allow the parties time to exchange written submissions. Counsel made closing addresses on 6 and 7 December 2010. By that time, both parties had furnished to the Court comprehensive written submissions in chief and in reply.
[5]
Parties to the Proceedings
20The Defendant's written submissions raised a preliminary issue concerning the identity of the parties to the litigation. I will deal with it briefly.
21At all material times, the Second Plaintiff, Mr Maruncic, was the sole director and shareholder of the First Plaintiff, MM Constructions (Aust) Pty Limited. The First Plaintiff was the developer of the Church Street site.
22It is sufficient to observe, for present purposes, that Mr Maruncic had at least one other company of a similar name, of which he was also the sole director and shareholder. A number of communications to the Defendant in respect of the modification application were purportedly made on that company's behalf. It was not disputed that Mr Maruncic was the registered proprietor of the Church Street site (Exhibit E, Tab 41), and was the applicant identified on both the Application Form for Development and the original development consent (Exhibit 1, Tabs 1 and 9).
23At paragraphs 3-6 of its principal written submissions dated 21 October 2010, the Defendant pointed to the fact that Mr Maruncic's other company is not a party to the proceedings, with a question raised as to the person or entity on whose behalf he was lodging documents and communicating with the Defendant. Without more, the submission seeks to raise a question whether the correct parties have been joined to the proceedings and their entitlement to relief. The Plaintiffs note that no such matter was pleaded in the Defendant's Amended Defence (Plaintiffs' written submissions in reply, paragraph 3).
24I do not consider that this issue has any legal or practical effect upon the determination of the proceedings. I accept the Plaintiffs' submission that Mr Maruncic, as sole director and shareholder of both companies concerned, was the person entitled to any monies generated from development of the Church Street site. He is an appropriate party. I am satisfied, as well, that the First Plaintiff is an appropriate party to the proceedings.
[6]
The Environmental Planning Statutory Scheme and Relevant Instruments
25It is appropriate at this point to identify certain provisions of the EPA Act and planning instruments relevant to these proceedings.
26The development application and assessment process is governed by Part 4 EPA Act. The introductory note to Part 4 provides a convenient overview of how applications are dealt with, and the interaction between the various types of planning instruments. The note states:
"Note. The environmental planning legislation comprises 3 elements, namely, this Act, the environmental planning instruments and the regulations made under this Act. The legislative scheme for environmental planning control is, broadly speaking, distributed between the 3 elements as follows:
(a) This Part of the Act, Part 4, lays the foundation for the legislative scheme. It contains the major concepts and addresses the major matters of principle.
(b) The environmental planning instruments identify particular forms of development according to the threefold classification that is established by Division 1 of this Part. They also determine whether development is exempt development as referred to in section 76 (2) or complying development as referred to in section 76A (5).
(c) The regulations contain much of the detail of the various processes that, having regard to the nature of the proposed development, lead to the granting of development consent. They also largely determine whether development is designated development."
The EPA Act
27Section 5 EPA Act describes the objects of the Act as follows:
"5 Objects
The objects of this Act are:
(a) to encourage:
(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,
(ii) the promotion and co-ordination of the orderly and economic use and development of land,
(iii) the protection, provision and co-ordination of communication and utility services,
(iv) the provision of land for public purposes,
(v) the provision and co-ordination of community services and facilities, and
(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and
(vii) ecologically sustainable development, and
(viii) the provision and maintenance of affordable housing, and
(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and
(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment."
28Development applications are made to and determined by a "consent authority" : s.78A EPA Act. A consent authority is either the council having the function to determine the development application; or may be a specified Minister, the Planning Assessment Commission, a joint regional planning panel or public authority if so specified by a provision of the EPA Act, the regulations or an environmental planning instrument: s.4 EPA Act.
29Section 79C EPA Act deals with the evaluation of a development application. Section 79C(1) sets out those matters which a consent authority is to consider in determining whether to grant development consent. It is in the following terms:
"(1) Matters for consideration - general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest."
30An environmental planning instrument may require a consent authority to obtain the concurrence of another person before it grants consent to a development application: s.79B EPA Act. For example, the concurrence of the Department of Planning or the Director-General may be required unless the consent authority determines to refuse to grant development consent. Part 6 Division 2 Environmental Planning and Assessment Regulation 2000 ( "EPA Regulation" ) sets out procedural requirements relating to the process of obtaining concurrence.
31Part 4 Division 7 EPA Act deals with certain matters arising once development consent has issued in respect of a development application. This includes s.96, the construction and application of which forms a significant issue in these proceedings.
32Section 96 provides that a consent authority may modify its consent to a development application in certain circumstances. It is in the following terms:
"96 Modification of consents - generally
(1) Modifications involving minor error, misdescription or miscalculation
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6), section 96AB and Division 8 do not apply to such a modification.
(1A) Modifications involving minimal environmental impact
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the proposed modification is of minimal environmental impact, and
(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1), (2) and (5) do not apply to such a modification.
(2) Other modifications
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.
(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified."
33Section 96(6) EPA Act is an important provision in the context of this case. Section 96(6) provides:
"(6) Appeals
An applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal."
34On appeal to the Land and Environment Court under s.96(6) EPA Act, the Court has all the functions and discretions of the relevant consent authority (here, the Defendant): s.39(2) Land and Environment Court Act 1979 . Accordingly, a dissatisfied applicant, who is faced with a council which fails to determine a s.96 application within 40 days, may take the matter out of the council's hands by appeal under s.96(6), leading to the Court becoming the decision maker on the application.
35In due course, it will be observed that the Plaintiffs did not seek to utilise this avenue of appeal at any time after it became available. What flows from this approach will be considered later in the judgment.
Relevant Planning Instruments
36Part 3 Division 2 EPA Act permits the Governor to make environmental planning instruments for the purpose of environmental planning by the State: s.37(1) EPA Act. These are called State Environmental Planning Policies, and cover a wide range of matters.
37"State Environmental Planning Policy No 1 - Development Standards" ( "SEPP1" ) is relevant to these proceedings. The object of SEPP1 is as follows:
"This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act."
38Clause 6 SEPP1 permits a person to make a development application supported by a written objection to compliance with a development standard on the basis that it is unreasonable or unnecessary in the circumstances. If the consent authority is satisfied the objection is well-founded and is of the opinion that granting consent to the development is consistent with the objects described at [37] above, the consent authority may, with the concurrence of the Director, grant consent to the development application: Clause 7 SEPP1.
39Now repealed, Part 3 Division 3 EPA Act provided for the making of environmental planning instruments for regional areas ( "REPs" ). Relevant to these proceedings is the Hunter Region Environmental Plan 1989 ( "HREP" ).
40Part 3 Division 4 EPA Act provides for the making of environmental planning instruments for local areas ( "LEPs" ). Relevant to these proceedings is the Port Stephens Local Environmental Plan 2000 ( "Port Stephens LEP" ).
41Part 3 Division 6 EPA Act provides for the making of development control plans ( "DCPs" ) by a relevant planning authority, including councils. DCPs may make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument (s.74C(1)(a)), or to specify additional criteria a council is to take into account when ordering a person to do or not do certain things with respect to a development as provided for in Part 6 Division 2A EPA Act (s.74C(1)(d)). The "Port Stephens Development Control Plan PS1 - Urban Housing and Dual Occupancy Controls" , effective 1 May 2003 ( "Port Stephens DCP" ), is relevant to these proceedings.
42Each of the HREP, Port Stephens LEP and Port Stephens DCP make provision for height, floor space ratio and density restrictions on developments, and in certain circumstances require the concurrence of the Director before a development consent may be granted.
[7]
Factual Matters
43I turn now to the facts of the case. In a sense, there are limited areas of factual dispute in these proceedings. A number of the principal arguments were directed to the findings which ought be made by reference to the undisputed documentary evidence, taken in conjunction with the oral evidence, and what conclusions ought be reached concerning the elements of the causes of action pleaded by the Plaintiffs.
44As will be seen, I have set out detailed extracts from contemporaneous documents. I have taken this course, in particular, because the Plaintiffs contend that Ms Gale, an officer of the Defendant, acted with intent to harm the Plaintiffs and that such a conclusion should be inferred from all the circumstances. To assess a serious allegation such as this, an examination of the contemporaneous documentations is especially appropriate.
45The following recital may be taken as my findings of fact, subject to any areas of dispute where I will identify the dispute and express my findings. I make further findings, as well, later in the judgment when considering the elements of the causes of action upon which the Plaintiffs sue.
46Mr Maruncic was born in 1934. He was 75 years' old in May 2009. He came to Australia in 1958 from Croatia, where he was a qualified mechanical fitter and had studied architecture.
47After his arrival in Australia, Mr Maruncic obtained his real estate licence. From 1967 to 1977, Mr Maruncic operated a real estate and development business in the Cabramatta area of Sydney, and later continued similar activities in and around Sydney's Northern Beaches.
48Mr Maruncic moved to Nelson Bay in 1987. He purchased the adjoining properties that comprise the Church Street site for approximately $325,000.00 and $265,000.00 respectively. Mr Maruncic lived at 11 Church Street, Nelson Bay until it was demolished in 2003.
49Mr Maruncic commenced a bakery business in Nelson Bay, which proved to be quite successful. Both he and his son worked at the bakery. When his son had health problems, Mr Maruncic sold the business because his primary interest was real estate and property development.
50I am satisfied that Mr Maruncic was a successful businessman who had worked in a range of fields, chiefly in the area of real estate and property development.
51Between 1999 and 2000, Mr Maruncic commenced planning the design and drawings for the Church Street site, which he intended to name "Milan Towers" . The original design was for a twin-tower, 25-luxury apartment development.
52"Milan Towers" was to be a reflection of Mr Maruncic's life work and achievements. Subsequent correspondence from Mr Maruncic to the Defendant frequently made reference to his project as an "exceptional" and "unique" development in the Port Stephens area (see, for example, Exhibit P, Tabs 10-11).
Approval of and Early Construction at the Church Street Site - "Milan Towers "
53On 6 March 2000, Mr Maruncic submitted a development application to the Defendant for the construction of "Milan Towers" , being two five-storey residential buildings at the Church Street site (Exhibit 1, Tab 1). At their highest point, the buildings were 15.7 metres above natural ground level ( "NGL" ) (Exhibit 1, Tab 6).
54Clause 58(1) HREP required the concurrence of the Director in order for consent to be granted in respect of any development application for the erection of a building over 14 metres in height. Accordingly, the Defendant wrote to the Department of Urban Affairs and Planning on 17 May 2000 requesting Director's concurrence in respect of "Milan Towers" (Exhibit 1, tab 7). The Director's concurrence was granted on 22 May 2000 (Exhibit 1, Tab 8).
55On 29 May 2000, the Defendant approved the application, subject to conditions. The Defendant's approval was for 25 medium-density residential units (Exhibit P, Tab 1) in accordance with the plans approved, which provided for a maximum height of 15.7 metres.
56In or about May 2002, demolition work commenced at the Church Street site. In September 2002, Mr Maruncic purchased a crane and other equipment necessary to begin "Milan Towers" , with construction commencing soon after.
57In March 2003, a stop-work order was placed on development at the Church Street site due to complaints by the owner of an adjoining property. Thereafter, the adjoining property owner obtained an injunction prohibiting further work on the Church Street site. The injunction remained on foot for about 18 months, until it was lifted in December 2004.
58Between 2001 and 2005, Mr Maruncic lodged eight development modification applications with the Defendant pursuant to s.96 EPA Act in respect of the Church Street site. After receiving and considering objections from adjoining property owners and others, the Defendant granted its modified consent to each application, in most instances subject to conditions. Consent was granted on the following dates:
(a) Modification 1 - 17 April 2001 (Exhibit 1, tab 15);
(b) Modification 2 - 18 June 2001 (Exhibit 1, tab 18);
(c) Modification 3 - 11 October 2001 (Exhibit 1, tab 22);
(d) Modification 4 - 18 February 2002 (Exhibit 1, tab 25);
(e) Modification 5 - 26 August 2002 (Exhibit 1, tab 30);
(f) Modification 6 - 11 September 2003 (Exhibit 1, tab 34);
(g) Modification 7 - 10 February 2004 (Exhibit 1, tab 37); and
(h) Modification 8 - 21 April 2005 (Exhibit 1, tab 40).
59Mr Maruncic said these modifications were "minor changes to the aesthetic and engineering details of the original plans" . He stated that their purpose was to beautify the building and included changes to the balconies, windows and the building's lift well (Maruncic affidavit, 20 May 2009, page 5).
60A number of the modifications listed at [58] above included increases in the height of "Milan Towers" . By 21 April 2005 (Modification 8), the Defendant had consented to a maximum height of "Milan Towers" of approximately 18 metres. Although the plans submitted with Modification 8 (Exhibit 1, Tab 40a) do not contain the 18 metre figure (as heights are expressed in reduced levels ( "RL" )), a height of 18 metres appears to be common ground as reflected by Mr Maruncic's letter to Ms Gale and the minutes of the November 2005 Development Assessment Panel ( "DAP" ) (Exhibit E, Tabs 9 and 10).
The Donald Street, Nelson Bay Developments - Especially "Cote D'Azur "
61At the same time as the Defendant was dealing with Mr Maruncic's development of the Church Street site, a number of other development applications were made in respect of adjacent properties in Donald Street, Nelson Bay.
62In August 2002, the Defendant approved a development application in respect of 65-67 Donald Street, Nelson Bay for 15 serviced apartments (Exhibit 1, Tab 107). That development has not been completed and the site remains vacant (Exhibit 1, Gale affidavit, 10 November 2009, paragraph 110).
63In March 2004, the Defendant received a development application in respect of 61 Donald Street, Nelson Bay for construction of a seven-storey building known as "Cote D'Azur" . The proposal consisted of commercial premises, nine tourist units, 45 residential units and parking.
64The original development application for "Cote D'Azur" was approved on 18 February 2005 (Exhibit 1, Tab 109). Between January and December 2006, the Defendant consented to four development modification applications in respect of it (Exhibit 1, Tab 110). Construction of "Cote D'Azur" was completed in February 2007.
65The Department of Planning provided concurrence to the Defendant's consent to construct "Cote D'Azur" on 4 January 2005 and, on 31 October 2005, gave concurrence to a s.96 application permitting a maximum height of 17 metres NGL, an increase in permissible height under Clause 58 HREP (Exhibit 1, Tab 104, pages 38-39; Exhibit 15).
66In October 2004, the Defendant received a development application in respect of 63 Donald Street, Nelson Bay for construction of 14 residential units, three retail shops and parking. The Defendant approved the application on 30 August 2005 (Exhibit 1, Tab 111).
67Mr Maruncic was concerned that the size, height and bulk of the various developments in Donald Street, Nelson Bay would have a significant detrimental effect on his "Milan Towers" project, particularly in terms of blocked views and other design issues such as privacy and light. He submitted formal objections (to the Defendant) to the original development applications concerning both "Cote D'Azur" and 65 Donald Street, Nelson Bay.
68Mr Maruncic considered that the Donald Street, Nelson Bay developments had the potential to compromise the financial viability of "Milan Towers" . He decided that in order to make his development viable, it was necessary to increase the height of "Milan Towers" and to increase the number of units.
Mr Maruncic's Dealings with the Defendant in 2005 Concerning "Milan Towers "
69Mr Maruncic first wrote to the Defendant on 8 February 2005 requesting approval to increase the height of "Milan Towers" and to increase the number of units from 25 to 41 (Exhibit P, Tab 10).
70At this time, Ms Amanda Gale was employed by the Defendant as its Development Co-Ordinator. Ms Gale commenced employment with the Defendant in 1991. She served in various administrative and customer support roles from 1991 to 1998. She worked as a student (unqualified) Development Planner from 1998 to 2001. From 2001 to 2003, Ms Gale served as a Development Planner, and then as a Senior Development Planner in 2003 and 2004. She was appointed as Development Co-Ordinator in December 2004. Ms Gale holds a degree of Bachelor of Urban and Regional Planning from the University of New England.
71Ms Gale's involvement with Mr Maruncic and the "Milan Towers" project had begun when the Defendant received an application, and subsequently approved the application in respect of Modification 8 (T764.26) (see [58] above).
72The evidence reveals that Ms Gale had a substantial planning application workload in the period 2005 to 2007 (Exhibit 17). This should be kept in mind when considering complaints by the Plaintiffs concerning occasional delays in her responding to communications from them.
73In or about May 2005, Mr Maruncic engaged Gary Warnes to assist him in furthering the development of "Milan Towers" .
74Mr Warnes is an experienced town planner. He worked for various councils or with the Department of Planning between 1971 and 1997. Between 1989 and 1992, he was Deputy Regional Manager Hunter and Central Coast Regions with the Department of Planning (NSW). Between 1992 and 1997, he was Planning Services Manager/Strategic Planning Manager with the Defendant. In 1997, he left his employment with the Defendant to take up a position in the private sector as a planning consultant. It has not been suggested that Mr Warnes left his employment with the Defendant in 1997 in other than amicable circumstances. Between 1997 and 2002, he worked as a senior environmental planner with a private consultancy business and, since 2002, he has been an environmental planner and director of Synergy Environmental Planning Pty Limited ( "Synergy" ).
75As mentioned at [8] and [11]-[13] above, Mr Warnes gave evidence in the Plaintiffs' case. His evidence concerned his involvement in relevant events between 2005 and 2007 and, over objection, opinion evidence on a range of matters.
76On 23 June 2005, Mr Maruncic and Mr Warnes addressed a meeting of the Defendant's DAP in relation to the proposed further modifications to "Milan Towers" . Ms Gale, and other representatives of the Defendant, were present at the meeting. The minutes of the meeting record the following (Exhibit 1, tab 41):
"1. Interviews
23 June 2005
9:30am - 10:00am
i. Gary Warnes, Michael Maruncic
...
Proposal consists of both increasing the number of units and the overall height of Block A and B.
Increase the number of units to 36 units (Block A - 16 units & Block B - 20 units) by converting some existing 3 bedroom units into 2 bedroom and one bedroom units.
Propose to add an additional level raising overall height by approximately 2.5 metres.
*Land is zoned 2(c) Residential pursuant to Port Stephen's [sic] Local Environmental Plan 2000.
*Height - The proposal to increase the height by approximately 2.5 metres is considered a considerable increase and is unlikely to be supported. A SEPP1 objection to height was lodged with original Development Application and therefore, a further modification / increase in height is possible via a Section 96 modification to development consent. However, given the extent or increase in height, Council considers this would warrant a new development application.
*Density - The proposal to increase the density of this development (from 25 units to 36 units) is considered a considerable increase and is unlikely to be supported. It does not appear that the original development application included a SEPP 1 for density, therefore, if the current density approved on this site is at its limit, then Council cannot accept lodgement of a Section 96 modification to Development Consent that includes a SEPP 1 objection to density. A new Development Application would be required in this instance.
*Notwithstanding the above individual comments regarding height and density, it is advised that the proposed changes in their entirety (ie. increase in height and unit numbers) would not be considered to be substantially the same development. Therefore, on this basis a new development application would be required.
*The land is within State Environmental Planning Policy No. 71 - Coastal Protection Policy (SEPP 71). Given Council considers the changes require the lodgement of a new application, the Minister would be the consent authority. Any new development application is to be lodged with the Department of Infrastructure Planning & Natural Resources.
...
*The applicant should be aware that the completeness and quality of the application could impact on assessment time. Any incomplete or insufficient applications may not be accepted and returned to the applicant."
77Mr Warnes gave evidence that it was Ms Gale who made the comments listed in bullet form in the minutes, being the Defendant's position in respect of Mr Maruncic's proposal (T127).
78In May 2004, the Plaintiffs mortgaged the Church Street site to Australian Secured Investments Limited ( "Aussec" ). On 22 July 2005, Davis Lawyers, on behalf of Aussec, served notices on the Plaintiffs under s.57(2)(b) Real Property Act 1900 and under the Corporations Act 2001 demanding payments arising from default under the mortgage (Exhibit 24).
79In September 2005, Mr Maruncic and Mr Warnes had a "parting of the ways" (T128.42). Mr Maruncic wrote to the Defendant on 11 October 2005 advising that Mr Warnes was no longer involved with the "Milan Towers" project (Exhibit 1, Tab 42), and provided the name of another person who would assist with the modification application, Mr Steve O'Connor of Environmental Resources Management Australia ( "ERM" ).
80The evidence reveals that between about June and December 2005, Mr Maruncic was also in contact with the Department of Planning concerning his proposed modifications to "Milan Towers" . Mr Warnes had advised Mr Maruncic that he did not consider the proposed modifications to be within the scope of s.96 EPA Act and that a new development application would be required, with the Minister for Planning being the relevant consent authority in accordance with SEPP71 (Exhibit P, Maruncic affidavit, 20 May 2009, paragraph 26; T669-670).
81Mr Warnes arranged a meeting between officers of the Department of Planning and Mr Maruncic at the Church Street site in July 2005 (T671). In cross-examination, Mr Maruncic said that the Department of Planning advised him of two options to progress his proposals, either write to the Department of Planning or obtain a refusal to the proposed modifications from the Defendant (T671).
82In October 2005, Mr Maruncic took advice from Mr O'Connor of ERM. Mr O'Connor had prepared the development application for "Cote D'Azur" and Mr Maruncic thought that this may assist him (T673). Mr O'Connor advised Mr Maruncic that a Part 3A project plan would have little prospect of success. Mr O'Connnor suggested that the right approach would be to do a study reviewing the controls (such as floor space ratio, height and density) but that "would take 12 months and would be expensive with no certainty of success" (Exhibit 25). Mr Maruncic terminated the services of Mr O'Connor in November 2005 (Exhibit 25; T673-674).
83On 3 November 2005, the Department of Planning wrote to Mr Maruncic stating that his proposal "may be a matter to be dealt with under Part 3A" of the EPA Act. The letter then outlined a number of steps Mr Maruncic would be required to take, including submission of certain information to the Department of Planning, before an application for the Minister's consent could be made (Exhibit E, Tab 7). That information included the following:
"Pursuant to clause 2 of Schedule 2 of the Major Projects SEPP, it is necessary to provide information on the proposed maximum height of the building or structure. Should the proposed height contravene the height standard stipulated in any environmental planning instruments such as the Local Environmental Plan, it is necessary to indicate your intention to seek a SEPP 1 objection."
84On 15 November 2005, the members of the Strata Plan for 63-65 Donald Street, Nelson Bay wrote to the Office of Sustainable Development Assessment and Approvals confirming that they had "no objection to the amendments to height and density that are proposed by Mr Maruncic" (Exhibit E, Tab 8). Mr Maruncic had arranged for that letter to be prepared as, at that time, he was intending to proceed with his application through the Department of Planning (T676.24).
85On 22 November 2005, Mr Maruncic wrote to the Defendant requesting Council's support for his proposed modifications to "Milan Towers" . The letter said (Exhibit P, Tab 11):
"Dear Ms Gale
Re: Development No 16-2000-380-1. For 25 Medium Density Units.
Property description Lot 18 SEC:7 DP:8611, Lot 17:SEC:7DP:8611
Over the past three years I have made and have had approved, several changes to my plans.
These changes were made to enhance the visual appearance of the buildings and to improve the interior design to make it a very different and unique development.
My original development was for very large apartments, some having up to five bedrooms. Since I have become aware of the design of the developments which surround my property, which have been approved by Council, I have had to re think [sic] the concept of my development.
The buildings which have been approved will have an enormous adverse effect on my development. The result will be huge losses in value of four floors of apartments on block B and three floors of apartments on block A.
Owing to the designs of adjoining developments, especially the one that is going to be built on the boundary, I am forced to reduce the size of my apartments and increase the number of my apartments. I am endeavouring to end up with a total of 43 apartments.
...
I am endeavouring to be able to increase the height of my buildings by approximately five metres and I will reduce the impact and shadow from the original design. Part of the height increase is an increase of ceiling height of 100mm per floor, to allow for air conditioning ducting. This is an increase from the last amendment.
...
I am seeking full support from Council and or the Ministers [sic] Department. I firmly believe that such a unique development should be supported because it is a totally new concept in urban living.
Council may not have a code to deal with this private owners resort. I feel that it should be dealt with as a special development, or, pass it onto the Ministers [sic] Department with no objections.
...
I believe that because of surrounding building approvals and the impact it will have on my project, I need this new design and the number of apartments to cover losses. It is going to cost an extra $1.7m more to build my project as against a basic / standard development of the same size and dimensions.
...
I have taken an enormous risk preparing new plans and engineering prior to approval, believing I will get the support to bring Port Stephens a higher quality of development.
I would appreciate very much if you would advise me today or as soon as possible if Council will, or, will not, support the changes I propose.
Yours faithfully,
Michael (Milan) Maruncic"
86On 24 November 2005, Mr Maruncic addressed another meeting of the DAP. Again, Ms Gale and other representatives of the Defendant were present at the meeting. The minutes record the following (Exhibit 1, Tab 45) (emphasis added):
"Applicant now considers changes to the height (approved approx. 18m, proposed 23.5m), density (proposed increase to 43 units), internal design of the units and some faade changes with the building footprint remained unchanged. A new Development Application is required as the changes fall outside the scope of a Section 96 modification to original consent. The Department of Planning would be the consent authority. The Department have requested the applicant make preliminary representations to Council and provide these comments with the development application .
...
*In regards to the basis for lodging a new development application (being proposed changes to height and density), Council considers these changes to be major departures from both the original approved development application, the Tall Building Study, which formed the foundation for the height limit within the area and Council's Local Environmental Plan 2000 (ie. Clause 19 development standards). Therefore, Council would not support such variations and inconsistency with Council's policy .
In regards to Council's Local Environmental Plan 2000, Clause 19 - Urban Housing developments in the Residential 2(c) Zone include: Minimum Site Area per Dwelling of 150m2, Floor Space Ratio of 1:8:1 and Maximum Height Limit of 15.0m.
Whilst Council supported variations to both height and density under the original application, a further variation and extent of variation to both height and density is considered unacceptable as stated above ."
87By letter of the same date (24 November 2005), Mr Maruncic again wrote to Ms Gale wanting to "discuss a couple of small points" following the meeting (Exhibit E, Tab 9). The letter said:
"When (Port Stephens) Council calculate their height measurements, they measure from the floor of the basement to the top of the roof.
When the Department of Environment and Planning calculate their heights they are measured from the original land level to the top of the roof.
Therefore, there is a difference of one floor level.
According to Council my last amended plans are two floors above and according to Dept of Land & Environment I am only one floor higher.
My original approval from the basement to the top of the roof was 18.3 m, my present height is 23.5 m.
So the difference is 5.2m, or, according to the Dept of Land & Environment, 2.7m higher than what I had approved earlier.
I would appreciate very much Council's favourable support with your report from our meeting."
88In the meantime, Mr Maruncic remained in contact with the Department of Planning. He wrote to the Department of Planning again on 12 December 2005 attaching a copy of the minutes of the Defendant's DAP meeting on 24 November 2005. He requested an appointment to discuss his proposals for "Milan Towers" (Exhibit E, Tab 10).
89In cross-examination, Mr Maruncic said that during his contact with the Department of Planning, he was given oral advice that his proposed modifications could be dealt with by the Defendant under s.96 EPA Act, upon which he relied (Exhibit P, Maruncic affidavit, 20 May 2009, paragraph 31; T677-678).
90By letter dated 23 January 2006, Mr David Mutton of the Department of Planning stated to Mr Maruncic (Exhibit E, Tab 11):
"I refer to your recent preliminary enquiries regarding a proposed development at 11-13 Church St Nelsons [sic] Bay, Port Stephens LGA.
The Department notes that consent for an urban housing development (25 units and 18m) has been granted by Port Stephens Council over this land (20 May 2000), a total of 8 minor s96 applications have been lodged with Council and works have commenced on site. The Department also notes that the proposed changes to this development have been established by Port Stephens Council (Minutes - Port Stephens Council Development Assessment Panel 24 November 2005) as a substantial departure from the current consent and a new approval is to be sought.
Given the scope of the proposed changes to your development the proposal may be a matter to be dealt with under Part 3A of the Environmental Planning and Assessment Act. Given the proposed changes include further variations to the development standards in the Port Stephens LEP and relevant policies for the area and the original consents predate current design standards you are advised that the Department, in any assessment should the Minister form the opinion that the project be deemed a Major project, is likely to examine the merits of the whole development proposal and apply current development standards. You are advised to seek planning advice and clarify whether your building, in its entirety, will satisfy the provisions of instruments such as SEPP 1, SEPP 65 and BASIX."
The letter continued to indicate a number of additional processes which would arise if the matter was to be taken further.
91Mr Maruncic agreed in cross-examination that he considered the previous oral advice of the Department of Planning that his proposal could be dealt with under s.96 EPA Act to be very important, and accordingly proceeded anyway to lodge such application with the Defendant (T678).
Formal Lodgement of the s.96 Application - 15 February 2006
92On 15 February 2006, Mr Maruncic attended the offices of the Defendant to formally lodge a s.96 modification application in respect of his proposed changes to "Milan Towers" (Exhibit P, Tab 15) ( "the s.96 application" ). The s.96 application proposed the following main amendments to the consent previously granted by the Defendant (Exhibit P, Tab 15; Exhibit 1, Tab 46; Exhibit 1, Gale affidavit, 10 November 2009, paragraph 49):
(a) an increase in the total number of units from 25 to 41;
(b) an increase in the maximum height of the development by approximately five metres (from approximately 18 metres to approximately 23 metres) to accommodate an increase in the ceiling height of 100 millimetres per floor ;
(c) conversion of the first-floor apartments into parking spaces; and
(d) the addition of balconies to the southern side.
93Ms Gale met Mr Maruncic at the counter when he lodged the s.96 application. In cross-examination, Mr Maruncic accepted that a conversation took place with Ms Gale to the following effect (Exhibit 1, Gale affidavit, 10 November 2009, paragraphs 140-141; T683-684):
"GALE: I have major concerns regarding the proposed changes which are a significant departure from the original approval. I expect there will be issues with lodgement of the variations as a Section 96 application as opposed to a new development. What you are proposing is a new development.
MARUNCIC: I am going to lodge the modification application anyway and see how it progresses. I believe in the proposal. I do not want to have to lodge a new development application with the Department of Planning."
94I do not accept Mr Maruncic's evidence in cross-examination that at this time Ms Gale also said to him, among other things, that "Mr Maruncic, I personally will object" (T684.2). Mr Maruncic made no reference to such words being spoken by Ms Gale in either his affidavit or evidence-in-chief, and indeed later conceded that it was some time after the s.96 application was lodged that Ms Gale indicated she would not support his proposal (T684.37-685.15).
95Mr Maruncic and Ms Gale had further conversations following the lodgement of the s.96 application. The content of those conversations are disputed, however, and nothing material turns on their content.
96Ms Gale was the Assessment Officer for the Plaintiffs' development and was responsible for assessing the s.96 application lodged on 15 February 2006 (Exhibit 14, Gale affidavit, 25 June 2010, paragraph 4-5).
97Accompanying the s.96 application lodged on 15 February 2006 were a number of plans dated 1 January 2006 (Exhibit 14, Gale affidavit 25 June 2010, paragraph 9).
98Ms Gale undertook an examination of the application, leading to a view that the application should be refused. Ms Gale proposed to issue a Notice of Intent to Refuse, a non-statutory notice utilised by the Defendant at the time. Before doing so, she decided to seek legal advice.
Ms Gale Seeks Legal Advice - April 2006
99On 10 April 2006, Ms Gale sought advice from the Defendant's legal advisors, Sparke Helmore, regarding Mr Maruncic's s.96 application. In her email to Dianna Grant of Sparke Helmore, Ms Gale wrote (Exhibit B):
"Hi Dianna
In regards to the S.96 I briefly mentioned last week to you which I'm proposing to issue an Intent to Refuse for the following reasons and would like some advice as to whether you think Council has good reason to refuse this modification to the original consent.
The reasons are as follows:-
The extent and nature of proposed modifications are not considered to relate to substantially the same development as the development for which consent was originally granted and therefore, considered outside the scope of a Section 96 modification application pursuant to the Environmental Planning and Assessment Act 1979.
The development does not comply with Council's Minimum Area per Dwelling (ie. density) development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable.
The development does not comply with Council's Height development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable.
The development is contrary to the public interests and expectations, of an orderly and predictable built environment.
Dianna,
The original development consent was issued for 25 Medium Density Units on 29 May 2000. The development was configured in two separate building blocks - Block A & B.
The current S.96 modification relates to:-
an increase in no. of units (from 25 approved) to proposed 41 units (by large front units being converted into two units, some of level 4,5 & 6 units have been changed from 1 & 2 units into 3 units per floor and increase in height / level will provide for remaining extra units).
change in height of minimum 4 metres and up to 5 metres.
changes have affected Block A - 3 floors and Block B - 4 floors
propose to provide adequate visitor parking by removing pre-approved units on the lower levels and replacing them with parking.
a series of new balconies for extra open space have been proposed to Block A & Block B.
The building footprint doesn't actually change, however with added floors/levels and a change in roofline, along with extra balconies I assume to provide open space for additional units contribute to the unacceptable increase in height and density involved in this s.96 modification.
...
Your advice in regard to this matter at your earliest convenience would be appreciated as I'm hoping to finalise and issue the Intent to Refuse (pending your advice) as soon as possible as the applicant is chasing me for a response."
100By letter dated 21 April 2006, Sparke Helmore provided its advice to the Defendant. After setting out the history of approvals and modifications to consent granted in respect of the Church Street site, the advice turned to the interpretation and application of s.96 EPA Act. The advice stated (Exhibit E, Tab 13, paragraph 3.3):
"There is therefore a jurisdictional requirement that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. This means that the formation of Council's opinion as to whether a proposed development can be characterised in a particular way can be challenged in judicial review proceedings in the Land & Environment Court."
101The advice then referred to a number of Land and Environment Court decisions which had considered the meaning of the phrase "substantially the same development" . It then turned to the question whether Mr Maruncic's s.96 application was "substantially the same" , and said:
"3.11 Although the proposal seeks a substantial increase in the number of residential apartments, we do not consider that a quantitative increase in the number of apartments by itself, even when coupled with the increase in the building's height and density, constitutes a radical transformation to the approved development. Unlike in [Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298],the Current Application does not propose the deletion of an essential or material characteristic of the development. The essential nature of the development in the present circumstances remains the same - namely a residential apartment building.
...
3.15 We note that, according to Council's Intention to Refuse, there appears to be valid grounds to refuse the proposed modification on [its] merits. In particular, the Current Application does not comply with Council's height and density development standards.
3.16 Although a modification application might be approved notwithstanding that the development would be in breach of an applicable development standard ... it is still open to Council to refuse [a] modification application on its merits. Accordingly, Council's Proposed Intention to Refuse should include the non-compliance with height and density standards as reasons for refusal.
4 Conclusion
4.1 In our view, and having regard to existing case law, the current Application does not change in a 'material or essential' way the development approved by the Original Consent (as currently modified). We consider that Council would have difficulty supporting an argument before a Court that an increase in the number/height of the apartments constitutes a material or essential change to the approved development. It remains open for Council to refuse the Current Application on the merit grounds - namely non-compliance with height and density standards."
102On 28 April 2006, the Defendant notified Mr Maruncic of its intention to refuse his proposed modifications contained in the s.96 application (Exhibit E, Tab 14). Schedule 1 of the Notice of Intent to Refuse gave the following reasons for the Defendant's intended refusal:
"1. The development does not comply with Council's Minimum Area per Dwelling (ie. density) development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable.
The development does not comply with the Council's Height development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable.
The development is contrary to the public interests and expectations, of an orderly and predictable built environment."
103It should be noted that it was open to the Plaintiffs, from 27 March 2006, to appeal to the Land and Environment Court under s.96(6) EPA Act (see [33] above). At no time, did the Plaintiffs bring such an appeal.
Events from May 2006 to August 2006
104Following receipt of the Notice of Intent to Refuse, Mr Maruncic remained in contact with the Defendant in an attempt to deal with the issues it raised.
105On 23 May 2006, he wrote to the Defendant, listing five amendments to the plans submitted as part of the s.96 application. The amended plans increased the height of the building, but purported to reduce the impact by different roof designs. The letter concluded with Mr Maruncic inviting Ms Gale to meet with him at the Church Street site to "see how much impact Cote D' Azur ... has had on all the properties surrounding it" . He then said (Exhibit 1, Tab 48):
"...The proposed 63 Donald [S]treet development will be the nail in the coffin for my development casting further shadowing and loss of views.
My proposal is the only way to compensate me for this disaster. Your support would be appreciated to stop further proceedings.
Could [t] his [n] ew set of plans please be presented to councillors for approval."
106The amended plans provided on 23 May 2006 included an A0-sized copy of a 3D diagram together with other plans which changed the application to include splaying of the roofs of Blocks A and B to reduce the impact by 950 millimetres to compensate for 100 millimetres ceiling height increases (Exhibit 14, Gale affidavit, 25 June 2010, paragraph 12).
107The plans provided by the Plaintiffs were publicly exhibited by the Defendant from 29 May 2006 to 21 June 2006 (Exhibit 14, Gale affidavit, 25 June 2010, paragraph 39).
108At some point, Mr Warnes, through Synergy, returned to assist Mr Maruncic in the progression of his s.96 application. The evidence is unclear as to whether this occurred in late 2005 or some time after the s.96 application was lodged in February 2006 (Exhibit P, Maruncic affidavit, 20 May 2009, paragraph 37; T129.39-130.6; T674). Nevertheless, it is apparent that by May or June 2006, Mr Warnes was involved in dealing with the issues raised by the Defendant in the Notice of Intent to Refuse.
109On 1 June 2006, Mr Warnes sent an email to Ms Gale stating that he had "left a number of messages at Council over the last few weeks asking if you could contact me" , and that he was unsure if Ms Gale had received the messages because he had not heard from her (Exhibit 5). The email continued with Mr Warnes stating (emphasis added):
"I have reviewed what paperwork Michael has has [sic] given me in relation to his S96 and I am concerned that he has not given you sufficient information to make the application competent as I believe he would have had to give you at least a SEPP No 1 Objection if he is seeking a variation to height, unit yield and density provisions all of which are development standards in Council's LEP.
It does not appear that he has provided neither [sic] a SEPP 1 Objection nor any rationale for his variance of the standards?
Can you please call me..."
110On 5 June 2006, the application was advertised. The Defendant wrote to landowners adjoining the Church Street site, notifying them of the proposed modifications contained in Mr Maruncic's s.96 application (Exhibit 1, Tab 49). The Defendant received a number of objections to the modifications.
111On 1 July 2006, Mr Maruncic lodged further plans (Exhibit 1, Tab 5).
112Mr Warnes wrote to the Defendant on 7 July 2006 attaching various plans, including an A3-sized copy of a 3D diagram (Exhibit 14, Gale affidavit, 25 June 2010, paragraph 14). The letter relevantly stated (Exhibit 1, Tab 51):
"Synergy Environmental Planning Pty Ltd have been engaged by the proponent of the abovementioned development to assist in his application to modify his existing consent to permit the development of the site for an increased number of units beyond that approved by Council.
The proponent is seeking the modification to the consent so as to address the amenity of the future occupants of each of the units which the proponent says has been compromised by the approval of adjoining residential development resulting in a loss of outlook from the proposed units towards Port Stephens.
The modifications sought by the proponent would see an increase in density and a minor increase in height of the proposal so as to compensate for the loss of outlook and solar access to the units bought about as a result of the location of adjoining developments without regard to view corridors or view sharing to the north and east of the proposed development.
It is understood that following upon the application for modification of the consent having been made by Mr Maruncic, East Ward Councillors have called for a report from Council Staff on the relative heights of the developments in the vicinity of the subject land and that such report is likely to be placed before the East Ward Councillors at some time in the immediate future.
To assist the [East] Ward Councillor's [sic] understanding of the relative heights of each of the adjoining developments and that of the proposed modified design for 11-13 Church Street the proponent has prepared the attached plan which demonstrates in both section view (along Church Street) and in three dimensions the relationship between the approved developments in the vicinity of the subject land and the form and height of the proposed modified development as it would relate to those adjoining developments."
113It is apparent that, by this stage, as he was entitled to do, Mr Maruncic was lobbying East Ward Councillors directly in support of the application. Ms Gale was not the sole line of communication between the Plaintiffs and the Defendant.
114That day (7 July 2006), Ms Gale prepared a draft letter to Mr Maruncic providing advice to him in relation to the Defendant's Notice of Intent to Refuse issued on 28 April 2006 (Exhibit E, Tab 16). In the draft, Ms Gale referred to the fact that Mr Maruncic's s.96 application had been "called before Council for determination" , and that East Ward Councillors had requested further information regarding the height of developments in the surrounding area. It then raised a number of concerns for Mr Maruncic to address in respect of his s.96 application. The draft letter was not sent to Mr Maruncic until several weeks later (see [119] below).
115By letter dated 17 July 2006, Mr Warnes again wrote to the Defendant advising that "we have reviewed the plans [being considered by Council] with a view to rectifying the issues you raised in relation to car parking and floor space ratio" (Exhibit E, Tab 17). Mr Warnes also said that the number of units proposed had been reduced by two and provision had been made for an additional seven car parking spaces. Mr Warnes stated that the Plaintiffs would provide a conceptual plan for these changes prior to submission of completed amended plans (Exhibit 14, Gale affidavit, 24 June 2010, paragraph 15).
116On 18 July 2006, Ms Gale issued a memorandum to East Ward Councillors to provide them with the additional information about Mr Maruncic's s.96 application. The memorandum enclosed a table listing details of developments surrounding the Church Street site, including those in Donald Street, Nelson Bay and their various approved heights. The memorandum said (Exhibit E, Tab 18) (emphasis added):
"The Department of Planning have a concurrence role in respect of developments proposing a maximum height (above 15m) pursuant to a Tall Building Clause within the Hunter Regional Environmental Plan 1989. Therefore, a number of the development applications assessed by Council as identified on plan have required the Department's concurrence. In assessing and providing their concurrence to the proposed maximum heights of these buildings, the Department is measuring height from Natural Ground Level only. In contrast, Council is assessing height in accordance with the height definition pursuant to LEP 2000, whereby height is measured from either Natural Ground or Finished Ground Level (whichever is the lower). This in turn results in different maximum heights being established.
As advised previously, the extent of this proposed modification is considered unacceptable primarily in respect to increases in density and building height pursuant to LEP 2000 and relevant DCPs, which in turn raises concern that the development is contrary to the public interest .
The applicant has indicated that they wish to provide additional information to support their application and has requested Council's advice as to the deficiencies of the application and main areas of concern. This written advice is currently being finalised and essentially aligns with the reasons for refusal as outlined in the Notice of Intent to Refuse issued by Council. It is noted, however, that the applicant has been advised that whilst information submitted with the modification is deficient, the main reasons for refusal relating to proposed increase in density and building height are excessive variations, which are unlikely to be capable of justification through submission of additional information .
Recommendation/Conclusion:
Confirmation is sought as to whether the Section 96 modification is required to be forwarded to full Council for full determination .
Alternatively, if able to be determined under delegated authority within the Sustainable Planning Group, the recommendation is maintained that the modification be refused ."
117The Plaintiffs lodged further plans dated 20 July 2006 which referred to the subject development comprising 40 or 41 units (Exhibit 14, Gale affidavit, 25 June 2010, paragraph 16).
118On 27 July 2006, one of the East Ward Councillors, Cr Sally Dover, wrote to Mr Warnes in reply to his letter to the Defendant of 7 July 2006. In the letter, Cr Dover said (Exhibit E, Tab 19):
"We all agree that it is a difficult decision and feel sympathetic towards Mr. Maruncic and his loss of views from his site. I believe we should make some concessions regarding the height but I am sure our community would object to the requested 23 meters [sic] , which is too far above our maximum of 15 meters [sic] .
I am confident that we can come up with a reasonable decision so that Mr. Maruncic ['s] vision for a beautiful yet economically viable development will be achieved."
119On 1 August 2006, Ms Gale sent to Mr Maruncic the letter which she had previously drafted on 7 July 2006. In addition to the matters referred to at [114] above, the letter (as sent) stated (Exhibit E, Tab 20):
"Further, discussions were held with East Ward Councillors and direction was given that reductions in height and density were required as the proposed increases in their current form were considerable given Council's requirements.
In response to your consultant's concerns that the application is at this time incomplete and that further information will be prepared for Council's assessment and consideration, the following issues or concerns are raised which need to be addressed."
120It is apparent that, by this time (if not earlier), Councillors were practically and directly involved in the process. This was not a situation where Councillors waited passively to hear only from Ms Gale on the issue. There were direct communications between Mr Maruncic and Mr Warnes and the Councillors, as well as Ms Gale. The question as to who would be the ultimate decision maker within the Defendant (the Council itself or an officer under delegation) appears to have been an open question. This aspect is significant given the Plaintiffs' submission (contested by the Defendant) that Ms Gale was the person exercising relevant statutory duties (including effective decision making) with respect to the s.96 application. As will be seen, my finding on the probabilities is that the Council ultimately refused the application, and certainly not Ms Gale acting under delegated authority (see [271] below).
121The matters identified by Ms Gale for the Plaintiffs to address as at 1 August 2006 were:
"1. Lack of documentation submitted with the S.96 Modification Application - Council received a modification application form completed together with a set of plans and covering letter. Detailed documentation is required which clearly outlines all of the proposed amendments the subject of this Section 96 modification application, with reasoning and justification for these amendments clearly outlined. This documentation should also address both State and Council requirements and address potential impacts resulting from proposed amendments on adjoining properties.
undesirable precedence within Nelson Bay and the LGA generally, if these amendments were to be supported by Council and the reason of increasing the height to retain a view, should not be justification for supporting such departures from Council's requirements;
streetscape and character of the area will be transformed if no parameters are enforced in respect to height and density;
inconsistent with the objectives and development standards of LEP 2000 and clear overdevelopment of the site given the proposed variations;
increase in traffic re: entrance and egress to Church Street in an area / street which is already extremely busy, especially during holiday periods which raises concern in respect to traffic safety and parking capacity;
lack of information on potential overshadowing of surrounding properties;
increase in noise and privacy impacts from these proposed amendments;
potential further damage to surrounding properties from the existing approved development and any further development approved on this site via amendments proposed, is of concern given previous evidence of damage to property.
Council request that the issues as outlined above raised in submissions be addressed in the documentation submitted to Council in support of the Section 96 modification.
Shadow Diagrams - as raised in the submissions received, no documentation has been submitted in regards to potential overshadowing of adjoining properties from the proposed increase in building height."
122Ms Gale's letter concluded (emphasis added):
"In conclusion, it is noted that Council at this stage is yet to undertake referral to the Department of Planning for concurrence given both the initial assessment undertaken which resulted in variations considered unacceptable, and further due to your advice that further information may well be submitted for assessment and consideration by Council in making a final determination of this modification application."
123It is apparent from Ms Gale's memorandum to East Ward Councillors dated 18 July 2006 that, at that time she had formed the view that the concurrence of the Department of Planning may be required before Mr Maruncic's proposed amendments could be approved by the Defendant pursuant to s.96. This view was communicated to Mr Maruncic in Ms Gale's letter dated 1 August 2006, which she confirmed in cross-examination (T806.20).
124I accept the Plaintiffs' submission (which does not appear to be challenged by the Defendant) that this was the first occasion upon which Ms Gale communicated her view about concurrence to Mr Maruncic. A significant issue in these proceedings, particularly concerning the Plaintiffs' claim in negligence, is whether such a view was reasonable and that of a competent town planner in the circumstances. I will return to this issue when dealing with the Plaintiffs' causes of action. I observe, however, that Ms Gale stated that Department of Planning concurrence had been given for a s.96 application concerning "Cote D'Azur" and that this influenced her view that concurrence would also be needed for the Plaintiffs' application. It is the case that Department of Planning concurrence was given on 31 October 2005 for a s.96 application concerning "Cote D'Azur" (Exhibit 15).
125On 4 August 2006, Mr Warnes wrote to Mr Maruncic to give him advice in response to the issues raised in Ms Gale's letter dated 1 August 2006. Mr Warnes discussed the need to review final plans before submitting them to the Defendant, and to accurately quantify the variations to development standards (Exhibit E, Tab 21), in particular that it "is paramount that your design review addresses the height issue" . Mr Warnes' letter also sheds light upon the Plaintiffs' approach to the application, namely to lobby Councillors whilst, at the same time, dealing with Council officers:
"Whilst Council's staff has displayed negativity to your proposal your advice that the Ward Councillors support your proposal in principle has been displayed by their intervening with the determination of the matter by Council's staff and you must ensure that this support continues ..."
126On 22 August 2006, Mr Warnes wrote a detailed submission on behalf of Mr Maruncic to Ms Gale, addressing a number of the issues raised in her letter of 1 August 2006. Mr Warnes stated that the original s.96 application sought approval for 43 units, with a maximum height of 25 metres NGL. He then said (Exhibit E, Tab 22) (emphasis added):
"Following upon discussions with both Council Staff and East Ward Councillors the S96 modification has now been reduced to seek approval to 40 units, a maximum height above natural ground level of 23.15 metres (Building A) and 23.1 metres (Building B) excluding the lift over run . The design of the upper floors has also incorporated a stepping in of the building at its upper levels to reduce its scale and bulk.
The interpretation of the building from adjoining public places will not allow for a reading of the height of the buildings as 23 metre structures as they are set into the site below the street level such that Building A, the building set highest on the land, would read as a building of some 21.9 metres. It must be remembered that the measurement of height for the purpose of development is taken from natural ground level and not street level however impact is read from street level and the variation between absolute heights of 1 to 2 metres would be imperceptible to the human eye."
127Mr Warnes continued with detailed submissions regarding heights, as well as the impact (in particular economically) on the Church Street site of approvals granted to surrounding developments in Donald Street, Nelson Bay.
128On 25 August 2006, Mr Warnes and Mr Maruncic lodged yet a further set of plans with the Defendant. On the same day, Mr Warnes sent an email to Ms Gale to the following effect (Exhibit E, Tab 22):
"Michael and I submitted further revised plans for the S96 Modification today with the hope that you can get them into advertising as soon as possible, i.e. next week?
The revised plans include a reduction in unit numbers, height and FSR from that originally submitted by Michael and also involves stepping in of the upper level of the building as suggested by David Broyd and DOP (very early discussions).
I am still uncertain as to the need or otherwise for a SEPP No. 1 Objection in this matter so for abundant caution I included one. If such SEPP No. 1 objection is not required please disregard it altogether.
I believe the matter can be dealt with under Section 108 of the Act and Clause 43 of the Regulations without the need for a SEPP 1?
I have tried to moderate Michael's enthusiasm for his project and getting the reductions in height and densities have been hard fought on my part.
If you can see your way free to place the S96 on notification next week I would appreciate it as I will expect that Michael will chase me to chase you."
129On 4 September 2006, Mr Warnes sent a further email to Ms Gale (Exhibit E, Tab 22):
"Michael has had new plans and elevations prepared showing the relative heights of the development as fixed by a Surveyor that show the development does not exceed 21 meters at any location and that at most other points it is lower to somewhere at the lowest it being no greater than 15 metres above natural ground.
Michael and I want to come to see you tomorrow afternoon to give you the new plans and take away the incorrect plans.
Can we come and see you at 3.30 pm? Can you confirm this or a little later would not matter?"
130By letter dated 5 September 2006, Mr Warnes submitted amended plans for a 40-unit proposal (Exhibit E, Tab 23; Exhibit 14, Tab 13). In the course of a lengthy letter, Mr Warnes said (Exhibit E, Tab 23; Exhibit O):
"Synergy Environmental Planning Pty Ltd have been engaged by the proponent of the abovementioned development to assist in his application to modify his existing consent to permit the development of the site for an increased number of units beyond that approved by Council.
The proponent sought the modification to the consent so as to address the amenity of the future occupants of each of the units which the proponent says has been compromised by the approval of adjoining residential development resulting in a loss of outlook from the proposed units towards Port Stephens.
The original S96 application sought approval to a modification that would have allowed for a total of 43 units with a maximum height from natural ground level of 25 metres.
Following upon discussions with both Council Staff and East Ward Councillors the S96 modification has now been reduced to seek approval to 40 units, a maximum height above natural ground level of 21.4 metres (Building A) and 21.8 metres (Building B) excluding the lift over run. The design of the upper floors has also incorporated a stepping in of the building at its upper levels to reduce its scale and bulk.
The interpretation of the building from adjoining public places will not allow for a reading of the height of the buildings as 21 metre structures as they are set into the site below street level such that Building A, the building set highest on the land, would read as a building of some 20.8 metres. It must be remembered that the measurement of height for the purpose of development is taken from natural ground level and not street level however impact is read from street level and the variation between absolute heights would be imperceptible to the human eye.
Additionally the overall height of the proposed buildings must also have regard to the stripping from the site of 1 metre of black soil prior to development such that the overall heights of the two buildings from natural ground level would equate to approximately 19.8 metres (Building A) and 19.5 metres (Building B). Building B is in fact significantly lower than Building A due to its being excavated into the site and at that location the site is some 5 metres below street level at its lowest position.
The modifications now sought by the proponent continue to involve an increase in density and an increase in height of the proposal so as to compensate for the loss of outlook and solar access to the units bought about as a result of the location of adjoining developments without regard to view corridors or view sharing to the north and east of the proposed development.
The modified development is proposed to be contained within the existing building envelope approved by Council but for the increase in height and the stepping in of the upper floors of the development."
131The advertising period for the latest revised plan associated with the modification application ran from 21 September 2006 until 4 October 2006 (Exhibit E, Tab 25).
132On 13 September 2006, the Plaintiffs lodged further plans, mostly dated 1 September 2006 (Exhibit 14, Gale affidavit, 25 June 2010, paragraph 22).
133On 29 September 2006, Ms Gale forwarded the latest revised plans to the Department of Planning for concurrence. Given the challenge to Ms Gale made by the Plaintiffs, it is helpful to set out the terms of this letter, which constitutes a contemporaneous statement of Ms Gale's position as at that date (Exhibit E, Tab 25) (emphasis added):
"Reference is made to the above mentioned Section 96 Modification application to development consent currently being assessed by Council and lodged on 16 February 2006.
Since lodgement of the Section 96 modification, a number of concerns were raised, apart from the lack of information submitted with the application and primarily related to density and height inconsistencies with Council requirements. Further, given such departures from Council's development standards, it was considered contrary to the public interest to support such a proposal. With this in mind, Council proceeded to issue a Notice of Intent to Refuse the application on 23 March 2006 for the reasons as outlined above.
Council was requested to withhold refusal of the application to allow the applicant to provide more detailed information and revise the proposed plans. In doing so, a number of revised plans have been submitted since the original modification, with the current version now the final version the subject of the modification .
Therefore, Council is now in a position to forward the modification application to the Department for concurrence given a further increase in height is proposed as part of the modification .
The original Development Consent was granted on 29 May 2000 for proposed 25 Medium Density Units over the above mentioned allotments pursuant to Port Stephens Local Environmental Plan 1987, with concurrence granted by the Director of the Department of Urban Affairs and Planning on 22 May 2000.
The current Section 96 Modification is the 10th modification to be lodged and the documentation submitted outlines the amendments as proposed, with the main changes relating primarily to an increase in density (ie. approved 25 units, now proposed 41 units) and increase in height (ie. approved 17.95m and proposed at maximum 21.8 metres).
The application has been tentatively called before full Council for determination. Discussions with relevant Councillors continue, in order to determine whether the modification does require referral to Council for determination with internal assessment of the modification currently being undertaken ."
134On 16 October 2006, Mr Nick Greenhalgh (the Defendant's Building Co-Ordinator) wrote to the Department of Planning seeking concurrence (Exhibit E, Tab 25).
135As the Plaintiffs' causes of action are based upon the alleged acts and omissions of Ms Gale, it is noteworthy that another officer of Council, Mr Greenhalgh, was also involved in the process. As will be apparent from other documents to which reference has and will be made, other officers of the Defendant were involved in the process as well, including Mr Scott Anson and Mr David Broyd. It is necessary to keep this feature in mind given that the Plaintiffs' principal claim is one alleging an intentional tort, misfeasance in public office, based upon the involvement of Ms Gale alone.
136On 17 October 2006, Mr Greenhalgh wrote to Mr Maruncic indicating that the application had been held up, with further information being required concerning the driveway, carpark columns and driveway width, with further information being sought in that respect within 28 days (Exhibit E, Tab 25).
137On 26 October 2006, Mr Greenhalgh wrote again to the Department of Planning clarifying the status of the application, noting that "the Council has determined to consider the proposed amendments as a modification to the original consent" and that "the application is currently being assessed" (Exhibit E, Tab 25).
138On 30 October 2006, Mr Brian Murphy of the Department of Planning replied to the Defendant's request for concurrence in the following way (Exhibit E, Tab 25) (emphasis added):
"I refer to council's letters of 29 September and 16 October 2006, seeking the Director-General's concurrence to a s96 modification of development consent in relation to the subject tall building.
The Department is unable to provide concurrence to the proposed modification . The modification represents a significant departure from the original approved DA. In this regard it is noted that an additional two levels are proposed and the number of units are to be increased from 25 to 41. Also a SEPP No 1 objection is only applicable at the development application stage. A consent authority is not able to consider a SEPP No 1 application as part of s96 modification.
Council is advised to give careful consideration to whether or not it is appropriate to progress the application as a s96 modification rather than requiring a fresh DA to be lodged ."
139I pause at this point to make some observations concerning the Plaintiffs' claim against the Defendant. In the context of this litigation, where a substantial challenge has been made by the Plaintiffs to Ms Gale upon the basis that it should have been entirely obvious from the outset that Department of Planning concurrence was not required for a s.96 modification application, as opposed to a fresh development application, it must be said that the letter of 30 October 2006 from the Department of Planning does not assist the Plaintiffs. The Department of Planning was not saying that concurrence was unnecessary. Rather, the response was that the Department was "unable to provide concurrence to the proposed modification" , with observations being made concerning the scale of the application and querying whether a fresh development application was required.
140It is necessary to keep in mind the Plaintiffs' primary cause of action in this case, namely that Ms Gale (and thus the Defendant) has committed the intentional tort of misfeasance in public office. The Plaintiffs' case, in this respect, involves a claim that there was gross delay in the process, from which an inference of intent should be drawn against Ms Gale. With respect to the Plaintiffs' secondary claim (in negligence), it is contended for the Plaintiffs that any reasonable and competent town planner ought to have been aware that Department of Planning concurrence was not required for a s.96 modification application. The terms of the letter of 30 October 2006 from the Department of Planning do not help the Plaintiffs in this respect. Rather, the letter fortifies the view that the process was a complicated one with debatable aspects (as to which legal advice might reasonably be sought). The process itself was marked by constant amendments to the plans by the Plaintiffs, which served to further protract the process.
141On or about 13 November 2006, Aussec took possession of the Church Street site arising from mortgage default (Exhibit 26, paragraph 11.1).
142On 14 November 2006, Mr Murphy of the Department of Planning wrote again to the Defendant (Exhibit E, Tab 25) (emphasis added):
"I refer to Council's letter of 26 October 2006 and the Department's previous letter of 30 October 2006 which inadvertently showed incorrect property details. For the record please now find attached a copy of the previous letter with the corrected property details. As previously advised the Department is unable to provide concurrence to the proposed modification and consequently the $250.00 referral cheque is returned."
143In view of the responses from the Department of Planning, on 30 November 2006, Ms Gale sought further legal advice from Sparke Helmore (Exhibit 14, Tab 23):
"Council has reached the point of preparing a further Notice of Intent to Refuse the S.96 application for No. 11 & 13 Church St, Nelson Bay (Milan Towers - Owner: Maruncic).
Since the original legal advice was received and Notice of Intent to Refuse issued, further revised plans were submitted which continue to involve major departures (ie. density & height).
In referral of the latest revised plans to DoP for concurrence, Council has received DoP advice stating that: 'The Department is unable to provide concurrence to the proposed modification. The modification represents a significant departure from the original DA. In this regard it is noted that an additional two levels are proposed and the number of units are to be increased from 25 to 41. Also a SEPP No.1 objection is only applicable at the development application stage. A consent authority is not able to consider a SEPP No.1 application as part of S.96 modification. Council is advised to give careful consideration to whether or not it is appropriate to progress the application as a S.96 modification rather than requiring a fresh DA to be lodged.'
I've drafted new reasons for refusal and a copy is attached for your review. I note the addition of the reason relating to no concurrence from the DoP as a new reason. Further, I note that I've included the 'not substantially the same development' reason again and request your confirmation that your original legal advice still stands and therefore, this reason should be removed from the notice of intent to refuse.
In discussing this matter with Scott, we were wanting to confirm that the legal advice still stands in regard to being able to deal with the proposal as a S.96 as the direction Council has taken to date is consistent with the original legal advice provided.
Council requests your review of these draft reasons today please, as we need to finalise and issue the Notice of Intent to Refuse the application today.
I've [sic] leaving at say 2.30 pm today and will be out of the office tomomorrow [sic]. Can you please include both Alison Walkom & Scott Anson into your email response. This will then enable Alison to finalise the paperwork and have Scott sign the Notice, on the basis of your confirmed advice in my absence this afternoon."
144Ms Grant, of Sparke Helmore, responded by a later email on 30 November 2006 (Exhibit 14, Tab 24):
"Daryl and I have now had an opportunity to consider our advice dated 21 April 2006, having regard to the Department's view that section 96 is not available in relation to the above development.
We do not agree with the Department's opinion and remain of the view that the current application does not change in a material or essential way the development approved by the original consent (as currently modified).
Whilst it is remains [sic] open to Council so still include the 'not substantially the same' point in it's [sic] reasons for refusal, we would recommend against this course of action.
If Council were to do so, and the matter was to be challenged by way of appeal, it is our view that Council would not succeed on this point. Indeed, there could be cost implications for Council if it were to pursue this point in an appeal and not succeed, as the matter would likely be dealt with as a question of law.
We note that, in any case, the Department's failure to provide concurrence means that Council has no power to approve the application. Therefore this point should remain in the reasons for refusal. In addition, the other 'merit grounds' listed in your draft reasons are very arguable, and ought to be included.
We trust the above is of assistance.
Please do not hesitate to contact Daryl or myself with any further queries."
145Once again, the nature and content of these communications assume significance given the Plaintiffs' causes of action. The contemporaneous documentation indicates that Ms Gale was obtaining independent legal advice at different stages of the process. Having obtained legal advice in April 2006 (on the question whether a s.96 application was appropriate) and in November 2006 (with respect to the Department of Planning response on the concurrence issue), Ms Gale followed that legal advice.
146Further, it is apparent that other officers of the Defendant, including Mr Anson, Mr Broyd and Mr Greenhalgh, were involved in the process. The fact that independent legal advice was being sought and followed, and that other officers of the Defendant were closely involved in the process, does not assist the Plaintiffs with respect to their primary claim (for a deliberate or intentional tort) or the secondary claim in negligence.
147On 30 November 2006, the Defendant issued a second Notice of Intent to Refuse the Plaintiffs' application. The Notice was signed by Mr Broyd, Group Manager Sustainable Planning with the Defendant. The Notice said (Exhibit E, Tab 29):
"Further to your submission dated 15 February 2006 to amend the above application pursuant to S96 of the Environmental Planning and Assessment Act 1979, issued by Council on 29 May 2000, Council advises that it is intending to refuse this application fourteen (14) days from the date of this notification. The reasons for intending to refuse are set out in Schedule 1.
Should you require further advice or assistance in this matter please contact Council's Amanda Gale."
148The reasons for the Defendant's intention to refuse the application were stated as follows (Exhibit E, Tab 29):
"1. The Department of Planning has not granted concurrence in relation to the height variation pursuant to Division 4, Clause 58 of the Hunter Regional Environmental Plan 1989.
the validity of lodgement of the S.96 application as opposed to a requirement to lodge new DA;
clarification of the conccurrence [sic] role requirements for S.96 applications.
Enclosed is a copy of the latest advice received from the Department on this issue which highlights the need to reconfirm our legal opinion.
Given our time constraints in preparation of a report to Council, I've been requested to seek your advice on an anticipated timeframe need to review this matter and provide final advice to Council.
It would be greatly appreciated if some indication of timeframe to complete the advice could be given at your earliest convenience (tommorrow [sic] morning - Thursday 15/2)."
168On 19 February 2007, Sparke Helmore provided a nine-page advice to Ms Gale. After setting out the history of the application, the following advice was given (Exhibit 14, Tab 28, pages 6-9) (emphasis added):
"Whether Council has the power to determine the Current Application pursuant to section 96 of the EP&A Act?
3.1 We remain of the opinion that the Current Application does not alter in a material or essential way the development approved by the Original Consent. The essential nature of the proposed development at least in a qualitative sense remains the same - namely a residential apartment building.
3.2 The Applicant is not proposing to introduce a 'qualitative' change to the way in which the apartments can be used. The apartments will continue to be used as residential apartments, as was approved by the Original Consent. We have not been instructed that the Current Application will give rise to any increase in amenity impacts. In addition, the building footprint is to remain the same, while vehicular access to the premises has not been altered in any material way.
3.3 We note that the Department of Planning has recently advised that it is of the opinion that the Current Application is not 'substantially the same' development as that originally approved by Council, taking into account the quantitative changes proposed, namely the addition of two further storeys and increase in the number of apartments from 25 to 41.
3.4 The following recent Land & Environment Court decisions provide an illustration of the circumstances where proposed modifications have been held to be 'substantially the same' despite quantitative changes to the approved development:
(a) Crows Nest Development Pty Ltd v North Sydney Council [2006] NSWLEC 420 - Commissioner Tuor found an increase in a mixed use building from 4 to 5 storeys, thereby resulting in an exceedance of the statutory height control, and conversion of communal terrace and spa level into an additional residential unit, was substantially the same development.
(b) Bassett & Jones Architects Pty Ltd v Waverley Council [2005] NSWLEC 530 - Commissioner Moore found that a modification which sought to add an additional storey (from 3 to 4 storeys) thereby resulting in an exceedance of the height requirements by 2 metres was substantially the same development.
(c) McNamee v Baulkham Hills Shire Council [2005] NSWLEC 625 - Commissioner Bly held that an application to modify a development consent for 2 residential flat buildings consisting of an increase in the building's height by 400mm and decrease in number of dwellings from 34 to 29 was substantially the same.
(d) Jacques Avenue Bondi Pty Ltd v Waverley Council (No 2) [2004] NSWLEC 101 - Commissioner Moore found an application to modify a consent resulting in an increase in the number of residential units from 74 to 79 was substantially the same development (although the Commissioner went on to refuse the application on merit grounds).
(e) Cyril Smith -Associates Pty Ltd v Waverley Council [2001] NSWLEC 150 - Justice Pearlman held that a reduction in the number of units from 31 to 25, and change in the footprint of a building from 3 level residential building to 3 separate buildings with a view corridor in between, was substantially the same development.
3.5 Whilst we do not agree with the Department's conclusion, we do accept that the question of whether the proposed development is 'substantially the same' is finely balanced, particularly when taking into account the significant departures of the Current Application from Council's development standards and the size of the quantitative changes .
3.6 Nevertheless, we are still of the opinion that if the matter were to be determined by the Land & Environment Court, it would be more likely than not that the Court would find the Current Application to be 'substantially the same' as the development originally approved by Council.
3.7 Our advice has been significantly influenced by the Court's view that the modification power is to be interpreted as being both 'beneficial' and 'facultative' to an applicant. As Justice Bignold held in Houlton v Woollahra Municipal Council (unreported, 30 July 1997):
'...In my judgment it would be anomalous and unreasonable as well as contrary to the purpose of the Act, if the beneficial and facultative modification power were to be read down so as to be not available in a case (such as the present) where there has been subsequent change in the relevant planning law following the grant of the relevant development consent in respect of which some modification is now sought.'
3.8 Mason P agreed with Justice Bignold's construction of the modification power in North Sydney Council v Standley & Associates Pty Ltd (1998) 97 LGERA 433, where his Honour commented at 474 that 'the risk of abuse is circumscribed by a number of factors'', namely the ability to refuse the application on merit grounds.
3.9 The nature of 'beneficial statutes' was also considered by the Court of Appeal in DEM (Australia) Pty Limited v Pittwater Council [2004] NSWCA 434, although in the context of SEPP 5, where
'...where a beneficial statute is expressed in general terms, so far as possible within the terms, decision-makers will construe the legislation to advance and achieve those beneficial purposes - not to frustrate and defeat their attainment.'
3.10 Applying the above principles to the Current Application, we consider that although the quantitative changes proposed are reasonably large, it is more likely than not that a Court would find that the development proposed by the Current Application is 'substantially the same' as that approved by the Original Consent .
3.11 We therefore consider that it remains open to Council to assess the Current Application pursuant to the modification power contained in section 96 of the EP&A Act .
If the application can be dealt with under section 96, is the Department of Planning's concurrence required?
4.1 Clause 58(1) of the Hunter Regional Environmental Plan 1989 prohibits a Council from granting consent to a development application for the erection of a building over 14 metres in height without the concurrence of the Director.
4.2 Whilst the Current Application clearly involves a building over the height of 14 metres, we do not consider clause 58 to have any application. This is because clause 58 applies to a 'development application' only, which is to be distinguished from an application to modify a development consent.
4.3 Support for our position can be found in Lido Real Estate Pty Ltd v Woollahra C (1997) 98 LGERA 1, where Justice Talbot considered whether an application to modify a development consent was required to be accompanied by an objection pursuant to SEPP 1. SEPP 1 requires a 'development application' which entails a departure from a development standard to be accompanied by an objection to the development standard.
4.4 Justice Talbot held that an objection pursuant to SEPP 1 was not available to an applicant under section 102 of the EP&A Act (being the predecessor to section 96), on the basis that an application to modify a development consent is not to be regarded as a development application. On this issue, his Honour commented:
'Section 102 applies only after a consent authority has granted development consent. The application to modify the consent presupposes the existence of the latter. The express provisions of s 102(4) support this approach by stipulating that modification of a development consent in accordance with s 102 shall not be construed as the granting of development consent although thereafter the development consent so modified is to be construed as a development consent for the purposes of the Act. If farther confirmation of the fact that an application made pursuant to s 102 is not to be regarded as a development application is required, then the addition of s 102(3A) provides that confirmation. Were it the case that an application to modify a consent was deemed to be, or to be regarded as, an application for development consent, then the provisions of s 90 would have applied to it without the assistance of subs (3 A).'
4.5 Accordingly, it is not necessary for the Department of Planning to provide concurrence to an approval of the Current Application.
5 Summary of Advice
5.1 We remain of the view that the power contained in section 96 of the EP&A Act is available to enable the Council to assess the Current Application, although we note that it might still be refused on merit grounds.
5.2 The Director of Planning's concurrence is not required prior to the determination of the Current Application.
If you have any questions regarding the contents of this advice, please do not hesitate to contact us."
169I note that it was not until this point that the Defendant was provided with legal advice from Sparke Helmore that Department of Planning concurrence was not required. Whatever may be said concerning the views of the Department of Planning which had been expressed, and the legal advice which had been provided by Sparke Helmore to the Defendant up to this time, it is difficult to see that the course of events up to this point materially assists the Plaintiffs in their causes of action against the Defendant based upon the suggested acts and omissions of Ms Gale. Ms Gale, who was not a lawyer, had taken independent legal advice and communicated with the Department of Planning. It is difficult to see how the fact that the legal advice changed, and the Department of Planning altered its view on the need for concurrence, may be (in some way) sheeted home to Ms Gale. I will return to this question later in the judgment.
170On 20 February 2007, Mr Broyd sent an email to Mr Anson and Ms Gale which stated (Exhibit E, Tab 38):
"Just to confirm that this report will go to the March Ordinary Council meeting as a 'policy report' focusing upon the issues of height and density and any other pertinent policy issue with a recommendation included that the DA as a whole be delegated for determination by the General Manager It would also be highly preferable if this report could be tabled as a late business report to the Operations Committee on 13 March."
171A little later that day, Mr Anson responded to Mr Broyd in the following terms (Exhibit E, Tab 38):
"Amanda and I have scoped out the bones of the report and Sparke Helmore has submitted legal advice concerning Council's ability to determine the matter as requested.
We are working towards the March deadline and will endeavour time permitting, to submit the draft report to you for circulation to Councillors."
172On 21 February 2007, Ms Gale sent an email to Ann Edwards (who worked in the Mayor's office). The email reflects Ms Gale's then current thinking on the matter (Exhibit E, Tab 38):
"Ann, please find enclosed the latest reponse [sic] from the Department which will assist Peter in considering Garry's request.
FYI - I've been directed to try and have a report finalised to go to the March meeting, either through the normal process (ie. Ops Committe [sic] etc.) or as a late report for Ops Committee and/or Ord Meeting. This report is intended to consider the broader policy implications concurrently with reporting on the S.96 modification application.
I'm currently working on the report to Council.
I also note that confirmed legal advice has also been received, which has basically concurred with the opinion of the Department that there is no concurrence role for the S 96. So yes, Council can now legal determine the application in the event they wish to approve.
However, whilst we now have consensus in respect to no requirements for the Department's concurrence, the issue of whether a Section 96 is appropriate or not remains of differing opinion - legal advise versus the department's advice. Although, the Department in suggesting a new DA would seem more appropriate, have acknowledged that ultimately, the decision of the appropriateness of a S.96, rather than new DA rests with the consent authority (being Council).
I mention the above because I need to incorporate this in some way into the report for Council consideration and will need to have further discussions with Scott in finalising any report to Council."
173On 21 and 23 February 2007, Mr Warnes telephoned the Defendant to ascertain what was happening with respect to the application (Exhibit E, Tab 39).
174On 26 February 2007, Davis Lawyers, acting for DJ Capital Solutions Limited ( "DJ Capital" ), wrote to the Defendant purporting to withdraw the s.96 application (Exhibit 14, Tab 29):
"You will note that clause 3 of Mortgage registered AA643323 appoints our client DJ Capital Solutions Limited as the attorney of Milan Maruncic. Milan Maruncic is in default under the terms of the Mortgage and our client has taken possession of the property.
We understand that Milan Maruncic Is the applicant under an application dated 15 February 2006 to amend Development Consent No 16-200-380-1 for 25 Medium Density Units pursuant to section 96 of Environmental Planning an Assessment Act 1979. As the attorney of Milan Maruncic our client hereby withdraws the section 96 application.
Please confirm that the section 96 application has been withdrawn at the earliest possible time."
175On 2 March 2007, Sparke Helmore gave advice to the Defendant (requested on 1 March 2007) with respect to the letter from Davis Lawyers. At the end of a five-page advice, Sparke Helmore recommended the following approach (Exhibit 14, Tab 30):
"3.15 We recommend that the Council do the following:
(a) The Council should continue to process the section 96 Application by including the proposed report relating to the section 96 Application in the next Council business paper.
(b) The Council instruct us to write to Davis Lawyers seeking the following:
(1) Evidence of the event of default which would activate the power of attorney.
(2) An explanation of how the withdrawal of the section 96 Application is part of the mortgagee's power under the Mortgage.
(3) Details of what notice of the request for withdrawal has been given to the registered proprietor.
(4) What power in the EP&A Act the mortgagee relies on to authorise the withdrawal of the section 96 Application.
3.16 If there is a satisfactory response to the above request then at that point the section 96 Application should be considered withdrawn.
3.17 If this does not occur prior to the next Council meeting, the matter should be deferred while the issue is resolved. This is because, if on a proper construction of the Mortgage the mortgagee has validly withdrawn the section 96 Application, there is the potential for the Council to be acting beyond power in determining the section 96 Application."
176On 5 March 2007, Mr Gesling wrote to Mr Maruncic in the following terms (Exhibit E, Tab 42):
"Further to my letter of 7 February 2007, I am now able to confirm that the Department of Planning has formally advised that it does not have a concurrence role in your project and it is a matter for Council to determine the procedure to deal with the matter.
The Department's view is that the matter should require a new development application given the significant departures from the original DA. The Department has acknowledged it is Council's decision whether or not to accept a Section 96 application.
Council is further advised by the NSW Department of Planning that if a new development application is submitted, the matter would be determined by the Minister for Planning under part 3 A of the Act.
A report is being prepared for Council on the policy issues involved given the assessment that the application should be refused. At this time it is expected that this report will go to Council during March."
177On 6 March 2007, Kingston Swift wrote a letter to the Defendant on behalf of Mr Maruncic (Exhibit E, Tab 43):
"We note that we act for Milan Maruncic.
We enclose a copy of a letter from Davis Lawyers to you dated 5 March 2007.
We have been instructed by Michael Maruncic to apply to the Supreme Court for an injunction, seeking an order that D J Capital Solutions Limited revoke the instruction to you contained in the enclosed letter.
Could you please advise whether you would reinstate our client's application in the event that D J Capital Solutions were ordered by the court to revoke the instruction to withdraw the application.
Your urgent reply is requested."
178On 7 March 2007, Sparke Helmore replied to Kingston Swift (Exhibit E, Tab 43):
"We act for Port Stephens Council.
We refer to your letter to Council dated 6 March 2007.
We advise that our client had requested further information from DJ Capital Solutions Limited ("DJ Solutions") so that the Council could establish whether the section 96 application is capable of being withdrawn by DJ Solutions. The Council therefore had not yet formed a view as to whether or not the section 96 application had been withdrawn.
In any case, Davis Lawyers, who act for DJ Solutions, have today advised that their client does not wish to withdraw the section 96 application. Accordingly, the Council will proceed to assess the section 96 application on the basis that it has not been withdrawn."
179Later on 7 March 2007, Davis Lawyers wrote to Sparke Helmore in the following terms (Exhibit E, Tab 43):
"Thank you for your facsimile of 6 March 2007
We fully appreciate the predicament faced by your client and appreciate your Involvement in the matter.
In response to your facsimile we are instructed to reply as follows:
[8]
The Plaintiffs' Causes of Action
211The Plaintiffs sue the Defendant for misfeasance in public office and negligence. Before moving to a determination of the proceedings, the torts for which the Plaintiffs sue should be considered.
Misfeasance in Public Office
212The tort of misfeasance in public office is well established, but in important respects, it has been said that the precise limits of the tort remain undefined: Northern Territory of Australia v Mengel [1995] HCA 65; 185 CLR 307 ( "Mengel" ) at 345; Leerdam v Noori [2009] NSWCA 90; 255 ALR 553 at 574 [99].
213Misfeasance in public office is a deliberate tort: Mengel at 345; Pharm-a-Care Laboratories Pty Limited v Commonwealth of Australia (No. 3) [2010] FCA 361; 267 ALR 494 at 508-509 [58]-[59]. In Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 at 376 [124], Gummow J observed that "misfeasance in public office concerns conscious maladministration rather than careless maladministration" .
214In Sanders v Snell [1998] HCA 64; 196 CLR 329 at 346-347 [42], Gleeson CJ, Gaudron, Kirby and Hayne JJ emphasised that it is an intentional tort.
215In Mengel , Deane J, at 370-371, identified the elements of the tort in the following way (footnotes excluded):
"Its elements are: (i) an invalid or unauthorized act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. The critical element for present purposes is malice.
In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff. Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied."
216What has been described as the malice requirement of the tort has been divided into "targeted malice" and "untargeted malice" : Sappideen and Vines (Editors) , "Fleming's The Law of Torts", 10 th edn, 2011, page 715; Aronson, "Misfeasance in Public Office: A Very Peculiar Tort" (2011) 35 Melbourne University Law Review 1 at 12, 18-25.
217In Rush v Commissioner of Police [2006] FCA 12; 150 FCR 165 at 197-198 [121], Finn J observed:
"It is unnecessary for present purposes to discuss the elements of this tort in any detail. They were recently essayed by the Full Court of this Court in Sanders v Snell (No 2) (2003) 130 FCR 149. I would note, though, that the tort can take two forms. In one form (that of "targeted malice") it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury: see generally Sanders v Snell (No 2) at [95]-[100]."
218It has been said that there is no requirement that a person act with spite or ill will as an ingredient of the tort. Rather, there are two ways in which the requisite state of mind can be established. The first is by proving that the defendant acted with the intention of harming the plaintiff. The second state of mind is where the defendant has knowledge that his or her actions are unlawful and that they will probably cause loss to the plaintiff: Trindade, Cane and Lunney, "The Law of Torts in Australia" , 4 th edn, 2008, paragraph 6.10.2. Mr Toomey QC, in his closing address in reply, emphasised that the Plaintiffs' claim asserted the first of these options (T1097).
219I will return to the elements of this tort later in the judgment, in the course of determining whether the Plaintiffs have proved their case.
Negligence
220The Plaintiffs' claim in negligence was both opened and closed in this case as being the Plaintiffs' secondary cause of action. In opening the case, Mr Toomey QC observed "If we don't succeed on misfeasance I think the probability is that we will not succeed [on negligence] " (T44.3). Despite the lesser emphasis on this cause of action, Mr Toomey QC observed in closing that the claim in negligence was maintained (T1097).
221The Plaintiffs acknowledge that the claim in negligence is a claim for pure economic loss.
222It is common ground that the provisions contained in ss.5B, 5C and 5D Civil Liability Act 2002 have application to this case. Those sections state:
"5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
223In addition, it was common ground that ss.43 and 43A Civil Liability Act 2002 apply to these proceedings. Those sections state:
"43 Proceedings against public or other authorities based on breach of statutory duty
(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a breach of a statutory duty by a public or other authority in connection with the exercise of or a failure to exercise a function of the authority.
(2) For the purposes of any such proceedings, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.
(3) In the case of a function of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.
43A Proceedings against public or other authorities for the exercise of special statutory powers
(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority.
(2) A special statutory power is a power:
(a) that is conferred by or under a statute, and
(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.
(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.
(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44."
224The Defendant submits that no duty of care was owed by the Defendant to the Plaintiffs, in the circumstances of this case. Further, the Defendant submits that, if a duty of care does arise, it was not breached in this case. I will return to these submissions later in the judgment.
[9]
Have the Plaintiffs Proved Either Cause of Action? - Some General Observations ad Conclusions
225A voluminous quantity of documentary evidence was tendered by the parties at the hearing of this matter, in conjunction with an extended body of oral evidence. The processes undertaken by the Defendant in 2006 and 2007 with respect to the Plaintiffs' s.96 application were subjected to close scrutiny. Other processes of the Defendant undertaken for different purposes, including the "Cote D'Azur" and Expoe applications, were also considered in some detail.
226It is important to keep in mind what the issues are in these proceedings. The Court is not undertaking a form of broad inquiry into the processes of the Defendant, for the purpose of considering whether the Defendant and its officers (including Ms Gale) could have dealt with any aspect of the application differently and, in particular, whether, in hindsight, things might have been done differently in one or other respect.
227The conduct of the parties is not to be seen through the prism of hindsight: Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 441 [16].
228The evidence is to be examined for the purpose of determining whether:
(a) the Plaintiffs have established the ingredients of the deliberate or intentional tort of misfeasance in public office, or
(b) the Plaintiffs have established that, in the circumstances of the case, the Defendant owed the Plaintiffs a duty of care with respect to the processing of the s.96 application and that the Defendant breached this duty of care causing loss or damage to the Plaintiffs.
229The Defendant and its officers (including Ms Gale) were considering whether the Plaintiffs' s.96 application should be granted. It was necessary for the Defendant to consider whether it was "satisfied" that the application should be granted.
230The Plaintiffs did not have an entitlement to a particular outcome on the application. Plainly, this was not a situation analogous to the payment of a licence fee, with a legitimate expectation that a licence would issue forthwith from the relevant administrative decision maker.
231At times, the submissions for the Plaintiffs have suggested that the Defendant's acceptance (on legal advice) that the application lodged on 15 February 2006 ought be processed as a s.96 application, meant that the application was to be approached as involving minor matters only, as to which approval should readily follow. The correspondence from Kingston Swift on 4 December 2006 had this flavour (see [149] above). This approach does not reflect the proper construction of s.96 EPA Act itself. So much is clear from the contemporaneous legal advice from Sparke Helmore in 2006 and 2007 which, in this respect at least, was undoubtedly correct.
232The acceptance by the Defendant (on legal advice) that the application related to "substantially the same development" involved a threshold question only. Thereafter, the Defendant was required by statute to consider whether it was satisfied that the modification application should be granted. On any view of it, the Plaintiffs' application (in its various and changing iterations) involved significant changes to that which had been approved in 2000. The development did not concern a simple single-storey residence. It involved a multi-apartment block to be erected in part of Nelson Bay where there were already several multi-apartment blocks. Issues of height and density, amongst other things, were very likely to arise and to remain critical to the process. A reasonable and prudent town planner would be concerned about such issues. It is apparent that officers of the Defendant (as well as Ms Gale) were so concerned, as were officers of the Department of Planning to whom the matter was referred in late 2006 and early 2007.
233It is the Plaintiffs' case, on the claim for misfeasance in public office, that Ms Gale's acts and omissions were done with the intention of causing harm to the Plaintiffs (T1058.32). Although it is not an ingredient of the tort to establish a motive for intending to cause harm to the Plaintiffs, it is nevertheless pertinent to the fact-finding process to ask what motive Ms Gale might have for intending harm to Mr Maruncic and his company. As in a criminal trial, where motive is not an element to be proved by the Crown, the presence or absence of motive, or the nature of any motive, may bear upon a determination as to whether the moving party has proved its case: De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at 92-93 [28]-[32]; R v Vjestica [2008] VSCA 47; 182 A Crim R 350 at 382-383 [112]-[115].
234Ms Gale was, at all relevant times, a planning officer working for the Defendant. It was not suggested that she had a personal axe to grind or animus towards Mr Maruncic and his company. Indeed, the evidence suggests that, as a result of contact between Mr Maruncic and Ms Gale in 2005, he (Mr Maruncic) was content for Ms Gale to process the s.96 application, despite the reservations which she had expressed about the proposed alterations to the development.
235A fundamental difficulty for the Plaintiffs' case is that a substantial explanation for the delay in the process in 2006 and 2007 is the repeated provision of amended plans to the Defendant. The lengthy factual recital earlier in this judgment identifies the provision of further plans by the Plaintiffs, and the need for advertising and exhibition of these plans by the Defendant. Even the Councillors, at least some of whom were sympathetic to the Plaintiffs' position, noted the problems generated by the repeated provision of further plans. Mr Maruncic utilised the services of Mr Warnes some (but not all) of the time. At times, Mr Warnes himself was critical of material submitted by Mr Maruncic to the Defendant (see [109] above).
236A further difficulty for the Plaintiffs, in particular concerning the deliberate or intentional tort of misfeasance in public office, is that Ms Gale sought legal advice from Sparke Helmore in April 2006 (on the s.96 issue) and again in November 2006 and February and March 2007 (on the Department of Planning concurrence issue and other matters). Having obtained legal advice, Ms Gale followed it. Ms Gale acknowledged readily that it was her view, at the time when advice was sought in April 2006, that the scale of alterations sought in the application was such that it should proceed as a fresh development application, and not as a s.96 modification application. However, having obtained advice from Sparke Helmore on the issue, she followed it. I do not consider that this is the conduct of a public officer who intended harm to the Plaintiffs.
237To the extent that the Plaintiffs' case is based upon an assertion that Ms Gale was prolonging the process, effectively dragging the chain through 2006 and into 2007 so as to support an inference of intention to harm the Plaintiffs, I am not satisfied that such a conclusion should be reached. I have already adverted to Ms Gale's workload with the Defendant see [72] above). accept, as one would, that Ms Gale's workload included other applications. The Plaintiffs' regularly changing application raised issues of some complexity in the context of a large multi-apartment development project.
238I am satisfied that Mr Maruncic viewed (and continues to view) the Defendant's process in an unduly narrow way. He had obtained development approval for the project in 2000. It is apparent that this development was very important to him personally, being a type of crowning achievement upon his life in property development. His plans were stymied for a time by the injunction obtained by the owner of an adjoining property, which saw work on Mr Maruncic's development stopping for 18 months until December 2004. By this time, other developments had been approved by the Defendant.
239I am satisfied that Mr Maruncic approached the matter upon the basis, that he was entitled to variations to his approval for "Milan Towers" to allow him to proceed, effectively as if the development had not been placed on hold for 18 months, and that the Defendant was in some way obliged to allow him to expand and heighten his development because of other approved developments, in particular "Cote D'Azur" . Although his subjective view was, in a sense, understandable, it has little to do with the causes of action for which he sues the Defendant.
240The evidence of Mr Warnes assisted the Court. He is an experienced town planner who has worked for various public authorities, including the Defendant. The contemporaneous documentation reveals the challenging task which confronted Mr Warnes in 2006 and 2007. He was acting for a demanding client, Mr Maruncic, who was in increasingly dire financial straits. Mr Warnes was himself critical of a number of plans and documents relied upon by the Plaintiffs.
241Mr Warnes served, in 2006 and 2007, as a vigorous advocate in support of the Plaintiffs in their application to the Defendant. It is difficult to detach Mr Warnes' vigorous advocacy, at the time when he was acting for the Plaintiffs, from his role as an expert witness in this Court. In truth, Mr Warnes is a living example of a witness who was wearing two hats in the proceedings. He was not an expert witness who was only retained once the proceedings were on foot for the purpose of expressing opinions on relevant issues. Mr Warnes had been, in a practical sense, a protagonist in the process at the time when relevant events were happening. That involvement inevitably coloured his opinion evidence in the proceedings.
242In making these observations, I do not mean to denigrate Mr Warnes or the role that he played in acting for the Plaintiffs in 2006 and 2007 and in giving evidence at this hearing. Rather, as observed in MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 3) at [37]ff, the question is the weight to be attached to Mr Warnes' opinion evidence, given his roles in acting for the Plaintiffs in 2006 and 2007 and in giving expert evidence in the hearing before me. I am satisfied that less weight should attach to the opinion evidence of Mr Warnes in these circumstances, than would otherwise have been the case.
243The Plaintiffs called Mr Westbury to give evidence in their case. By that time, he was the Mayor of the Defendant. Mr Westbury was sympathetic to Mr Maruncic's application in 2006 and 2007. He became a type of advocate within the Defendant for Mr Maruncic. This is not intended to be a criticism of Mr Westbury. The nature and operation of local government will involve councillors forming views and supporting or opposing a particular application: McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; 72 NSWLR 504 at 514 [59]. However, other Councillors took a different view of the Plaintiffs' s.96 application. Mr Westbury conceded that he had limited recollection of precise events which occurred in 2006 and 2007 concerning the application. In particular, I do not consider that Mr Westbury gave any reliable evidence concerning internal processes within the Defendant or what Councillors were being told about the application from time to time. This is not a criticism of Mr Westbury, but an acknowledgement of the reality that he could give no useful evidence concerning details of events which occurred some years before.
244In my view, the Defendant and its officers (including Ms Gale) were entitled, if not obliged, to consider closely the Plaintiffs' application lodged in February 2006 to determine whether it ought be granted. The process was protracted for a number of reasons, not the least being the fairly regular changes to the plans advanced by the Plaintiffs.
245There is no doubt that the processing of the application was delayed to some extent by consideration as to whether Department of Planning concurrence was required with respect to the application. Viewed in hindsight, the answer to that question may now be considered to be a clear one. However, the processes undertaken in 2006 and 2007, including the legal advice obtained by Ms Gale from Sparke Helmore and statements in correspondence from officers of the Department of Planning, suggested that the position was far from clear at the time. The Plaintiffs do not advance their case, in support of a claim of an intentional or deliberate tort, in any real way by relying upon these events. Indeed, the fact that Ms Gale was seeking independent legal advice on the question does not sit comfortably with a conclusion that she intended to cause harm to the Plaintiffs.
246It was submitted for the Plaintiffs that the s.96 application process should have involved an iterative process, with feedback from Ms Gale being provided to Mr Warnes and Mr Maruncic to assist them to progress the application. I do not accept that there is any statutory or common-law duty on the part of council officers to engage in such a process.
247It should be kept in mind, however, that it was apparent to the Plaintiffs from an early time that Ms Gale saw difficulties with the Plaintiffs' application. This is not a case where officers of the Defendant (including Ms Gale), in some way, encouraged the Plaintiffs to proceed down the s.96 application pathway in the expectation that the application would be favourably received. Nor is it a case where, once the s.96 application had been lodged in February 2006, the Plaintiffs were thereafter encouraged by Ms Gale to persist with the application with suggestions that a favourable outcome was on the horizon. Moreover, the evidence reveals that Ms Gale was communicating the nature of the problems to Mr Maruncic and Mr Warnes. This assists an understanding of why they continued to provide amended plans to the Defendant. Mr Warnes and Mr Maruncic were not operating in the dark in this respect.
248A further important feature, which bears upon the Plaintiffs' claim concerning both torts, is the failure of the Plaintiffs to utilise the avenue of appeal to the Land and Environment Court under s.96(6) EPA Act at any time after 27 March 2006.
249It is difficult to reconcile the claim advanced in these proceedings that Ms Gale was intending to do the Plaintiffs harm in 2006 and 2007, with the preparedness of the Plaintiffs to leave the processes with the Defendant (and Ms Gale) in that period rather than proceed, as of right, by appeal to the Land and Environment Court where a new decision maker would be injected into the process. The explanation for this approach by the Plaintiffs emerges from the evidence. It is clear that the Plaintiffs wished to press on with the s.96 application, with representations being made to the officers of the Defendant (including Ms Gale) and especially to the Councillors themselves (particular the East Ward Councillors), in the hope that the application would succeed at that level. As a result, vigorous lobbying was undertaken, and correspondence entered into, by Mr Warnes and Mr Maruncic in support of the application over the months in 2006 and 2007.
250Apart from the legal consequences of the existence of the statutory avenue of appeal and the failure of the Plaintiffs to utilise it (to which I will shortly turn in the context of the negligence claim), the practical consequence of this approach was to leave to the Defendant and its officers, the determination of the application. That this process took some time was, as I have said, a product of the complex nature of the development itself, legal issues which (according to the Defendant's then legal advisors) were not straightforward, and the changing nature of the application which the Plaintiffs were advancing to the Defendant.
251The Plaintiffs have not demonstrated that the use of shadow diagrams by the Defendant operates in a manner which assists them in this case. Nor am I satisfied that anything said by Ms Gale concerning the shadow diagrams had a potential to mislead Councillors with respect to them.
252Ms Gale accepted that the information which she provided to Councillors did not include the information which Mr Warnes had furnished on 5 April 2007 concerning the height of "Cote D'Azur" . The evidence reveals that a range of information was provided to Councillors by Ms Gale concerning the height of existing buildings and the "Milan Towers" development proposal.
253The evidence falls far short of demonstrating that Ms Gale, in some way, suppressed information from the Councillors. Although, in hindsight, it might be suggested that there were other ways of dealing with the height issue, I am not at all persuaded that the way in which Ms Gale in fact dealt with the topic at that time supports an inference or conclusion that she was seeking to suppress relevant information or to deliberately or intentionally harm the Plaintiffs.
254The conclusions which I have so far expressed do not depend upon the expert evidence of Ms Laidlaw. Her evidence came under strong challenge by Senior Counsel for the Plaintiffs. I have reached the conclusion that the Plaintiffs have not demonstrated any deliberate or intentional conduct on the part of Ms Gale to harm the Plaintiffs without relying upon the evidence of Ms Laidlaw. However, the evidence of Ms Laidlaw only serves to fortify the conclusion which I have reached. Ms Laidlaw's opinions concerning the approach which a reasonable and prudent town planner would take and the steps taken by Ms Gale, at various significant points in the process, further fortifies a conclusion that the Plaintiffs have fallen far short of demonstrating intentional or deliberate wrongdoing on the part of Ms Gale. The evidence of Ms Laidlaw also supports the Defendant on the negligence claim.
[10]
Determination of Claim for Misfeasance in Public Office
255Allegations that statutory powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld: Federal Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; 237 CLR 146 at 165 [60].
256In Leinenga v Logan City Council [2006] QSC 294, Mullins J, at [64], observed after an examination of relevant authorities, including Mengel and Sanders v Snell :
"These authorities illustrate that the tort of misfeasance in public office is not easily established. It depends on the impugned act being committed by the public officer with the requisite state of mind both in committing the act and in holding the requisite intention to cause the loss or damage that is alleged to flow from the impugned act. It is a very serious allegation to be made against a person who holds public office. It cannot be made in a broad brush way. It requires particularity in setting out the facts that can, if proven, establish the cause of action."
257The primary focus of submissions in this case has been the mental state required to establish the tort of misfeasance in public office, and the application of that legal ingredient to the circumstances of this case.
258There is an issue as to whether Ms Gale was a public officer for the purpose of the tort. The Defendant submits as well that the Plaintiffs have not established that Ms Gale made any relevant determination in the matter. There is no real controversy, however, that the duties being undertaken by Ms Gale, as an officer of the Defendant, involved the exercise of statutory functions.
259The Plaintiffs submit that Ms Gale's state of mind may be inferred from the evidence adduced in the case. Reliance is placed upon Trobridge v Hardy [1955] HCA 68; 94 CLR 147 at 162, applied in A v State of New South Wales [2007] HCA 10; 230 CLR 500 at 530-539 [88]-[119]. The Plaintiffs submit that a finding of relevant intention to cause harm should be made on the totality of the evidence. It is submitted that Ms Gale at least predetermined the application and misapprehended her role, taking into account irrelevant information and failing to take account of relevant information, and that she failed to accord procedural fairness to the Plaintiffs and then did the same in respect of the provision of information to the Councillors.
260A recurring theme in the Plaintiffs' submission is that the length of time taken to process the s.96 application forms the basis for an inference of deliberate delay on the part of Ms Gale, with her acts and omissions demonstrating delaying tactics: cf Parker v Commonwealth of Australia [2011] FCA 1029 at [19].
261In approaching the evidence, it is necessary to keep firmly in mind, the demanding nature of the tort of misfeasance in public office. The Plaintiffs must demonstrate the elements of this deliberate or intentional tort.
262The standard of proof which the Plaintiffs must discharge is set out in s.140 Evidence Act 1995 :
"140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged."
263Section 140(2) Evidence Act 1995 imports the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 in requiring a court, when considering whether it is satisfied on the balance of probabilities, to take into account the gravity of the matters alleged in relation to the question: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at [61]; Palmer v Dorman [2005] NSWCA 361 at [40]-[47].
264It is necessary to keep in mind, in considering the evidence in this case, the renowned statement of Dixon J in Briginshaw v Briginshaw at 361-362:
"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
265It is appropriate to draw together my findings and conclusions by reference to the elements of the tort of misfeasance in public office. For ease of reference, I will utilise the elements referred to by Goldberg J in Porter v OAMPS Limited [2005] FCA 232; 215 ALR 327 at 352 [103] and mentioned as well in Pharm-a-Care Laboratories Pty Limited v Commonwealth of Australia (No. 3) at 509 [58] and Chan v Selwood [2009] NSWSC 1335 at [41]. Those elements are as follows:
(a) there is a public officer;
(b) who owes a public duty (including to a plaintiff as a member of the public);
(c) which the public officer has breached;
(d) the breach of duty has caused loss or damage to the plaintiff; and
(e) the public officer breached the duty with the intention of causing harm to the plaintiff or with knowledge that he or she was acting in excess of his or her powers.
Public Officer
266The Plaintiffs submit that, for the purposes of misfeasance in public office, a public officer is any person appointed to discharge a public duty and who receives compensation in some form, whether from the Crown or otherwise: Mengel at 355. It was submitted that Ms Gale satisfied this criteria and that, as her employer, the Defendant was vicariously liable for her actions. The relevant statutory power that was said to attach to Ms Gale's position was to approve or refuse development modification applications under s.96 EPA Act.
267The Defendant submitted that Ms Gale is not a public officer for the purpose of this tort. It was submitted that she had no delegated authority to exercise, nor did she exercise any power under s.96 EPA Act, so that she was incapable of falling within the criteria of a public officer.
268Mr Joseph SC submitted that at no stage did Ms Gale approve or disapprove the Plaintiffs' s.96 application. He submitted that Ms Gale made recommendations to Council and issued Notices of Intention to Refuse which, it was submitted, had no statutory basis (T1073). Rather, it was submitted that it was the Defendant, by the Councillors themselves, which exercised the relevant power under s.96 when the resolution was passed in July 2007 to refuse the Plaintiffs' s.96 application.
269There is no authoritative statement of the test for determining who or what constitutes a public officer for the purposes of the tort of misfeasance in public office: Leerdam v Noori at 554 [3]. In Neilson v City of Swan [2006] WASCA 94; 147 LGERA 136 at 150-151 [37]-[38], it was accepted that a local government council, and its relevant officers, in the exercise of planning functions, were holders of a public office for the purposes of the tort. In Leerdam v Noori , Spigelman CJ at 555-556 [11] noted that this feature had been conceded in Neilson v City of Swan .
270In the present case, the Defendant makes no such concession and it is necessary for the Court to resolve the issue. I am satisfied that Ms Gale occupied a public office for the purpose of the tort. The planning functions of local government councils under the EPA Act are, at times, exercised through officers of council. At times, the officer may be the legal decision maker when acting under delegated authority. However, even if that is not the case, the council officer with the day-to-day management of the application undertakes a significant role in gathering and evaluating material for the purpose of the decision to be made by council. These statutory functions are carried out by the officer for the purposes of decision making under the EPA Act.
271I have mentioned earlier in this judgment (at [120]) that it was an open question (at that time) whether the Council itself intended to make the operative determination on the Plaintiffs' s.96 application. The contemporaneous documentation indicates that the matter was called to Council. The better view is that the decision was made either under delegation by a Committee or by the Council itself. I am certainly not satisfied, on the balance of probabilities, that Ms Gale herself made the decision under delegated authority.
272That finding, however, does not mean that Ms Gale was not the holder of public office for the purpose of the tort. An officer in the position of Ms Gale plays an important role in gathering material, taking advice and making recommendations to the decision maker with respect to the relevant application.
273I am satisfied that Ms Gale was the holder of a public office in 2006 and 2007 for the purpose of the tort of misfeasance in public office.
The Public Officer Owes a Public Duty
274I am satisfied that, in exercising the functions which she did for the purpose of progressing the Plaintiffs' s.96 application, Ms Gale had a duty to progress the application in accordance with the statutory scheme. This flows from the public office which she occupied, an important part of which involved performance of duties in assessing and progressing applications under s.96 EPA Act.
The Public Officer has Breached a Public Duty
275It is not at all clear that this element of the tort is a universal one, which must be proved, even where the Plaintiffs (as in this case) contend that Ms Gale's acts and omissions were done with the intention of causing the Plaintiffs harm.
276The Plaintiffs have conducted this case as one of targeted malice, namely that Ms Gale intended to harm the Plaintiffs with respect to the s.96 application. It has been observed that the cases have yet to decide whether defendants who are guilty of targeted malice may escape liability if they neither knew, nor subjectively suspected, that they were breaking the law: Aronson, above, at 50.
277If a public officer intends to harm an applicant and determines that an application should be refused, irrespective of its merits, and tailors their approach to the application to achieve this outcome, it might be said that there has been no performance of the duty to consider the application on its merits. This situation may fall within the parameters of the tort of misfeasance in public office. It seems to me that this is the way that the Plaintiffs seek to put their case in these proceedings.
278If, however, a public officer has misgivings concerning an application, but progresses the application to allow the applicant to present its case which is considered by the decision maker, then it is difficult to see how the tort would have application from those circumstances alone, even where the public officer knows that refusal of the application may cause economic harm to the applicant.
279Many decisions made by public officers may have negative economic consequences if the result falls one way. A public officer who, despite concerns about the merits of the application, nevertheless facilitates a process whereby the applicant put its best foot forward and with the applicant's case being considered, will be performing the public duty which forms part of their public office. In essence, this is the way in which the Defendant presents its case here, even allowing for its primary submission that Ms Gale is not a public officer for the purposes of the tort.
280It seems to me that the question of whether there has been a breach of public duty in this case depends upon my determination concerning Ms Gale's intention towards the Plaintiffs, an issue to which I will shortly turn.
The Breach of Duty has Caused Loss or Damage to the Plaintiffs
281In truth, this element arises out of order if considered at this point. However, I will consider it shortly.
282If all other elements of the tort have been established, then it is necessary for the Plaintiffs to have suffered loss or damage as a result of the proved misfeasance. As the Defendant has submitted, there are very live issues concerning causation in this case. Mr Maruncic was in dire financial difficulty, a position which continued to deteriorate between February 2006 and July 2007. The mortgagee had taken possession of the Church Street site on or about 13 November 2006 for the purpose of exercising power of sale.
283For the purpose of achieving a successful outcome in the proceedings, it would be necessary for the Plaintiffs to establish that the tort had been committed at a time which was sufficiently early to have some real effect. To the extent that a significant part of the Plaintiffs' case focused upon the use that was made of Mr Warnes' letter of 5 April 2007, there is a powerful argument to the effect that this was simply too late to make any difference at all to the Plaintiffs' position.
284As will be seen, the Plaintiffs' case on damages is based upon the loss of a chance to build "Milan Towers" and to make a profit from sale of the apartments. There is considerable force in the Defendant's submission that there was no realistic chance of this happening at any time that matters for the purpose of these proceedings.
285I mention these issues at this point because, should the Plaintiffs otherwise succeed in establishing the elements of the tort, it would be necessary to consider with some precision the point at which the tort was committed, or was commenced to be committed. Of course, even if the Plaintiffs could demonstrate that events in and after April 2007 warrant a finding that the tort has been committed, this does not mean that, in some way, the tort could extend backwards to earlier times from the lodgement of the s.96 application in February 2006.
286What I have said is sufficient to note the difficulties for the Plaintiffs in the case, should this point be reached.
The Public Officer Breached a Duty With the Intention of Causing Harm to the Plaintiffs or With the Knowledge that He or She Was Acting in Excess of His or Her Powers
287As mentioned earlier, the Plaintiffs put their case upon the basis that Ms Gale's acts and omissions were done with the intention of causing harm to the Plaintiffs. It is for the Plaintiffs to prove the commission of an intentional or deliberate tort or, as Gummow J put it in Pyrenees Shire Council v Day , "conscious maladministration" and not "careless administration" .
288In determining whether the Plaintiffs have established this element of the tort to the civil standard of proof, I bear in mind s.140(2) Evidence Act 1995 and the principles referred to at [263]-[264] above.
289I have already touched upon issues which relate to this element of the tort (at [228] to [254]). It is appropriate to draw my thoughts together on this issue.
290In effect, the Plaintiffs contend that Ms Gale engaged in a course of conduct from April 2006 (if not earlier) until June 2007 to give effect to her prejudgment that the Plaintiffs' s.96 application should be refused. The Plaintiffs contend that an inference can be drawn to support this conclusion. It is said that Ms Gale sought legal advice from Sparke Helmore in April 2006 in the expectation that the advice would be that a s.96 application was inappropriate and that the Plaintiffs should proceed by way of a fresh development application. When the surprising advice was given that the s.96 application was appropriate, the Plaintiffs contend that Ms Gale approached the matter thereafter upon the basis that it should fail. In effect, it is alleged that Ms Gale embarked upon a course of conduct, over many months, with the intention of defeating the application. It is alleged, in effect, that Ms Gale determined to slow the process down by engaging in a form of delaying tactics, and in raising obstacles for the Plaintiffs.
291The Plaintiffs contend that Ms Gale did not engage in a form of iterative process, involving a two-way exchange of ideas which would facilitate the Plaintiffs ascertaining what may be acceptable to the Defendant for the purposes of the application.
292The Plaintiffs contend that this ought to have been a relatively simple process. Having determined to accept a s.96 application, the Plaintiffs submit that the Defendant and Ms Gale were required to undertake a merits assessment for the purposes of s.79C EPA Act. The Plaintiffs submit that it ought to have been clear at all times that Department of Planning concurrence was not required for a s.96 application. If, however, there was said to be any doubt on this topic, the Plaintiffs submit that Ms Gale ought to have referred the matter to the Department of Planning for concurrence early in the process, and not leave it until October 2006. The Plaintiffs contend that this was indicative of Ms Gale seeking to raise obstacles for the Plaintiffs along the way.
293The Plaintiffs contend that Ms Gale was clearly aware of Mr Maruncic's difficult financial circumstances, as this topic was referred to in correspondence and was mentioned by Mr Warnes and Mr Maruncic at face-to-face meetings.
294The Plaintiffs contend that Ms Gale did not provide accurate and complete information to East Ward Councillors who indicated an interest in the application. The Plaintiffs submit that Ms Gale did not accurately portray shadow diagrams for this purpose, and did not provide a complete and accurate account of the competing position concerning the comparative height of the already constructed "Cote D'Azur" and the proposed "Milan Towers" .
295The Plaintiffs submit that Ms Gale was the officer with the prime responsibility within the Defendant for assessment of the Plaintiffs' application and that her acts and omissions, and the slow pace at which the matter progressed, demonstrate an intention on her part to cause harm to the Plaintiffs.
296Although acknowledging that the Plaintiffs' application was amended and further amended between February 2006 and June 2007, the Plaintiffs contend that these were reasonable steps taken by the Plaintiffs in response to the Defendant's indications, by which the Plaintiffs sought to achieve a reasonable and favourable outcome on the application.
297The Defendant submits that Ms Gale was concerned about the issues raised on the application from the outset, but that the application was progressed over time, in its regularly changing form, with Ms Gale obtaining independent legal advice at different points for that purpose. The Defendant submits that Ms Gale did not mislead Councillors in any way, and that the manner in which she approached the application was not indicative of any intention to harm the Plaintiffs. The Defendant called in aid the opinion evidence of Ms Laidlaw which furnished support for the approach taken by Ms Gale.
298I have had regard to the documentary and oral evidence for the purpose of determining whether the Plaintiffs have established, to the requisite standard, an intention on the part of Ms Gale to cause harm to the Plaintiffs.
299Ms Gale gave evidence at the hearing and was challenged strongly under cross-examination. At times, her evidence was somewhat defensive, but that may be seen as a product of the nature of the attack upon her. I formed the view that Ms Gale was a frank witness who did her best to give honest and reliable evidence. In truth, there were few areas of conflict between Ms Gale's evidence and that of any other witness in the proceedings, including Mr Maruncic and Mr Warnes, on any issue of significance. I am conscious of the care required in making demeanour findings. It is necessary for a trial Judge to weigh impressions as to the demeanour of a witness carefully against the probabilities and to examine whether any disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186 at 191 [27].
300Of particular importance in the present case is the substantial body of documentation which provides a contemporaneous insight into what Ms Gale was doing between February 2006 and June 2007 and why she was acting in the way that she did. I have set out in this judgment, in considerable detail, extracts from the contemporaneous documentation. In a case where the Plaintiffs seek to rely upon inferences drawn from the evidence, in support of a finding against Ms Gale of intention to cause harm to the Plaintiffs, an examination of the contemporaneous documentary evidence is important. Having examined the documentary evidence, I am satisfied that it supports Ms Gale in important respects and undermines the Plaintiffs' case that Ms Gale intended to harm them.
301I have already made a number of findings which explain my reasoning in this respect, However, I set out hereunder, in summary form, my conclusions for rejecting the Plaintiffs' submission in this regard.
302The context in which Ms Gale's conduct is to be considered is one of a complex development at Nelson Bay. The history of the Plaintiffs' original development application, the 18-month lull whilst an injunction was in place and then Mr Maruncic's enthusiastic efforts to alter and enlarge the approved development are recorded earlier in this judgment. A cautious approach to the Plaintiffs' application might be expected of a prudent officer of the Defendant. This was not a minor proposed alteration to a straightforward development.
303I accept that Ms Gale had misgivings that the Plaintiffs' application lodged in February 2006 ought proceed as a s.96 application rather than a fresh development application. Given the issues raised in the application, involving issues of height and density, those concerns were not unreasonable. The documents demonstrate that Ms Gale had formed a prima facie view that the application ought be refused. If she intended to harm the Plaintiffs, it might be thought that she would proceed directly to so recommend with such a decision likely to result. Instead, Ms Gale sought legal advice from Sparke Helmore on the issues. The evidence does not demonstrate that Ms Gale had an expectation that Sparke Helmore would advise that a s.96 application was not appropriate and that the matter should proceed as a development application. The evidence does not support a conclusion that legal advice was sought to provide a layer of protection for Ms Gale that a s.96 application was inappropriate. As it happens, Sparke Helmore advised that it was technically possible to consider the February 2006 application as a s.96 application.
304The Plaintiffs contend that Ms Gale had prejudged the matter and was, in reality, indissolubly wedded to the proposition that the application would fail. I do not accept this submission. It was common ground that the test of prejudgment is whether Ms Gale was incapable of persuasion to a contrary view: McGovern v Ku-Ring-Gai Council at 508-510 [15]-[30]. I accept that Ms Gale was concerned about the height and density issues arising from the s.96 application, but that she remained open to persuasion to a contrary view, with the Plaintiffs having an ample and extended opportunity to do so over several months. She remained concerned about these issues, as did other senior officers of the Defendant. In truth, the problems with the application remained until the end when it was refused. I am certainly not satisfied that Ms Gale prejudged the application as contended by the Plaintiffs.
305In the context of misfeasance in public office and the concept of recklessness considered in cases such as Garrett v Attorney General [1997] 2 NZLR 332, it has been observed that "the formulation of the test for recklessness in Garrett requires more than simply uncertainty on the part of the public official as to the legal position, coupled with a failure to make enquiries" : Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216; [2008] 3 NZLR 649 at 674-675 [118]. I mention this because an issue which has arisen in misfeasance cases is whether a public officer, faced with a statutory decision as to which there may be some legal uncertainty as to which way to go, ought seek legal advice. If legal advice has been sought, whether the advice is considered right or wrong, the fact that the public officer sought legal advice is itself significant. That is what Ms Gale did here. The fact that she obtained legal advice (and acted on it) operates against the Plaintiffs' case.
306It is important to bear in mind, at this point, that it was open to the Plaintiffs on and after 27 March 2006, to appeal to the Land and Environment Court under s.96(6) EPA Act because of the deemed refusal by effluxion of time. The fact that the Plaintiffs did not do so is, in my view, relevant to the misfeasance claim, as well as the negligence claim. It provides a contemporaneous indicator that the Plaintiffs considered that their best chance of obtaining a favourable outcome was to proceed with the application to the Defendant, knowing that Ms Gale was the relevant officer. This is not a case where Ms Gale acted and spoke to the Plaintiffs in a manner which lulled them into a sense that a favourable outcome was likely whilst, at the same time, acting in a contrary way. At all relevant times, Ms Gale expressed to Mr Warnes and Mr Maruncic the concerns which she had with respect to the issues raised by the application.
307Following receipt of the Sparke Helmore legal advice in April 2006, Ms Gale accepted that advice and proceeded upon the basis that the application was to be treated as a s.96 application. This did not mean (as the advice itself stated) that the application did not involve significant alterations to the development. Nor did it mean that the process which was to follow involved a ready approval of the application.
308It is true that the process took a considerable time as the months passed in 2006 and into 2007. However, a principal reason for this delay was the constant amendment of plans submitted by the Plaintiffs. I do not think that the passage of time greatly assists the Plaintiffs. At any time after 27 March 2006, they could have commenced proceedings in the Land and Environment Court, taking the process away from the Defendant and Ms Gale. They did not do so.
309Ms Gale was aware that Mr Maruncic and Mr Warnes were communicating directly with East Ward Councillors to lobby support for the application. There was nothing wrong with this: McGovern v Ku-Ring-Gai Council at 514 [59]. However, the fact that it was happening emphasised that Ms Gale was not the sole point of contact between the Plaintiffs and the Defendant. In a case where the Plaintiffs contend that Ms Gale intended to harm them by a process of acts and omissions, it is significant that the Plaintiffs themselves had an opportunity, which they utilised fully, to communicate directly with Councillors orally and in writing, in support of the application. This factor operates against a finding that Ms Gale intended to harm the Plaintiffs.
310It is the fact that the question of Department of Planning concurrence arose for the first time in July 2006. Ms Gale and Ms Laidlaw gave evidence to explain the timing by reference to a two-stage approach. There was controversy in this respect, with Mr Warnes rejecting such an approach. I bear in mind that the question is not one of "best practice" in the planning area or whether it was desirable that the concurrence issue be raised earlier.
311I am considering this issue in the context of proceedings where the Plaintiffs allege that Ms Gale intended to harm them and, to this end, deployed relatively late in the process the possibility of Department of Planning concurrence to drag out the process. I am not satisfied that Ms Gale was so motivated at the time when the Department of Planning concurrence issue was raised or thereafter.
312If the position was as clear cut as the Plaintiffs contend, the expectation would be a prompt response from the Department of Planning that concurrence was not required, and that the Defendant should get on with the determination of the s.96 application. Instead, as mentioned earlier, the correspondence from the Department of Planning suggested the need for caution and did not immediately exclude a requirement for concurrence.
313Once again, with the benefit of hindsight, it might be thought that the legal position was clear. However, the contemporaneous reaction of officers of the Department of Planning suggested that the position was far from clear. Further, at this point, Ms Gale once again sought independent legal advice from Sparke Helmore. The evidence points to concern on the part of Ms Gale and other officers of the Defendant as to the necessary process to be applied, with independent legal advice being sought to assist the Defendant and Ms Gale. This was against the background that, as Ms Gale knew, the Department of Planning had given concurrence in 2005 for a s.96 application concerning "Cote D'Azur" .
314All of this is quite inconsistent with the Plaintiffs' claim that Ms Gale was intending to harm them and, to that end, was engaging in a type of charade to delay the process by raising, late in the piece, the prospect of Department of Planning concurrence being required.
315I do not accept that Ms Gale was required to undertake a form of iterative process, involving two-way communication between Mr Warnes and Mr Maruncic and herself. Once again, the issues for this Court are not what was desirable or "best practice" in the planning area. In any event, there was an ongoing process of communication between Mr Warnes and Mr Maruncic on the one hand, and officers of the Council (including Ms Gale) on the other. These communications extended beyond contact with Ms Gale and included, as the recital of evidence above indicates, communications with Mr Anson and other officers of the Defendant.
316The fact that, from time to time, the Plaintiffs furnished amended plans and then further amended plans, indicated that there was some understanding on the Plaintiffs' part as to areas of concern on behalf of the Defendant and its officers. I do not accept that it was necessary for the Defendant to tell the Plaintiffs what the Defendant would approve, so that the Plaintiffs could then submit a proposal using that formula. Although the evidence of Mr Warnes, Ms Laidlaw and Ms Gale touched upon different approaches on the part of town planners working for councils as to the way in which a s.96 application might be progressed, no witness expressed the opinion that it was either appropriate or necessary for a council to tell an applicant what it would accept, so that the applicant could then submit exactly that.
317I have considered earlier (at [188] and [190]) the Plaintiffs' argument concerning the use by Ms Gale of Mr Warnes' letter of 5 April 2007 (based upon Mr Mather's letter of 4 April 2007). To the extent that the Plaintiffs' argument is that Ms Gale misled Councillors by suppressing information concerning the height of "Cote D'Azur" and the height of "Milan Towers" between April and June 2007, it is once again pertinent to mention that Mr Warnes and Mr Maruncic were maintaining a regular line of communication to Councillors in support of the application. Communications were made directly to Councillors, and Ms Gale was not the sole line of communication.
318Further, the manner in which the height issue was addressed at the hearing, through the evidence of witnesses and the submissions of the Defendant, demonstrates the complexity of the topic. The evidence at its best, from the point of view of the Plaintiffs, is that Ms Gale did not include in material to Councillors a possible argument based upon Mr Warnes' letter concerning the height of "Cote D'Azur" .
319This is not a case where there was a clear and reliable piece of information which Mr Mather had provided to Mr Warnes, and which Mr Warnes had provided to Ms Gale, with Ms Gale thereafter concealing it from Councillors. Rather, Mr Warnes had advanced an argument which Ms Gale did not pass on in terms to the Councillors.
320Once again, I observe that the issue here is what this feature of the evidence indicates concerning the intention of Ms Gale at the time. I am far from persuaded that this aspect supports a conclusion that Ms Gale intentionally suppressed material in a manner indicating a desire to harm the Plaintiffs. If the position was as clear as the Plaintiffs now contend, it would have been a risky approach indeed for Ms Gale to intentionally omit a piece of information to be provided to Councillors, given that the Plaintiffs were themselves providing information direct to Councillors as well.
321In my view, the Plaintiffs have fallen far short of demonstrating that Ms Gale intended to cause harm to them in her involvement with the s.96 application between February 2006 and June 2007. The Plaintiffs have not established this element of the tort of misfeasance in public office.
322In light of this finding, it is not necessary to consider the next step if a finding of intention to cause harm had been made. If, as I accept, Ms Gale had a genuine belief at all times that she was applying and not breaking the law, then it may be that the Plaintiffs would not have succeeded on this tort in any event. However, as I have said, this issue does not arise.
323Insofar as the Plaintiffs' case for misfeasance in public office has, at times, been said to arise from recklessness on the part of Ms Gale, a fundamental problem for the Plaintiffs is that she sought independent legal advice in April 2006, October 2006 and April 2007 in a manner which stands in the way of a finding in the Plaintiffs' favour on that issue. I am not persuaded that a case of misfeasance in public office based on recklessness has been established by the Plaintiffs.
324Given these findings, it is not necessary to consider a further question, namely whether the Defendant could be vicariously liable for alleged misfeasance in public office on the part of one of its officers. If this point had been reached, I would have been inclined to accept that vicarious liability would be open. However, the issue is not free from doubt: Jones v Swansea City Council [1990] 1 WLR 54 (Court of Appeal), Revd [1990] 1 WLR 1453 (House of Lords); Aronson, above, at 44-48.
325The Plaintiffs have not established the tort of misfeasance in public office in this case.
[11]
Negligence
326As mentioned earlier, the Plaintiffs' claim in negligence represents a secondary position. This is understandable given the issues raised in the proceedings and the necessity to satisfy the requirements of the Civil Liability Act 2002 .
327I have referred earlier to statutory provisions which bear upon the Plaintiffs' claim in negligence.
328The ascertainment of whether a duty of care was owed by the Defendant to the Plaintiffs takes, as a necessary starting point, the legislation in question.
329A significant issue affecting the question whether a duty of care is owed is the ability of the Plaintiffs, at any time after the passage of 40 days from the lodging of the s.96 application, to appeal to the Land and Environment Court under s.96(6) EPA Act. The statement of Wood J (as his Honour then was) in Coshott v Woollahra Municipal Council (1988) 14 NSWLR 675 at 681 is pertinent:
"What to my mind distinguishes the present from those cases where a duty of care has been found is the deemed refusal of consent where there has been no determination within forty days, and the right of appeal then conferred. The plaintiffs could not have had any legitimate expectation that their application would necessarily be approved, and they could not have relied on a favourable exercise of the powers conferred upon the consent authority. The outcome of their application depended on the many factors referred to in s 90, and the response of any persons qualified to lodge an objection to the proposal.
Clearly, the legislature contemplated the possibility that development applications would not be processed within the respective periods laid down, and provided for that contingency by conferring a deemed refusal accompanied by a right of appeal."
330In Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 25-26, the Court of Appeal described (without criticism) Coshott v Woollahra Municipal Council as authority for the proposition that a council did not have a duty to assess an application promptly. However, the Court observed that the duty asserted in Avenhouse v Hornsby Shire Council was a duty, having approved an application, to process it within a reasonable time.
331In my opinion, Coshott v Woollahra Municipal Council remains helpful when considering a situation such as this, where the Plaintiffs have made a s.96 modification application. The presence of the appeal avenue under s.96(6) supports a construction that a council does not owe an enforceable duty of care (in tort) to an applicant to assess an application promptly.
332It is critical to the determination of whether a duty of care is owed to protect a plaintiff, as a member of a class of persons whose economic interests are to be protected by such recognition of the duty, to identify the "salient features" of the relationship: Makawe Pty Limited v Randwick City Council [2009] NSWCA 412; 171 LGERA 165. The Plaintiffs contend that an examination of the salient features in this case will demonstrate that a duty of care was owed by the Defendant to the Plaintiffs and that that duty was breached in the circumstances of this case. The Defendant advances a contrary submission.
333In considering the Plaintiffs' claim that they were owed a duty of care by the Defendant because of their vulnerability, it is appropriate to bear in mind the observations of McPherson JA (Gerrard JA and Chesterman J agreeing) in The Beach Club Port Douglas Pty Limited v Page [2005] QCA 475; (2006) 1 QdR 307 at 314 [21]:
"This leads naturally on to the plaintiff's claim that a duty of care was and is owed to it because it was 'vulnerable' to the loss and damage it claims to have sustained and was unable to protect its interests against it. So, in a sense, it was. It is a direct consequence of legislative action in affording to specified persons, of whom the defendant is one, the right to appeal against Council decisions granting development permits in respect of land. But the plaintiff was in that respect no more vulnerable than any other developer or applicant for a permit in similar circumstances. Vulnerability in this context was said in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.
... not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, 'vulnerability' is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant.
Here the plaintiff's mistake lay in its own failure to build into its plans and arrangements for obtaining finance, its pre-selling units in the proposed resort, and its construction of the building the possibility that someone would 'negligently' appeal under the Act and throw its carefully laid plains into confusion. From where we sit, it is a rare event to see a development proposal that does not encounter some such opposition that causes delays to its planned completion. On the other side of the line, the defendant in appealing might be seen as simply protecting his business interests for as long as possible against unwelcome competition. Provided he has not inflicted financial harm by adopting unlawful or conspiratorial means, the decision in Allen v Flood [1898] AC 1 suggests that he may do so without incurring civil liability in damages to the plaintiff."
334It is necessary to have regard to the cumulative effect of the salient features in this case: Makawe Pty Limited v Randwick City Council at 171-172 [17]. I accept the Defendant's submission that the salient features of this claim (which alleges a duty of care in respect of economic loss) are:
(a) vulnerability, meaning an inability on the part of a plaintiff (as a member of a relevant class) to protect him or itself from the economic losses: Woolcock Street Investments Pty Limited v CDG Pty Limited [2004] HCA 16; 216 CLR 515 at 530-531 [22]-[24];
(b) reliance (as a matter of fact) on any representation or conduct which is reasonably foreseeable;
(c) degree of control exercisable by the Defendant;
(d) consistency with the statutory regime under which the duty is said to arise;
(e) coherency with legal principles which afford or preclude remedies.
335It has not been demonstrated that the Plaintiffs were vulnerable in the relevant sense. They were not vulnerable in the sense of being unable to protect themselves from the consequences of what they contend was the Defendant's want of reasonable care, either entirely or at least in a way which cast the consequences of loss on the Defendant: Woolcock Street Investments Pty Limited v CDG Pty Limited at 530 [23]; Makawe Pty Limited v Randwick City Council at 180 [52], 181-182 [63] and 192 [139].
336The Plaintiffs were able to protect themselves from the consequences of a lack of reasonable care by the Defendant in its assessment of the s.96 application, by taking legal advice (as they did), retaining a planner to advance their case to the Defendant (as they did with Mr Warnes) and (should they wish) by appealing to the Land and Environment Court under s.96(6) at any time after 27 March 2006, a step which would take the whole process away from the Defendant and place it before a new decision maker, the Court.
337I do not consider that the financial pressures under which the Plaintiffs were operating, taken alone or in conjunction with other factors, rendered them vulnerable for the purposes of determining whether a duty of care was owed.
338Further, though it was foreseeable to the Defendant that the exercise of power to refuse the s.96 application may cause economic detriment to the Plaintiffs, the Plaintiffs have not demonstrated reliance on any representations or conduct by the Defendant.
339For these reasons, I am not satisfied that a duty of care existed as between the Defendant and the Plaintiffs in the circumstances of this case.
340Even if a duty of care arose, however, I am not satisfied that the Plaintiffs have established any breach of such a duty. I have made factual findings earlier which bear upon this issue as well. The Defendant and its officers progressed the application, taking legal advice at different stages in circumstances which were appropriate.
341The Plaintiffs submitted that the conduct of the Defendant's employed staff in respect of the s.96 application was of a character that was so unreasonable that no reasonable authority with like power could properly consider the acts and omissions to be a reasonable exercise of them: ss.43 and 43A Civil Liability Act 2002 . As Allsop P observed in Precision Products (NSW) Pty Limited v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102 at 141 [175], such wording can be seen to have its source in what is often referred to as "Wednesbury unreasonableness" ( Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 229-230). The rigorous nature of this test is well known.
342I record my conclusion that the demanding test provided for in these provisions is not made out in this case. The evidence including that of Mr Warnes, does not provide a foundation for such a finding and, when regard is had as well to the evidence of Ms Gale and Ms Laidlaw, the Plaintiffs cannot succeed in satisfying this statutory test.
343I reject the Plaintiffs' claim against the Defendant in negligence.
[12]
Causation and Damages
344I have recorded my conclusions that the Plaintiffs have not succeeded in establishing either cause of action upon which they sue. Accordingly, it is not strictly necessary to consider issues of causation and damages. However, as against the possibility that a later need may arise for these matters to be considered, I should record shortly my conclusions on these issues.
345I have mentioned earlier (at [282]-[285]) the difficulties which affect the Plaintiffs' claim on issues of causation. By about 13 November 2006, the Plaintiffs' difficulties were such that the mortgagee had taken possession of the Church Street site. In March 2007, the mortgagee sought to withdraw the s.96 application, in circumstances which gave rise to legal controversy.
346I have already mentioned that one of the Plaintiffs' problems is proving relevant facts that could constitute (in particular) the tort of misfeasance in public office as at a particular time. The later any tortious conduct occurred, the more difficult is the Plaintiffs' position from the point of view of causation and damages. As it happens, I have rejected the Plaintiffs' claims in their entirety.
347I note that the Plaintiffs contend that, but for the misfeasance or negligence of the Defendant, they could have obtained refinance before 13 November 2006. However, I accept the Defendant's submission that there is no evidence that the Plaintiffs would have been able to refinance the mortgage, even if the s.96 application had been approved. The Plaintiffs have not demonstrated that finance was available, or likely to be available if consent was obtained. The highest point reached by the evidence was that of Mr Maruncic expressing confidence (or hope) that he would be able to refinance with a number of different lenders or joint venturers.
348Mr Maruncic's case in damages is that his company, the First Plaintiff, lost the chance of realising a profit upon the sale of units in "Milan Towers" over the period from 2006 until 2010. The sales period was agreed between the expert valuers.
349I accept the Defendant's submission that the Plaintiffs' case in this respect attracts a number of difficulties. As the mortgagee took possession of the Church Street site on about 13 November 2006, any loss of chance should relate to a proposal promoted before that date. It is difficult to see how the Plaintiffs' attack upon the handling of the s.96 application after 13 November 2006, if established, could assist them on a claim for damages based upon a loss of chance of realising a profit upon the sale of units.
350In order for a loss of a chance to realise a commercial opportunity, the Court must be satisfied, on the balance of probabilities, that some loss would have been suffered: Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 at 364; Tabet v Gett [2010] HCA 12; 240 CLR 537 at 560 [50], 578 [111]. The chances of profit being realised are to be assessed as a matter of probability: Sellars v Adelaide Petroleum NL at 348-355, 364.
351If this point had been reached in the proceedings, I would have accepted the Defendant's submission that the Plaintiffs have not proved, on the balance of probabilities, that a profit would have been realised, for the reasons set out at paragraph 407 of the Defendant's principal written submissions dated 21 October 2010 (pages 88-89).
352In these circumstances, I would have concluded that the Plaintiffs' prospects of realising a profit were so low that the Court would not find that the prospect permitted a sensible chance.
353Accordingly, even if either of the Plaintiffs' causes of action had succeeded as to other elements (which is not the case), I would have determined that the Plaintiffs had not established an entitlement to damages.
354I note that this conclusion does not depend upon which valuation expert was to be accepted. The problem for the Plaintiffs is more fundamental than that. However, if the point had been reached, I would have accepted and applied the approach adopted by Mr Cesta, the Defendant's valuation witness.
[13]
Conclusion
355The Plaintiffs have not established either of their causes of action in misfeasance in public office and negligence. The Defendant is entitled to a verdict in its favour.
356The ordinary rule is that costs should follow the event. There does not appear to be any reason why the ordinary rule should not apply in this case. I will make an order that the Plaintiffs should pay the Defendant's costs of the proceedings.
357If, however, either the Plaintiffs or the Defendant seek a different order as to costs, I will allow the parties an opportunity to approach the Court in that respect.
358I make the following orders:
(a) verdict and judgment for the Defendant;
(b) the Plaintiffs are to pay the Defendant's costs of the proceedings;
(c) if any party seeks an order as to costs different to that contained in order (b) above, written application is to be made in that regard to my Associate no later than 17 February 2012.
[14]
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: 22 December 2011
Inconsistency with Council's Development Standards relating to Height, Density & Floor Space Ratio - concerns with respect to height and density were reflected in Council's Notice of Intent to Refuse the application dated 28 April 2006. Notwithstanding, further consideration of the proposed plans has identified a variation to Council's Floor Space Ratio (development standard) which was also not clearly outlined in the original Section 96 modification submitted. Therefore, Council's concern [sic] extend now to include the exceedance [sic] in Floor Space Ratio. At this time no further information has been submitted in support of the modification as outlined above to address these inconsistencies with Council's LEP 2000 and relevant DCPs. It is noted that these variations are considered major variations to Council's requirements and therefore, unacceptable.
Contrary to the public interests and expectations, of an orderly and predictable built environment - these concerns and lack of merit of the proposed modifications are reflected in Council's Notice of Intent to Refuse the application dated 28 April 2006.
Public Exhibition of Modification Application - Council has re-exhibited the proposed S.96 modification and submissions were received raising objection to the proposed amendments. The main areas of concern are summarised as follows:-
The development does not comply with Council's Minimum Area per Dwelling (ie. density) development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable.
The development does not comply with Council's Height development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable.
The development is contrary to the public interests and expectations, of an orderly and predictable built environment."
149At this point, it appears that Mr Maruncic sought legal advice. On 4 December 2006, Mr Mario Bechelli of Kingston Smith, Solicitors, wrote to the Defendant in the following terms (Exhibit E, Tab 30):
"We advise that we act for Michael Maruncic. We refer to your Notice of Intention to Determine Modification to Development Consent No 16-2000-380-1 for 25 medium density units dated 30 November 2006.
In order to address the issues raised in the notice, we have been instructed to raise the following issues:
Our client's application was lodged pursuant to section 96 of the Environmental Planning & Assessment Act 1979. Section 96(2) allows a consent authority to modify a consent if it is satisfied that the development to which the consent as modified relates is substantially the same development. The section does not require the Department of Planning to provide its concurrence. In the circumstances upon what basis is paragraph 1 of the schedule to the notice relevant?
In relation to paragraph 2 of schedule 1 of the notice, we do not understand how it is that the council on the one hand satisfied itself that the development to which the consent as modified related was substantially the same development, such as to have accepted our client's application pursuant to section 96 yet on the other hand determined that the extent of variation to the standard in relation to density is unacceptable The propositions are incompatible. Please provide an explanation.
3 Our comments in relation to paragraph 2 of the schedule to the notice are equally applicable to paragraphs 3 & 4. In relation to paragraph 4 it is inconceivable that a development which is considered contrary to the public interests and expectations could have been considered to be substantially the same development to that which consent had been granted.
In view of the above, council's reasons as contained in the notice are considered to be unsatisfactory and we request an urgent reply to the issues raised in this letter and m any event no later than Thursday of this week."
150On 7 December 2006, Mr Bechelli of Kingston Swift wrote to Mr Broyd in the following terms (Exhibit E, Tab 30):
"We refer to our letter dated 4 December 2006 and note that we requested a reply by today.
The reason for the urgency is that as you may be aware, our client's mortgagee has taken possession of his property and there is to be an auction on 13 December 2006. The only way our client can stop the sale is to re-finance the mortgage, and the only way this can be done is if council provide him with the development consent that he has sought. The situation is therefore urgent.
As indicated in previous correspondence, our client will look to council for any damages which he suffers as a result of the council failing to properly consider his application."
151Following the mortgagee taking possession of the Church Street site on or about 13 November 2006, an auction was held on 13 December 2006 (attended by Mr Maruncic) at which no bid was apparently made, with the property being passed in (Exhibit 26, paragraphs 11.2-11.4).
152On 13 December 2006, Ms Gale referred the correspondence by facsimile from Kingston Swift to Sparke Helmore for advice (Exhibit E, Tab 30):
"Dianna, please find enclosed correspondence from Kingston Swift Solicitors re: Milan Towers S.96 Application to Development Consent 16-2000-380 - No.11 & 13 Church St, Nelson Bay.
At this stage I forward this to you for your information given our previous consultation and direction on this matter.
I'm in the process of drafting a response to this correspondence and will determine at this time whether there is the need to refer a draft to you for advice."
153Ms Gale followed up her facsimile by email to Ms Grant of Sparke Helmore on the morning of 14 December 2006. By return email sent later that morning, Ms Grant confirmed receipt of the facsimile and said (Exhibit E, Tab 30):
"I note the lawyers' claim that they will be seeking damages from Council. You don't need to address this in letter [sic] , but I do not believe that the applicant has an action in damages. His only realistic option is to either lodge a Class 1 appeal against the deemed refusal, or commence Class 4 Proceedings seeking a declaration that the development is substantially the same, or proceedings challenging the reasonableness of Council's assessment ...
Will be interesting to see what arises out if this (if anything, given the bank is now moving in!)"
154Ms Gale prepared a draft response to Kingston Swift dated 12 December 2006, but the draft was not sent. Once again, given the nature of the Plaintiffs' challenge to Ms Gale in these proceedings, the draft letter (although not sent) constitutes a contemporaneous note of Ms Gale's then thought processes with respect to the application. For this reason, it is useful to set out the terms of the draft letter (Exhibit E, Tab 30):
"Reference is made to your correspondence received by Council on 6th and 7th December 2006 in relation to the above mentioned Section 96 modification and Council's Notice of Intent to Refuse the Modification application dated 30 November 2006. The following advice is provided.
Lodgement of a Section 96 Modification to Development Consent was considered acceptable in this instance. The proposal is seeking a further variation to a Development Standard (ie. height) pursuant to Port Stephens Local Environmental Plan 2000 which is required to be assessed on its merits.
Council can determine applications for building height up to a maximum of 15.0 metres. This is based upon Assumed Concurrence from the Minister for buildings over 14.0 metres and not exceeding 15.0 metres in the Residential zone pursuant to The Hunter Regional Environmental Plan 1989.
The current Section 96 modification proposes a further increase in height. Whilst a formal SEPP 1 Objection is not required with a Section 96 application, a further departure in height requires concurrence from the Department pursuant to the Hunter Regional Environmental Plan 1989.
Council obtained legal advice relating to this current Section 96 modification. Council is required to consider the merits of this proposal, in particular, the extent of departure or variation to Council's development standard (ie. density) under Local Environmental Plan 2000. In assessing the variation, Council considered such a departure to be an unacceptable variation given the scale, extent and impacts.
As noted above. Council assessed the Section 96 application based on legal advice. The development as proposed remains substantially the same, given the development continues to be a residential apartment building. In undertaking a merit assessment, it is considered that the extent or departure in height is unacceptable.
In respect to Paragraph 4 of Council's Notice of Intent to Refuse, whilst it has been established that the development as proposed is substantially the same development, meaning it remains a residential apartment Building, the variations are considered unacceptable given the scale, extent and impacts. Therefore, the development is considered contrary to the public interests and expectations, of an orderly and predictable built environment."
155On 1 January 2007, the Plaintiffs wrote to the Defendant referring to the development then consisting of 42 units. Some of the plans supplied at that time referred to 40 units, whilst others referred to 42 units or 43 units (Exhibit 14, Gale affidavit, 25 June 2010, paragraph 24).
156On 8 January 2007, Ms Gale prepared a draft letter to the Department of Planning (Exhibit E, Tab 32).
157A letter dated 23 January 2007 from Mr Maruncic sought further urgent action from the Council having regard to his financial situation (Exhibit E, Tab 31).
158On 30 January 2007, Mr Warnes wrote to members of the Defendant Council in advance of a meeting scheduled for 5 February 2007. It is appropriate to set out the letter from Mr Warnes, which reflects the Plaintiffs' position at that time (Exhibit E, Tab 31):
"A meeting has been arranged at 2.00pm on Monday the 5 th February 2007 with the Mayor, Ron Swan. Councillor Baumann, Councillor Bob Westbury, the General Manager, Michel Maruncic and myself in an effort to resolve the long standing dispute that has arisen between the applicant, Michael Maruncic, Council and the Department of Planning In relation to a Section 96 Application to amend the existing consent for a residential apartment development at 11-13 Church Street, Nelson Bay.
The issues that have given rise to this situation are complex and need to be able to be discussed in a forum where each party can openly relate their position in the matter and it is for this reason that the Mayor has kindly agreed to have this meeting in an effort to resolve the dispute and move the matter to a conclusion. The S96 application involves the increase in height and density of an existing development that was approved under the former LEP at a height and density greater than that currently permitted fey Council's current LEP 2000.
The issue that has arisen is one where Council's Staff have advice from the Council's Solicitors that the matter is one which can be dealt with under S96 and as such the staff have dealt with similar matters to this and granted approvals. However when the matter was referred to the DOP their advice is that the matter cannot be dealt with in such a manner and therefore they have advised that they cannot concur in the matter which has resulted in the staff recommending that the application be refused amongst other things for lack of concurrence from DOP.
Mr Maruncic is unlike most developers in that this project is his sole development and is the culmination of his ... work which is to see a building of significant Architectural merit and high private amenity constructed at Nelson Bay where he will live out his retirement years. Unfortunately due to the significant delays that have been encountered in this matter Mr Maruncic now faces the prospect of having his financiers sell him up if he cannot get this matter resolved as quickly as is possible.
It is for these reasons and based upon advice from a colleague of yours that we invite you to also attend the meeting such that your fellow Councillors can gauge your support or otherwise for the proposal and so that you can ask any questions of the people assembled to satisfy yourself as to whether the development should receive your support Your attendance at this meeting would be appreciated. If you can see your way clear to attend the meeting I would ask that you inform the Mayor's Secretary of your intention to attend."
159On 5 February 2007, Ms Gale emailed Mr Murphy at the Department of Planning, seeking further clarification of the Department's earlier advice. Once again, given the challenge made by the Plaintiffs against Ms Gale, it is appropriate to set out the terms of this letter (Exhibit E, Tab 32):
"Reference is made to Council's referral of this Section 96 modification to the Department for concurrence and the Department's latest response received on 3 November 2006 and 20 November 2006 whereby, the Department have advised that concurrence will not be issued. Council makes the following comment in response to this advice and seeks further consideration be given to this matter by the Department.
Council notes the Department's advice to date that the modifications are considered to represent a significant departure from the original approved development application and Council concurs with this point that the departures are considered unacceptable and unable to be supported on merit grounds.
Council affords the following background information to assist the Department in further consideration of this matter and confirmation of the Department's position. Prior to lodgement of this Section 96 application the applicant made inquiries with Council regarding the proposed variations and requested Council's initial thoughts on the extent of changes proposed (ie. density and height). Council was uncertain at the time as to whether or not a Section 96 was in fact appropriate and suggested that a new development application may well be more appropriate. Notwithstanding this, Council expressed concern at the magnitude of variations and advised that it was extremely unlikely that support to such departures in density and height would be given by Council. Therefore, it was suggested to the applicant to pursue discussions with the Department in respect to lodgement of a new Development Application which the Minister would be the consent authority, not Council given the requirements of SEPP 71 - Coastal Protection Policy.
The applicant proceeded to pursue discussions with the Department in respect to lodgement of a new development application. Further consultation with Council was required, as part of the consultation process and Council provided written advice/comment to the applicant via a Development Assessment Panel Interview. This advice was provided to the applicant for submission to the Department, with the associated plans/documentation on the proposal for consideration.
A period of time lapsed and the applicant then returned to Council and lodged a Section 96 application. Council was informed that the Department had advised Council could deal with the proposal. The applicant also indicated to Council that during discussions with the Department, guidance was given in respect to reducing the bulk and scale of the built form proposed on plan.
Notwithstanding any discussions with the Department, Council upon receipt of this Section 96 application proceeded to seek legal advice primarily on whether Council has the power to determine the subject application pursuant to Section 96 of the EP&A Act 1979. Council has proceeded based on this legal advice to assess the proposed amendments pursuant to the subject Section 96 application.
Further, Council has obtained previous legal advice in regards to the use of SEPP 1 with Section 96 applications and Council concurs with the Department's view that a formal SEPP 1 objection is not required to be submitted with a Section 96 application. However, it is noted that based on legal advice the proposed departures are able to be lodged via a Section 96 application and that Council is required to assess such variations on their merits, without the need for lodgement of a SEPP 1.
In respect to the issue of concurrence, Council does not concur with the Department's view. Legal advice obtained suggests that the Department's failure to provide concurrence means that Council has no power to determine by way of approval the subject application. Notwithstanding, Council's assessment has resulted in a recommendation to refuse the subject Section 96, essentially on the inability to obtain concurrence, the merit grounds of such departures to Council's density and height requirements and on public interest grounds.
In conclusion, Council notes the Department's advice however based on legal advice obtained, Council has proceeded to assess this Section 96 application with a recommendation to refuse the application as outlined above. Since the issuing of a Notice of Intention to Refuse, the proposal has been called before full Council. Notwithstanding the merit grounds as outlined above included in the recommendation to refuse, the elected Councillors have been advised of Council's inability to determine this application by way of approval based on the fact that concurrence from the Department in respect to height has not been obtained and other merit grounds.
In discussions with relevant Councillors and the applicant, a request for direction and clarification of the Department's advice has been made. Therefore, Council requests clarification of the Department's position in respect to this matter at your earliest convenience or by the 16th February 2007 to enable progression of this matter. Given the legal nature of these issues, it is also suggested that a need may exist for both the Department's and Council's legal representatives to meet and discuss these areas as outlined to facilitate clear direction and enable this application to progress to some form of determination. Please advise Council if the Department sees value in both legal representatives meeting and Council will undertake to make the necessary arrangements via our legal representatives."
160On 7 February 2007, Mr Warnes sent an email to the Mayor of the Defendant, Mr Ron Swan, requesting that he pursue the matter through the General Manager "given the deadlines set for" Mr Maruncic (Exhibit E, Tab 33). An accompanying letter of the same date referred to the meeting which had taken place between the Mayor, two East Ward Councillors, the Defendant's Planner and the General Manager and Messrs Warnes and Maruncic. The letter gave an account of events and concluded (Exhibit E, Tab 33):
"Mr Mayor we ask that you press the General Manger [sic] and his staff to urgently respond to this matter as Michael has only been given to the 15 th of this Month to regain control over the site by his financiers or face bankruptcy."
161In a letter of 7 February 2007, Mr Warnes indicated that the application had been "reduced" to seek approval for 42 units, with a maximum height of 21.4 metres NGL (Block A) and 21.8 metres NGL (Block B) excluding the lift overrun. The letter stated that, as the buildings were set below street level, they would "read" as "some 20.8 metres" . The letters referred to attached plans, including a 3D diagram (Exhibit 14, Gale affidavit, 25 June 2010, paragraph 25).
162On 7 February 2007, Mr Peter Gesling, the General Manger of the Defendant, wrote to Mr Maruncic in the following terms (Exhibit E, Tab 34):
"Further to a recent meeting with the Mayor and I regarding your proposed development in Nelson Bay, it is acknowledged that the approval process has been prolonged for a number of reasons.
I can confirm that the Council is still assessing your application. This has been, and is, complicated with the possible requirement for concurrence from the Department of Planning. There are still substantive issues being assessed. These are height and density which, in the application, are significantly in excess of the provisions in Council's Local Environmental Plan and Development Control Plan. Both, therefore, have significant merit implications.
While the professional staff have indicated their view to recommend refusal, Councillors have requested that the application be determined by the Council as is their statutory right, consideration cannot occur until the Department of Planning advises on its right of concurrence. Unfortunately, I am unable to advise the timeframe for its decision. As agreed at the meeting, confirm Council's agreement to pursue an answer from the Department as soon as possible."
163On 12 February 2007, the Department of Planning replied to earlier correspondence from the Defendant in the following way (Exhibit E, Tab 35):
"I refer to council's letter of 1 February 2006, seeking further clarification of the Department's position, as outlined in letter dated 30 October 2006, to a s96 modification of development consent in relation to the abovementioned tall building.
Advice has been sought from the Department's Legal and Coastal Assessments Branches in relation to this matter. Legal Branch has advised that Clause 58 of the Hunter REP only applies where a development application (DA) is under consideration and council is to consent to the application. Clause 58 does not require the council to seek the Director General's concurrence for s96 modification applications.
Notwithstanding this advice and council's own legal advice I reiterate that it is the Department's view that the proposed modification represents a significant departure from the original approved DA. Two additional levels are proposed and the number of units increased from 25 to 41. Coastal Assessments Branch has advised that in these circumstances the Department's normal practice would be to require a fresh DA to be lodged. Also no formal advice was ever provided by the Department to either the applicant or council suggesting that the current proposed development could be progressed as a 96 modification of consent. However, it is recognised that it is ultimately the consent authority's decision whether or not/ to accept a s96 modification of consent application.
Finally it is noted that council's assessment of the proposal has resulted in a recommendation to refuse the application on merit grounds. Council would be aware that if a new DA was to be lodged the Minister for Planning would be the consent authority under Part 3A of the Act."
164Thus, the Department of Planning indicated (contrary to views in earlier correspondence) that concurrence was not required for the Plaintiffs' s.96 application. That said, the Department of Planning response did not suggest that there was a clear-cut and obviously favourable outcome which should result for the Plaintiffs' s.96 application. To the contrary, the Department of Planning used guarded language and expressed concern about the scale of the application. It might be thought that this would have the effect of maintaining a degree of caution on the part of officers of the Defendant, including Ms Gale. Given the Plaintiffs' causes of action, this is a pertinent consideration.
165On 13 February 2007, Ms Gale sent an email to all Councillors to advise the current status of the Plaintiffs' application (Exhibit E, Tab 36). The lengthy email noted that the s.96 modification application "has been tentatively called to Council by CR Westbury" and that a "number of meetings have been held during the assessment with relevant East Ward Councillors" . Ms Gale identified the main areas of concern in a manner which may be summarised as follows:
(a) the 41-unit proposal exceeded the density requirement of one unit/150 square metres (LEP 2000), with the density being one unit/61.37 square metres (that is, 41 units into a total site area of 2,516 square metres);
(b) the floor space ratio was proposed as 2.2:1 which exceeded the LEP 2000 requirement of 1.8:1;
(c) the maximum height of Blocks A and B (at north-east corner) was measured by Council as 24.15 metres NGL (Block A) and 24.15 metres NGL (Block B), with it being noted that it was "difficult to make an assessment of the maximum height (as measured from Finish Ground Level) based on the limited information shown on plan and therefore, these areas of the [accompanying] Table have not been completed. Notwithstanding this, it is expected that the maximum height (as per Council's height definition) would be taken from Natural Ground Level, being the lowest point" .
166After making the above points, Ms Gale continued (Exhibit E, Tab 36):
"The Section 96 modification application was lodged in February 2006 with a number of revisions made in an attempt to reduce departures, in particular the height departure. However, the above reasons for refusal remain relevant and it is proposed that this matter needs to be progressed toward a refusal given the significant departures to Council's requirements.
Further, it is noted that there remains an issue in regards to whether or not Council is able to legally approve the modification application as both Council's and the Department of Planning's legal representatives have differing opinions as to whether or not the Department has a concurrence role. The Department have not granted concurrence and do not consider they have a concurrence role in this instance. Further, the Department have noted that the proposed modification represents a significant departure from the original DA and that the Department's normal practice would be to require a fresh DA to be lodged.
Based on the above assessment update, it is requested of Councillors that the S.96 application be determined by way of refusal under delegated authority through the Development Assessment Panel within the Sustainable Planning Group rather than being reported to full Council for determination.
In the event that that the application is required to be forwarded to Council [to be] determined it is advised that, further legal advice may be required in respect to the concurrence role issues, prior to finalisation of the Council report under the new reporting structure. Therefore, at this stage based on legal issues relating to concurrence, preparation of a Council report and Business Paper deadlines, the earliest anticipated date for a report to Council would be April 2007. The report would be recommending refusal based on the above reasons as outlined."
167On 14 February 2007, Ms Gale sought by email further legal advice from Sparke Helmore (Exhibit 14, Tab 27):
"In respect to the legal advice obtained to date I request confirmation of the legal opinion regarding this S.96 application.
I'm faced with having to forward a report to Council for determination (recommendation will be for refusal) however, several Councillors are of the mind to support this proposal and have therefore, confirmed the need to report it to Council for determination. Given, the complexity of the matter, the extent of departures and the advice of the Department verse our legal opinion, I need to request a final confirmation of the legal opinion on this matter, specifically relating to:-
We enclose for your information a copy of the Affidavit of Alan Charles Margerison sworn 12 December 2006.
No such proceedings have been commenced in the Supreme Court by our client. Our client is in possession of the above property as mortgagee in possession. We enclose a copy of the facsimile dated 7 December 2006 from Kingston Swift, the solicitors for the registered proprietor of the property Milan Maruncic, addressed to our office confirming that our client is in possession of the property.
Please see paragraph 2 above.
With respect, the provisions of Section 111 of the Conveyancing Act 1919 do not apply in this instance, please see section 111 (1) of the Conveyancing Act 1919. Rather, the provisions of section 57 of the Real Property Act 1900 apply. We enclose for your information a copy of the notice of Default issued pursuant to section 57(2)(b) of the Real Property Act 1900 and Affidavits of Service sworn 23 June 2006.
As Council is to issue a determination on the relevant section 96 application by the end of March 2007, our client has instructed us that at this time they do not wish to withdraw the section 96 application.
Please ensure that a copy of Council's determination relating to the section 96 application is forwarded to our office in due course.
We look forward to hearing from you however, should you have any questions regarding this matter please do not hesitate to contact our office."
180On or about 13 March 2007, Aussec transferred the benefit of the mortgage over the Church Street site to DJ Capital (Exhibit 26, paragraph 11.5).
181On the morning of 13 March 2007, Mr Warnes sent an email to all Councillors of the Defendant which attached what was described as "our last desperate plea" for Mr Maruncic (Exhibit E, Tab 43).
182Later on the morning of 13 March 2007, Mr Warnes provided additional information to Mr Anson and to Ms Gale, referring to amendments to the plans with the development now being for 40 units (Exhibit E, Tab 43; Exhibit 14, Gale affidavit, 25 June 2010, paragraph 26).
183On the evening of 13 March 2007, the Plaintiffs' application was considered by the Combined Strategic/Operations Committee by reference to a report of Mr Anson (Exhibit E, Tab 44). The Committee determined that the application should be deferred to allow staff to assess the amended plans submitted by the Plaintiffs earlier that day, including readvertising, and that the matter be brought back at the April 2007 meeting if possible (Exhibit E, Tab 43).
184On 20 March 2007, Mr Maruncic lodged further plans for a 38-unit proposal, with a claimed reduction in height of 2.3 metres to 22.17 metres (Block A) and 22.93 metres (Block B) (Exhibit E, Tab 44).
185The plans provided on 20 March 2007 were publicly exhibited from 29 March 2007 to 11 April 2007 (Exhibit 14, Gale affidavit, 25 June 2010, paragraph 39).
186On 30 March 2007, DJ Capital exchanged contracts with Expoe Pty Limited ( "Expoe" ) for the Church Street site (Exhibit 26, paragraph 11.6).
187On 5 April 2007, Mr Warnes wrote to Mr Gesling in the following terms (Exhibit E, Tab 45):
"It is understood that Michael Maruncic has an appointment with you today to deliver additional information to the Council in respect of his latest amended plans for his development.
The information relates to survey and height deduction undertaken by local Survey firm Fagan, Mather Duggan Pty Ltd in relation to the amended plans and the height of the proposed development in respect of natural ground and that of the adjoining approved development.
In summary the information provided by the Survey firm confirms that the heights of the development now proposed by Michael Maruncic are 22.17 metres for block A (closest to Church Street) and 22.93 metres for Block B.
These reductions in heights are achieved from the earlier proposals by the reduction in floor to ceiling heights and the removal of the lift overrun by including the lift motor within the lift itself using the latest design of lift available that does not require lift tower placement above the last habitable floor.
These heights when compared to the development already approved and which adjoins the subject land to the east show that Building A is lower than the already approved adjoining building and that Building B whilst nominally higher than the adjourning building at 22.93 metres is likely to be lower than that adjourning building as the only plans available to the Survey Firm of that adjoining building indicate the Lift Tower as a half height overrun whilst the completed development has a lift that now exits on the roof level deck area and is therefore likely to be some 2 metres higher than both of Mr Maruncic's proposed buildings.
I understand that the number of units has been also been [sic] reduced to 38 and that the provision of car parking now exceeds Council's requirements.
It was notable that at the last Committee Meeting of Council that the number of amendments to the proposal were of concern to some Councillors however we would ask that you as the General Manager remind the Councillors that the number of amendments made by an applicant do not necessarily indicate a failure of the design but show instead the need for the applicant to ensure that any detail changes that occur as a result of engineering alterations need to be the subject of modification of consent.
Many of the earlier modifications of the original consent were the result of engineering detail changing and the latest series of amendments were as a result of the process that ensued between the applicant and Council's Planning Staff seeking to resolve detail in relation to car parking, vehicle manoeuvring and relative heights between the subject proposal and those adjoining."
188In this letter, Mr Warnes referred to information provided by Fagan, Mather Duggan Pty Limited. The evidence demonstrates that Mr Maruncic and Mr Warnes had been provided with a letter dated 4 April 2007 from Mr Mather (Exhibit E, Tab 45). There is controversy as to whether Mr Mather's letter was provided to Ms Gale and the Defendant or whether Mr Warnes' letter of 5 April 2007 was the only source for this information. I accept the evidence of Ms Gale that it was not received by the Defendant. The letter is not contained in the Defendant's records and Mr Warnes' letters do not assert that he supplied Mr Mather's letter to the Defendant. The real issue, however, concerns the relevance and the utility of the information conveyed by Mr Warnes (based upon Mr Mather's document) to the process of determination by the Defendant with respect to the Plaintiffs' application.
189What is clear is that Mr Mather's letter did not purport to be a survey of either "Milan Towers" or "Cote D'Azur" . Mr Mather agreed that there was no survey involved, with his involvement being "just a review of plans" (T571.49). Mr Mather explained the process which he undertook in his evidence. I accept the submissions for the Defendant that, in light of his evidence, Mr Mather did not purport to undertake an accurate height measurement of the size of "Cote D'Azur" . Mr Mather's letter dealt with the size of "Cote D'Azur" from basement to the top of the lift overrun, without regard to relevant LEP definitions of "height" in accordance with the decision of the Court of Appeal in Port Stephens Council v Chan Industrial Pty Limited [2005] NSWCA 232; 141 LGERA 226. The size of "Cote D'Azur" was estimated by Mr Mather to be 22.7 metres high. He achieved this figure by a process of assumption and additions so as to give rise to an estimate.
190Although a considerable amount of time was taken up at the hearing, and in submissions, addressing the role of Mr Mather's letter in this case, I do not, in the end, consider that it plays any significant part. In particular, I do not think that the letter demanded the approach submitted for the Plaintiffs. It was not essential that the information contained in Mr Warnes' letter (by reference to Mr Mather's letter) be included in papers that were provided ultimately to Councillors as part of the decision-making process. I am certainly not persuaded that the omission of reference to Mr Warnes' letter supports a conclusion that Ms Gale was, in some way, seeking to suppress this information from Councillors.
191On 2 and 10 April 2007, the Defendant received objections to the Plaintiffs' application, including a petition from some 90 local residents, objecting to the application on height and other grounds (Exhibit 1, Tabs 84, 86 and 87).
192On 11 April 2007, Ms Gale provided a letter (signed by Mr Anson) to Mr Warnes. The letter stated (Exhibit E, Tab 45):
"Reference is made to the above mentioned Section 96 application to modify the above development consent lodged on the 15 February 2006 and the following advice is provided for your attention.
Since lodgement of this Section 96 application, Council has received numerous revised sets of plans for this application which has made it difficult from an assessment and processing perspective as previously discussed.
In reporting this proposal to Council's Operations Committee Meeting on 13th March 2007, a further revised plan was submitted on the day of the Meeting. The matter was deferred for supplementary information to be provided which included a review of this revised plan.
During the preparation of this supplementary information, a further revised set of plans has been submitted (received 22nd March 2006) which is the revised plan that is being reviewed for the purposes of Council's request and is the revised plan which is currently being re-exhibited. This set of plans generally incorporated changes to density (now 38 units), height, removal of the lift overrun and carparking, and included revised documentation (received 5th April 2007) confirming by survey the maximum heights for this development.
Council is in the process of finalisation the supplementary information required to be completed by the end of this week and forwarded to Councillors for their consideration of this item at the Ordinary Meeting of 24th April 2007.
However, on the 10th April 2007 a further set of revised plans has been received without a covering letter explaining the changes (noted in red) on plan. There would appear to be only several small changes (noted in red) which are difficult to read.
As outlined above, Council is concerned with the numerous revised sets of plans received over time for this proposal and the difficultly in assessment and preparation of information for Council. Given the timeframes associated with finalising this information and re-exhibition of the proposed plans, Council requests your confirmation of the relevant plans for this proposal. Further, it should be noted that submission of further revised plans may result in deferral of this matter beyond the Ordinary Council Meeting in April.
Your earliest attention to this matter would be appreciated."
193On 12 April 2007, Mr Warnes responded to Ms Gale (Exhibit E, Tab 45):
"In response to your advice of the 11th April 2007 in relation to the re advertising of the further amended S96 application made by Michael Maruncic on the 25th March 2007 I am advised that the plans that are currently on exhibition are the same as the further sets of plans submitted to Council on the 10th April 2007.
Mr Maruncic assures me that these additional sets of plans were in addition to those provided for advertising in that he did not have sufficient sets of plans available at the time the further amendment was lodged with Council (25th March 2007).
Unfortunately I have not been provided copies of the most recent plans and therefore can only pass on the advices received from Mr Maruncic as to their consistency with those lodged earlier that is on the 25 th March 2007. On questioning Mr Maruncic as to the alterations shown in red on the latest set of plans provided to Council he has assured me that they are the same plans as provided on the 25 th March 2007 and that the lines shown in red are a correction to an internal wall placement that has no bearing on the density, height or external impact of the development.
Given these assurances I believe that Council should be satisfied that the plans it has advertised are the same as those now submitted. As previously stated these additional plans were provided so as to ensure that Council had sufficient copies of plans for the development should an approval issue from Council. The red corrections are understood to have no significance in relation to issues of density, height, or external impacts and relate to the moving of an internal wall.
Mr Maruncic's attention to this detail change was simply in an effort to be assured that should consent be issued that the relocated internal wall was the subject of that approval and would not be required to be the subject of a future amendment."
194Further objections to the application were received by the Defendant on 11 and 16 April 2007, and between 7 and 24 May 2007 (Exhibit 1, Tabs 90, 91, 94-102).
195In May and June 2007, Mr Maruncic wrote directly to Councillors on a number of occasions with respect to the application. On each occasion, he urged Councillors to support the application. In letters dated 21 May 2007, 4 June 2007 and 11 June 2007, he emphasised what he considered were the unique and important features of the development (Exhibit E, Tab 49).
196The application came before the combined Strategic/Operations Committee on 12 June 2007. A report of Mr Anson recommended that Council not support the s.96 modification application due to excessive height, density, floor space ratio and other non-compliances and further recommended that determination of the application be delegated to the General Manager (Exhibit E, Tab 50).
197A letter to Mr Maruncic from Mr Broyd advised him that, on 12 July 2007, the s.96 application had been determined by way of refusal. The reasons for the refusal were stated as follows (Exhibit E, Tab 51):
"1. The development does not comply with Council's Height limit development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable.
The development does not comply with Council's Minimum Area per Dwelling (ie. Density) development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable.
The development is contrary to the public interests and expectations, of an orderly and predictable built environment.
The development does not comply with both Council's Parking and Traffic Development Control Plan PS2 and Australian Standard: Parking facilities for off-street parking. The development does not comply with the required number of access carparking spaces. The development does not provide for carparking, appropriately located and without compromising compliance with adequate turning and passing areas on site."
The Expoe Application in 2007-2008
198Although it formed little part of the Plaintiffs' closing submissions, the Plaintiffs' case had been stated earlier as being based (in part) upon a comparison between the Plaintiffs' experience with the s.96 application in 2006 and 2007 and the approach of the Defendant to the application made by Expoe concerning the Church Street site in 2007 and 2008. I turn briefly to documents relevant to this aspect of the Plaintiffs' case.
199Expoe lodged a s.96 application on 18 September 2007 (Exhibit F, Tab 53).
200On 17 October 2007, Mr Maruncic objected to Expoe's s.96 application (Exhibit F, Tab 54).
201On 5 December 2007, Ms Gale sought legal advice from Harris Wheeler, Solicitors, as to whether the application ought be processed as a s.96 application (Exhibit F, Tab 58).
202On 8 January 2008, Harris Wheeler provided legal advice to the Defendant (extending over 12 pages), culminating in the opinion that the matter was not appropriate for a s.96 application and ought proceed by way of a fresh development application (Exhibit F, Tab 58).
203On 8 January 2008, Expoe exercised its right to appeal under s.96(6) EPA Act from the deemed refusal of its application by filing a Class 1 Application in the Land and Environment Court (Exhibit F, Tab 59).
204On 19 February 2008, a "without prejudice" meeting took place between representatives of Expoe and Mr Broyd, Ms Gale, Mr Anson and others for the Defendant. Officers of the Defendant considered that the application was not substantially the same and that concerns remained with respect to building separation, setbacks, height, density and view corridors. It was agreed that the parties would instruct their lawyers to confer on the legal issues in an attempt to seek a way to progress the matter (Exhibit F, Tab 62).
205On 28 February 2008, a meeting of officers of the Defendant concluded that Expoe should proceed by way of a development application relying on existing use rights, rather than a s.96 application (Exhibit F, Tab 66).
206On 18 March 2008, Expoe lodged a fresh development application relying on existing use rights (Exhibit F, Tab 69).
207The development application was considered by officers of the Defendant to be "grossly deficient" (Exhibit F, Tab 69).
208On 4 April 2008, a further development application was lodged by Expoe and Mr Randall, an officer of the Defendant, sought legal advice with respect to it from Harris Wheeler (Exhibit F, Tab 73).
209On 24 June 2008, the development application by Expoe was approved under delegated authority (Exhibit F, Tab 79).
210I do not consider that the Plaintiffs' case is advanced with respect to its causes of action by a comparison between the Defendant's consideration of the Plaintiffs' application and the Defendant's consideration of Expoe application. There are significant differences between the respective applications, not the least being the different scale involved in the Expoe application and the fact that Expoe appealed under s.96(6), although a Court determination was not ultimately required.