(2002) 124 FCR 316
Bankstown City Council v Ramahi [2015] NSWLEC 74
Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14
(2007) 228 CLR 651
Brown v Randwick City Council [2011] NSWLEC 172
(2011) 183 LGERA 382
Calleja v Botany Bay City Council [2005] NSWCA 337
(2005) 142 LGERA 104
Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd [2010] NSWLEC 1
Source
Original judgment source is linked above.
Catchwords
(2002) 124 FCR 316
Bankstown City Council v Ramahi [2015] NSWLEC 74
Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14(2007) 228 CLR 651
Brown v Randwick City Council [2011] NSWLEC 172(2011) 183 LGERA 382
Calleja v Botany Bay City Council [2005] NSWCA 337(2005) 142 LGERA 104
Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd [2010] NSWLEC 1(2010) 172 LGERA 25
Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd [2010] NSWCA 353(2010) 178 LGERA 411
Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401(2004) 135 LGERA 257
Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184(2013) 211 LGERA 412
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26(1981) 147 CLR 297
Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155(1991) 28 FCR 250
Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38(2011) 81 NSWLR 638
ICM Agriculture Pty Ltd v Commonwealth of Australia [2009] HCA 51(2010) 173 LGERA 240
Kirk v Industrial Court of New South Wales [2010] HCA 1176 LGERA 71
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53
(2013) 251 CLR 322
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Ex parte Taylor [2001] HCA 51
(2001) 207 CLR 391
Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213
(2004) 219 CLR 165
Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133
Trives v Hornsby Shire Council [2015] NSWCA 158
(2015) 89 NSWLR 268
Weal v Bathurst City Council [2000] NSWCA 88
Judgment (25 paragraphs)
[1]
-Western Regional Council [2008] NSWLEC 113
Olsson v Goulburn Mulwaree Council & Minister Administering the Crown Land Act 1989, Olsson v Minister Administering the Crown Land Act 1989 [2010] NSWLEC 169; 176 LGERA 71
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116
Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391
Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347
Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101
Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165
Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133
Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Ying v Song [2009] NSWSC 1344
Category: Principal judgment
Parties: Mosman Municipal Council (Applicant)
IPM Pty Ltd (First Respondent)
Mosman Bay Trading Pty Limited (Second Respondent)
Dean Morton (Third Respondent)
Mondan Management Pty Ltd t/as Vic Lilli & Partners (Fourth Respondent)
Representation: Counsel:
T Roberston SC with J Johnson (Applicant)
C McEwen SC with S Free (First and Second Respondents)
Submitting Appearance (Third and Fourth Respondents)
[2]
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Addisons (First and Second Respondents)
Colin Biggers & Paisley (Third and Fourth Respondents)
File Number(s): 40817 of 2014
[3]
The Council Seeks to Set Aside a Complying Development Certificate Issued to IPM
On 10 March 2014, the third respondent, Mr Dean Morton ("the certifier"), of Mondan Management Pty Ltd trading as Vic Lilli & Partners (the fourth respondent), issued complying development certificate J140110 ("CDC") to the first respondent, IPM Pty Ltd ("IPM"), for internal alterations to the existing ground floor tenancies of 718-728 Military Road, Mosman, to create two shops, one for use as a liquor store, and the other for general retailing use ("the premises").
According to the applicant, Mosman Municipal Council ("the council"), there is an irreconcilable conflict between the conditions of the CDC and the conditions of the most recent development consent for the premises ("the consent"). Condition 24(2)(b) of the CDC requires that car spaces be used solely for vehicular access and for the parking of vehicles associated with the use of the premises, whereas conditions of the consent required a total of 89 car spaces, of which 40 are to be used as shop and public carparking spaces.
These proceedings concern the interaction between the development standards and conditions of the Commercial and Industrial Alteration Code, which are contained in Pt 5 and Sch 8 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Codes SEPP"), on the one hand, and the consent, on the other.
In summary, the council submits that, on its proper construction, the Codes SEPP requires compliance with the consent conditions relating to parking but that this is impossible due to a conflict with the conditions of the CDC. The conflict should have been identified by the certifier, Mr Morton, who was bound to refuse to issue the CDC. He failed to do so because he failed to consider the consent when determining whether or not to issue the CDC. Furthermore, because the CDC cannot be implemented without breaching the consent, any activity undertaken pursuant to it ought to be restrained.
In response, the first respondent, IPM, and the second respondent, Mosman Bay Trading Pty Limited (a related company) (together, "the respondents"), argue that, as a matter of construction, there is no conflict between the two instruments.
The third and fourth respondents (the certifier and Vic Lilli & Partners) filed submitting appearances, save as to costs.
[4]
The Certifier Issues the CDC
To resolve the legal issues raised by the council's challenge, it is necessary to set out some of the factual background prior to the issuing of the CDC.
On 23 February 2012, the council granted development consent to IPM for the demolition of above ground structures, the retention of existing basement carparking, the erection of a five storey mixed use shop/multiple dwelling building comprising three shops on the ground floor and 32 dwellings on the upper floors, with associated carparking and landscaping. Consent was also granted for the use of the car spaces allocated for the retail use, as a public carpark. In total, 40 retail carparking spaces were to be devoted to the dual use. The council was to manage the public carpark.
The consent was modified on 20 March 2013. As modified, the consent relevantly contained conditions 89, 90, 109 and 116:
89. All public parking spaces (49) shall be managed by Council in accordance with other conditions of this consent (8.2011.232.2)
90. To satisfy user demand, a minimum of 89 car spaces shall be provided on site. Of these spaces, 40 shall be resident spaces, 9 shall be resident visitor spaces and shall also be utilised as public carparking spaces, and 40 shall be shop/public carparking spaces (8.2011.232.2)
…
109. Parking and manoeuvring areas shall be used solely for such purposes.
…
116. Basement levels 1, 2, 3, 4 and 5, excluding the forty (40) resident car spaces, as shown on Drawings DA09B-DA11B inclusive[,] dated September 2012 prepared by Nettleton Tribe Architects ("the carpark"), shall be controlled and managed as follows:
a. The registered proprietor of the property shall grant Council and its authorised servants and agents a licence to enter upon the carpark for the purpose of implementing the terms of this consent ('the licence").
b. Council shall be permitted to erect appropriate signage, police the use of the carpark as a free carpark and ensure the right of ingress to and egress from the carpark for all members of the public.
c. The licence:
i. shall be personal and exclusive to Council and not be capable of assignment or transfer.
ii. confer on Council the exclusive control and management of the carpark and the means of access thereto and exits there from at all times.
d. Council shall not be required by the registered proprietor of the property to pay a licence fee during the continuance of the licence. The licence shall not be terminated without the consent of Council.
e. The Council shall be permitted to employ such staff as may be reasonably necessary for the proper policing of the carpark in accordance with any resolution of Council regulating the use thereof by the public for the accommodation of vehicles.
f. Council shall not make or permit to be made, without the consent of the registered proprietor, any structural alterations or additions to the carpark excepting the erection of devices necessary for parking control.
g. The registered proprietor, at its own expense, shall mark by means of painted lines or stud pads or plates to the satisfaction of Council's Director of Environment and Planning, parking spaces in which a vehicle may stand or wait in the carpark and to keep and maintain the marking of such spaces at all times.
h. The registered proprietor shall pay or otherwise discharge all liability for Council rates, water rates, gas, electric power and light in respect of the carpark.
i. The registered proprietor shall, at all times during the term of the licence, keep effected a public risk insurance policy in the names of Council and the registered proprietor in respect of the carpark and all improvements thereon in such sum as Council may require but not less than 10 million. The registered proprietor shall produce a copy of the policy prior to the issue of an Occupation Certificate and to produce the policy, and evidence of its currency, to Council at any time Council may reasonably require.
j. The registered proprietor shall maintain the carpark, including the provision and repair of mechanical ventilation and keep clean the carpark.
k. The registered proprietor shall permit Council to, by notice exhibited in the carpark or by other such means as it considers appropriate, fix the maximum period or periods for which a vehicle may stand or wait in the carpark or any portion thereof provided that the limit on free parking in the parking area shall not be less than 3 hours during the hours of 9.00am and 5.00pm daily.
l. The registered proprietor shall use all reasonable endeavours to ensure that staff and servants of the registered proprietor comply with Council's requirements relating to the use of the carpark.
[5]
Statutory Framework Governing the CDC Under the EPAA
"Complying development" is defined in s 4(1) of the EPAA as "development for which provision is made as referred to in section 76A(5)" of the EPAA.
The term "premises" is defined to mean in s 4(1) of the EPAA:
premises means any of the following:
(a) a building of any description or any part of it and the appurtenances to it,
(b) a manufactured home, moveable dwelling and associated structure,
(c) land, whether built on or not,
(d) a tent,
(e) a swimming pool,
(f) a ship or vessel of any description (including a houseboat).
Section 76A(5) states that:
76A Development that needs consent
(5) Complying development
An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
The term "complying development certificate" is defined in s 4(1) of the EPAA to mean "a complying development certificate referred to in section 85" of the EPAA.
Thus, s 85(1) provides that:
85 What is a "complying development certificate"?
Terms of complying development certificate
(1) A complying development certificate is a certificate:
(a) that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and
(b) in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.
The process for obtaining a CDC is governed by s 85A of the EPAA. Relevantly, s 85A(1)-(9) state:
85A Process for obtaining complying development certificates
Application
(1) An applicant may, in accordance with the regulations, apply to:
(a) the council, or
(b) an accredited certifier,
for a complying development certificate.
(2) (Repealed)
Evaluation
(3) The council or accredited certifier must consider the application and determine:
(a) whether or not the proposed development is complying development, and
(b) whether or not the proposed development complies with the relevant development standards, and
(c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.
(4) A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.
(5) A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4).
Determination
(6) The council or an accredited certifier may determine an application:
(a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or
(b) by refusing to issue a complying development certificate.
(7) The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate.
(8) The determination of an application by the council or accredited certifier must be completed within the period prescribed by the regulations (or such longer period as may be agreed to by the applicant) after lodgment of the application
(9) In determining the application, the council or the accredited certifier must impose a condition that is required to be imposed under Division 6 in relation to the complying development.
[6]
The Codes SEPP
Clause 1.17 of the Codes SEPP sets out when development will constitute complying development:
1.17 What development is complying development?
(1) Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy.
(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
The general requirements for complying development are set out in cl 1.18 and relevantly include that:
(3) A complying development certificate for complying development under this Policy is subject to the conditions specified in this Policy in respect of that development.
Division 1 of the Commercial and Industrial Alterations Code located in Pt 5 of the Codes SEPP concerns "Specified development and development standards under this code". Subdivision 1 deals with internal building alterations and specifies, in cl 5.1, that:
5.1 Specified complying development
An internal alteration to a building that is used, or is the subject of a development consent for use, for any purpose (other than for the purpose of residential accommodation, heavy industry, sex services premises or restricted premises) is development specified for this code.
Clause 5.2 specifies the standards for developments. In relation to carparking, cl 5.2(1)(i) provides that:
5.2 Development standards
(1) The standards specified for that development are as follows:
…
(i) carparking must be provided:
(i) in accordance with any existing condition relating to carparking that applies to the land, or
(ii) if there is no existing condition relating to carparking - in accordance with any relevant requirements contained in an environmental planning instrument or development control plan applying to the land, unless a contribution has been made in relation to carparking in compliance with a contributions plan under Division 6 of Part 4 of the Act.
The development standards concerning the first use of premises is set out in cl 5.6 of Subdiv 3. It relevantly states that:
5.6 Development standards
(1) The standards specified for that development are that the development:
(a) must not result in an increase to the gross floor area of the building, and
(b) must not cause the contravention of any existing condition of the most recent development consent (other than a complying development certificate) that applies to the premises relating to hours of operation, noise, carparking, loading, vehicular movement, traffic generation, waste management or landscaping, and
(c) if there is no existing condition relating to hours of operation in that development consent, must be operated only during the following periods:
(i) if the new use is as bulky goods premises or other commercial premises - 7.00 am to 10.00 pm Monday to Saturday and 7.00 am to 8.00 pm on a Sunday or a public holiday,
(ii) for a new use (other than a use referred to in subparagraph (i)) carried out on premises that adjoin or are opposite a residential lot - 7.00 am to 7.00 pm Monday to Saturday and 9.00 am to 6.00 pm on a Sunday and not at any time on a public holiday,
(iii) in any other case not referred to in subparagraph (i) or (ii) - 7.00 am to 7.00 pm Monday to Saturday and 9.00 am to 6.00 pm on a Sunday or public holiday.
[7]
Issues for Determination
The following issues for determination were agreed to by the parties:
1. In forming his opinion under s.85A(3) of the Act that the application was for complying development because it met the standard specified for that development in cl.5.2(1)(i)(i) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the SEPP"), did the certifier consider the existing conditions relating to carparking that applied to the land?
2. In forming his opinion under s.85A(3) of the Act that the application was for complying development because it met the standard specified for that development in cl.5.6(1)(b) of the SEPP, did the certifier consider the conditions for the most recent development consent ("the Consent") that applied to the premises relating to carparking?
3. Is it the consequence of a negative answer to (1) or (2) above that there was a jurisdictional error in making the decision?
4. Is there an irreconcilable conflict between the mandatory parking condition 24 in Schedule 8 to the SEPP and the parking conditions of the Consent?
5. If so, was the certifier bound to refrain from issuing the complying development certificate ("the Certificate")?
6. Did the Certificate relate to the premises as a whole including the basement carparking levels, or only to the ground level retail premises?
7. Is there a threatened or apprehended breach of s.84A(1)(b)(ii) by the Respondents proposing to carry out complying development if it is in breach of the development standards 5.2(1)(i)(i) and 5.6(1)(b) of the SEPP?
8. Was the notice relied upon by the First and Second Respondents ("the Notice") published in accordance with clause 137(1) of the EP&A Regulation 2000, given that it omitted to state the times which were the ordinary office hours of the Council or the location of the Council offices?
9. If so, given that the summons was filed more than 3 months after the Notice, does section 101 of the EP&A Act prevent the Applicant from questioning the validity of the Certificate for jurisdictional error, or is s.101 ineffective in preventing the Land and Environment Court from reviewing the certifier's decision for jurisdictional error?
10. If the Notice was not published in accordance with the Regulation, should the Court exercise its discretion to extend time for commencing proceedings under Rule 59.10?
In substance, issues 1-7 raise two related grounds of review. First, whether or not the certifier was required, and therefore failed, to have regard to the most recent development consent (the modified consent) for the premises. Second, whether the certifier fell into jurisdictional error by determining that the proposed development complied with the relevant development standards, one of which was that the development must not cause the contravention of any existing condition of the consent that applied to the premises relating to, relevantly in this instance, carparking (cl 5.6(1)(b) of the Codes SEPP).
[8]
Are the Proceedings Time Barred?
The respondents contend that the proceedings are time barred because they were not commenced within three months of public notice being given in accordance with s 101 of the EPAA. Hence, the council is precluded from challenging the validity of the CDC.
In the alternative, the respondents argue that the proceedings are time barred by reason of r 59 of the Uniform Civil Procedure Rules 2005 ("UCPR"), and that no extension of time ought to be granted.
It was not in dispute that the three month time period expired on 10 July 2014, whereas the proceedings were commenced on 30 September 2014, approximately two months later.
Section 101 of the EPAA provides as follows:
101 Validity of development consents and complying development certificates
If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
Clause 137(1) of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations") relevantly provides:
137 What are the public notification procedures for the purposes of section 101 of the Act
(1) The determination of an application for a complying development certificate is publicly notified for the purposes of section 101 of the Act:
(a) if public notice in a local newspaper is given by the council or an accredited certifier, and
(b) if the notice describes the land and the development the subject of the complying development certificate, and
(c) if the notice contains a statement that the determination of the application for a complying development certificate is available for public inspection, free of charge, during ordinary office hours at the council's offices.
Part 59 of the UCPR applies to proceedings commenced in Class 4 of the Court's jurisdiction (r 59.1(b)). Specifically, r 59.10 states that:
59.10 Time for commencing proceedings
(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.
(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).
(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:
(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.
(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
[9]
Was the Notice Given in Accordance With the Regulations?
The first submission contains, at its core, a question as to the proper construction of cl 137 of the EPA Regulations. As was pithily summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116, a case concerning the validity of subordinate legislation, the modern approach to statutory interpretation, including delegated legislation, is as follows (at [44]-[46]):
44. Principles governing the construction of delegated legislation, such as the regulation in the present case, are those applicable to Acts of Parliament generally: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398; King Gee Clothing Company Pty Ltd v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 195.
45. The relevant principles have been stated on a number of recent occasions by the High Court. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, the plurality emphasised (at [47]) that construction must begin with a consideration of the text itself and while the language employed is the surest guide to legislative intention, the meaning of the text may require consideration of the context which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy: See also Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at [41]; Commissioner of Taxation v Consolidated Media Holdings Ltd (ACN 009 071 167) [2012] HCA 55; (2012) 87 ALJR 98 at [39]; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23].
46. Determination of the purpose of the statute or a particular provision may be based not only on an express statement of purpose in the statute itself but also by inference from its text and structure and where appropriate by reference to extrinsic material. However, the process does not involve a search for what those who presented and passed the legislation had in mind: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Certain Lloyd's Underwriters v Cross supra at [23]-[26].
In Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 81 NSWLR 638, Basten JA opined as to the importance of provisions such as cl 137 in the planning scheme governed by the EPAA and the EPA Regulations. His Honour said (at [28]):
28. The right to challenge the validity of a development consent is an empty promise if the existence of the consent is unknown. The effect of the right is not triggered by the actual knowledge of the applicant of the existence of the consent; rather, it is triggered by the giving of public notice, which is deemed sufficient to allow interested parties to acquire the relevant information. The content of appropriate public notice has not been left in the hands of the local council, even though it should be treated as a knowledgeable and responsible authority. Rather, the legislature, through delegated legislation, has prescribed that which is required for giving effective notice. No authority is conferred on the courts to determine that a non-complying notice will be effective in some cases, but perhaps not in others. Nor does the EP&A Act or the Regulation provide any criterion by which such an exercise could be undertaken. The only rational way to give effect to the expressed purpose of the EP&A Act, is to give effect to a notice given in accordance with the Regulation, but not one which fails to comply. This approach will have no consequence for a developer relying upon a valid consent, other than the incidental effect of permitting late challenges. Further, whilst the developer is not the party responsible for giving notice, in protecting its own interest, it might well consider for itself the validity of any notice given and invite the council to publish a further notice if it or its financier is concerned about that issue. There is no time limit on the giving of a valid notice.
[10]
Section 101 of the EPAA
Strictly speaking, it follows that the question of whether or not the time limit in s 101 should be upheld as effective to preclude review for jurisdictional error in proceedings commenced outside the three month time limit, or whether or not the constitutional principles in Kirk require a contrary conclusion, need not be determined (s 78B notices were issued and the responses from the various Attorneys-General declining intervention were tendered before the Court). In this regard, the long-standing principle that courts should not decide constitutional questions unless necessary for the decision in the case, should be observed (Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [252]-[253] per Gummow and Hayne JJ and the earlier authorities cited thereat, ICM Agriculture Pty Ltd v Commonwealth of Australia [2009] HCA 51; (2009) 240 CLR 140 at [141] per Hayne, Kiefel and Bell JJ and Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [148] per Crennan, Bell and Gageler JJ).
But having said this, were I required to determine the issue, I would have followed, as a matter of comity, the decision of Preston J in Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382, where his Honour held (at [37]-[39]):
37. Secondly, even if proper public notice had been given, it would not protect the development consent from jurisdictional error. Before the High Court's decision in Kirk , a privative clause such as s 101 did not protect the development consent from judicial review for certain types of jurisdictional error. These were the three errors identified in R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598, the decision not being a bona fide attempt to exercise power, not relating to the subject matter of the legislation and not being reasonably capable of reference to the power given to the decision-maker, as well as a breach of a requirement "of such significance in the legislative scheme that it constitutes a limitation or requirement that is variously expressed in the authorities as 'essential', 'indispensable', 'imperative' or 'inviolable'": Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [76].
38. In this case, the ground of challenge that the Council had no power to make the November determination to grant consent to the application, having already made the September determination to refuse consent to the application, is an error of the third kind in Hickman. The ground of challenge of failure to provide notice may fall into the inviolable restraint category of error.
39. After the High Court's decision in Kirk , the full range of jurisdictional error remains subject to judicial review, notwithstanding a privative clause. A privative clause in State legislation cannot validly compromise the capacity of a State Supreme Court to exercise its supervisory jurisdiction (which is constitutionally entrenched) for review for jurisdictional error. The supervisory jurisdiction of the State of New South Wales' Supreme Court is divided between the Supreme Court and the Land and Environment Court, depending on the statute under which powers and functions have been exercised and are subject to review. A privative clause, such as s 101, may remain valid but it will be read down so as to preserve the supervisory jurisdiction to review for jurisdictional error.
[11]
Rule 59.10 of the UCPR
But what of the time limit contained in r 59.10 of the UCPR?
Rule 59.10 also imposes a three month limitation period from the date of the relevant decision within which to commence judicial review proceedings. But, the provision does not apply to proceedings in which there is a "statutory limitation period", such as s 101 of the EPAA (r 59.10(4)). However, the application of r 59.10(4) is predicated on the "statutory limitation period" being operative, which in this instance, for the reasons given above, s 101 of the EPAA is not.
In other words, whereas the rule contained in r 59.10(4) of the UCPR excluding the operation of r 59 does not apply, the time limitation contained in r 59.10(1) does (Bankstown City Council v Ramahi [2015] NSWLEC 74 at [73]).
The Court may, however, extend the time for commencing judicial review proceedings under r 59.10(2) of the UCPR. The factors to be considered in determining whether or not to extend time include the four factors set out in r 59.10(3), together with the reasons for the delay in commencing proceedings, the length of the delay, and whether the applicant seeking the extension of time has a reasonably arguable case (Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9], Dyason v Butterworth [2015] NSWCA 52 at [65] and Ramahi at [74]).
[12]
The Council's Interest in Challenging the Decision
In Ramahi Preston J stated that (at [75]-[76]):
75. The Council has an interest in challenging the decisions to issue the complying development certificates. The Council is the local government authority with responsibility for upholding and enforcing the EPA Act and environmental planning instruments made under it, including ensuring that development is carried out in accordance with the EPA Act. If an environmental planning instrument provides that development is complying development only if it complies with predetermined development standards, and may only be carried out in accordance with a complying development certificate, the Council has a responsibility to ensure that any development within its local government area complies with the applicable development standards and is carried out in accordance with a valid complying development certificate.
76. The Council has an interest in challenging decisions of accredited certifiers who issue complying development certificates to developments that are not in fact complying developments.
The council argued that the importance of this interest was highlighted here because the very development that the CDC purported to authorise was first proposed in a development application refused by the council, and refused again by the Court in Class 1 proceedings (IPM Pty Ltd v Mosman Municipal Council [2014] NSWLEC 1141). The Court dismissed the appeal from the council's refusal because of the high volume of traffic generated by the proposal and the resultant noise impacts, especially truck noise, neither of which were reasonable (at [37], [42], [58] and [95] per Tuor C). Moreover, the council had an interest in ensuring that it would not lose the benefit of public carparking which it asserted was provided for in the consent.
Although the respondents submitted that there was no particular public interest in the challenge to the CDC by the council, the reasons given by the council above are sufficiently specific to engage this factor.
[13]
Possible Prejudice Caused by the Delay
The respondents accept that they have not carried out work in reliance on the CDC, but submitted that it was a "form of prejudice" to suffer a delayed challenge to the CDC on the grounds of finality.
The council noted in response that, first, the respondents were aware at all times that the council contested the validity of the CDC; and second, that the proceedings had already been adjourned for a significant length of time to enable negotiations to take place, negotiations that were ultimately unsuccessful.
In my opinion, the prejudice, if any, to the respondents caused by the delay in commencing proceedings to challenge the CDC was minimal.
[14]
Reasons for the Delay
It was accepted by the parties that the delay was caused by the time period being overlooked by reason of the Class 1 appeal (referred to above). Subsequently, counsel was initially briefed to advise and settle a summons if appropriate, but new counsel had to be briefed when the original counsel was unable to complete the work in a timely manner. In other words, the reason for the delay in commencing proceedings was that of oversight and not deliberate inaction on the part of the council.
Furthermore, the council was cognisant of the fact that if the Court had granted a development consent for the proposal pursuant to the Class 1 proceedings, then the respondents would not have had to rely on the CDC, and any proceedings commenced challenging its validity would have been otiose, with concomitant time and money being thrown away by the parties, and by the Court.
In these circumstances, the council's actions, while somewhat wanting, were not wholly unreasonable.
[15]
Length of the Delay
As for the length of the delay, contrary to the submissions of the respondents, I do not consider a delay of just over two months to be "reasonably substantial". I note that in Ramahi the delay was approximately 9 months for the original CDC and 6.5 months for the amended CDC but the Court nevertheless permitted an extension of time within which to commence proceedings.
[16]
The Public Interest
As noted above, it is in the public interest that the council be permitted to bring these proceedings in order to challenge the validity of the CDC. I am not, as I explained above, persuaded that the public interest in certainty and finality of a decision to issue a CDC outweighs, in the circumstances of this case, the public interest in upholding and enforcing the statutory scheme for issuing CDCs.
[17]
The Strength of the Council's Case
As can be seen from the discussion below, the council's case may be described as fairly arguable.
[18]
Time Ought to be Extended
I consider that the council has demonstrated a case for extending the time for commencing proceedings to challenge the validity of the CDC issued by the certifier on 10 March 2014. The date is therefore extended to the date that the council filed its summons commencing the proceedings on 30 September 2014.
[19]
Did the Certifier Fail to Have Regard to the Consent?
The council asserts that the certifier failed to have regard to the consent prior to determining to issue the CDC. The council bears the onus of proving on the balance of probabilities that the certifier did not turn his mind to the terms of the consent, or that he failed to form the requisite mental state of satisfaction for the purposes of s 85A of the EPAA (Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd [2010] NSWLEC 1; (2010) 172 LGERA 25 at [58] and [66]-[67] per Preston J; affirmed by Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd [2010] NSWCA 353; (2010) 178 LGERA 411).
The argument is founded upon the obligation imposed on the certifier contained in s 85A(3)(b) of the EPAA to consider whether the proposed development complied with the relevant development standards set out in cl 5.6 of the Codes SEPP. These standards include the standard contained in cl 5.6(1), namely, that the development must not cause the contravention of any existing condition of the consent that applies to the premises and relates to the matters set out therein, including carparking.
As can be seen above, the certifier appeared to state in the CDC that the determination had been made only on the documentation contained in the annexure to the certificate, such documentation not expressly including the consent.
Therefore, the council argued, the consent was not considered in the determination process, and the certifier could not have been satisfied that the development as proposed to be certified did not cause the contravention of any conditions of the consent, which, according to the council, occurred in relation to carparking.
I agree with the council that consideration of the consent by the certifier was an essential part of the determination process to issue the CDC. Put another way, it was a mandatory relevant matter that the certifier was required to take into account.
The physical alterations to the ground floor retail shops involved the construction of a tenancy wall and toilets which was specified development under Subdiv 1 of Pt 5 of the Codes SEPP. Consideration of the consent was essential in order to determine whether the complying development complied with the development standard in cl 5.1. Any carparking associated with the development had to be provided in accordance with any existing development condition relating to carparking that applied to the land (cl 5.2(1)(i)(i)). In addition, it is arguable (the question turning, in part, on the construction of the term "premises" in cl 5.6(1)(b) for the purposes of cl 5.5(1) of the Codes SEPP) that the first use of the major tenancy as a liquor store and the minor tenancy for general retailing required consideration of the consent to determine whether or not there was compliance with the development standard proscribed in cl 5.6(1)(b) in respect of carparking.
[20]
Is There an Irreconcilable Difference Between the CDC and the Consent Concerning Carparking Such That the Certifier Fell Into Jurisdictional Error in Issuing the CDC?
The council contends that it was not open for the certifier to reach an opinion that the carparking conditions in the consent were not contravened by the development certified as complying development in the CDC.
The council's argument is as follows. First, pursuant to s 84A(1)(b)(ii) of the EPAA, the Codes SEPP preserves the operation of the consent with respect to carparking. It is not, the council submits, possible to comply with both the Codes SEPP and the consent because:
1. condition 24 of Sch 8 of the Codes SEPP (which forms part of the CDC by reason of the application of cl 5.25 of the Codes SEPP) requires the sole use of carparking spaces for the parking of vehicles associated with the retail use of the premises; whereas,
2. the conditions of the consent require the use of carparking spaces for the dual use of carparking for vehicles associated with the retail use of the premises as well as carparking for vehicles associated with the general use of the premises by any member of the public.
Second, the development must be complying development before it can be carried out, and the development cannot be carried out in accordance with the specified predetermined development standards for internal alterations or for first use (see cl 5.6(1)(b) of the Codes SEPP).
Hence, the council submitted, there was a jurisdictional defect in the formation of the opinion concerning whether or not the development was complying development, a necessary precondition to the determination to issue the CDC. That is to say, it was not reasonably open to the certifier to determine that the development could comply with the relevant development standards because the duel use of the car spaces required by the consent was precluded if they were to be devoted solely for retail purposes. The error, being one of the construction of either the Sch 8 conditions, or those forming part of the consent, or both, is one that goes to the certifier's jurisdiction to issue the CDC.
In response, the respondents argued that, properly construed, the effect of condition 24 of Sch 8 of the Codes SEPP meant that the carrying out of the complying development would not involve a breach of the consent. I agree.
[21]
The CDC Was Validly Issued
I therefore find that, properly construed, condition 24(2) of the CDC does not cause the contravention of any existing condition of the most recent development consent that applies to the premises relating to carparking (cl 5.6(1)(b) of the Codes SEPP). The intended operation of the consent is preserved, enabling the issuing of the CDC with the obligatory inclusion of the Sch 8 conditions, including condition 24. So interpreted, there is no conflict between the CDC and the consent and the certifier was obliged to issue the CDC (s 85A(7) of the EPAA).
The respondents are therefore correct in their submission that even if the certifier failed to consider the specific conditions in the consent relating to carparking, this did not matter because he was prohibited from refusing the certificate in the absence of any conflict between the two instruments. In any event, in my view, the preferable conclusion is that the certifier did not expressly reference conditions 89, 90, 109 and 116 of the consent because he did not perceive there to be a conflict between the consent and the conditions of the CDC, especially those contained in Sch 8 of the Codes SEPP.
[22]
Relief Sought
Because I have determined that the CDC was validly issued, there is no need for me to consider the council's alternative argument that the carrying out of the development in accordance with the CDC can be restrained by injunction without the need for any order invalidating the certificate.
[23]
Costs
Having failed in its challenge to the validity of the CDC, and these proceedings having been instituted in Class 4 of the Court's jurisdiction, costs follow the event. It is therefore appropriate, in the absence of any reason to order otherwise, that the council pay the first and second respondents' costs.
One such reason could be, however, that the third respondent (the certifier) and the fourth respondent (Vic Lilli & Partners) may also wish to seek a costs order in their favour. Accordingly, if any party contemplates a different costs order being made they should be given the opportunity, in the absence of any argument on the question during the hearing, of making an appropriate application in this regard.
[24]
Orders
In conformity with the reasons given above, the formal orders of the Court are therefore as follows:
1. the time to commence these proceedings is extended to the date of the filing of the summons on 30 September 2015;
2. the amended summons is dismissed;
3. the applicant is to pay the first and second respondents' costs, unless within 14 days any party seeks, by notice of motion, an alternative costs order; and
4. the exhibits are to be returned.
[25]
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: 24 March 2016
For the reasons that follow, I find that, as a matter of construction, there was no irreconcilable conflict between the consent and the CDC and that the CDC was validly issued by the certifier, and therefore the amended summons ought to be dismissed.
On 6 March 2014 IPM sought a CDC from the certifier, describing the development for which the certificate was sought in the following terms:
Construction of tenancy wall, WC and first use of major tenancy as a liquor store and minor tenancy for general retailing.
The CDC was issued on 10 March 2014. It described the development as:
… construction of a tenancy wall, WC and first use of major tenancy as a liquor store and minor tenancy for general retailing approved pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
The determination was stated by the certifier to have been made "on the basis of the documentation contained in the annexures to this certificate". Annexure 1 contained "Plans and Specification that form part of Complying Development Certificate". Annexure 2 was a list of the "Supporting Documentation", which comprised:
Annexure 2 - Supporting Documentation
Complying Development Certificate Application 10 pages
Exempt and Complying Development Conditions 6 pages
Other Supporting Documentation
Review of Existing Fire Engineering Report - Clause 130
Vic Lilli & Partners
Dated 6 March 2014 4 pages
Pre-Issue Inspection Report 1 page
Critically, the consent was not referred to.
The determination included prescribed conditions from the Environmental Planning and Assessment Act 1979 ("EPAA") and certain prescribed conditions contained in Sch 8 of the Commercial and Industrial Alterations Code contained in the Codes SEPP. In particular, condition 24 stated that (emphasis added):
24. Unobstructed driveways and parking areas
(1) All driveways and parking areas must be unobstructed at all times.
(2) Driveways and car spaces:
(a) must not be used for the manufacture, storage or display of goods, materials or any other equipment, and
(b) must be used solely for vehicular access and for the parking of vehicles associated with the use of the premises.
The determination to issue the CDC was expressed to have been made under the provisions of the Codes SEPP and was subject to the prescribed conditions referred to immediately above.
On 10 April 2014 a notice was published in the Mosman Daily ("the notice") which relevantly stated:
It is advised that the determination of the application for the Complying Development Certificate is available for public inspection, free of charge, during ordinary office hours at the Mosman Municipal Council offices.
The notice was silent as to the times of the "ordinary office hours" or the location of the council's offices.
Clause 5.25 mandates that "a complying development certificate for development specified under this code must be issued subject to the conditions specified in Schedule 8".
As explained above, Sch 8 of the Codes SEPP deals with "Conditions applying to complying development certificates under the Commercial and Industrial Alterations Code and the Commercial and Industrial (New Building and Additions) Code".
Clause 1.5 of the Codes SEPP defines "complying development code" to mean, amongst other things, "(e) the Commercial and Industrial Alterations Code".
Clause 24 of Sch 8 is as follows:
24 Unobstructed driveways and parking areas
(1) All driveways and parking areas must be unobstructed at all times.
(2) Driveways and car spaces:
(a) must not be used for the manufacture, storage or display of goods, materials or any other equipment, and
(b) must be used solely for vehicular access and for the parking of vehicles associated with the use of the premises.
It is identical to condition 24 of the CDC.
Issues 8-10, however, are threshold issues concerning the ability of the Court to hear and determine the proceedings. They must, therefore, be resolved first.
In response to the assertion that review of the proceedings was time barred in this Court, the council's submissions were essentially three-fold:
1. first, the notice that was required to be given of the determination of the CDC was not a notice in accordance with cl 137 of the EPA Regulations because it neither specified the "ordinary office hours" of the council nor the location of the "offices" of the council. Accordingly, s 101 could not apply and along with it, the time bar;
2. second, applying the decision in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 (at [55]), s 101 cannot, in any event, deprive the Court of jurisdiction to review the decision to grant the CDC for jurisdictional error; and
3. third, because the council also seeks an order restraining the respondents from acting on the CDC on the basis that it is impossible to give effect to it without being in breach of an existing condition of the consent relating to carparking, an order that assumes the validity of the CDC does not involve judicial review of the decision to grant the CDC, neither s 101 of the EPAA nor r 59.10 of the UCPR apply, and no extension of time is necessary.
The respondents argued that cl 137(1)(c) of the EPA Regulations was clear in its terms and that it contained no requirement mandating that the particular hours or address of the council be stipulated in the notice. All that cl 137(1)(c) demands, is that the notice contain the statement referred to therein. It does not, by way of comparison to cl 137(1)(b), require any further descriptive details. To insert the words urged upon the Court by the council into the clear and unambiguous text of the clause is not warranted having regard to its text and context. If the legislature had sought to prescribe this level of detail in the notice, it could be assumed that it would have expressly done so.
Furthermore, they submitted that in respect of the mischief this clause of the EPA Regulations sought to remedy, namely, to ensure that persons who may wish to challenge the validity of a CDC are made aware of where the determination of the application for such a certificate can be inspected (thereby facilitating one of the broader objectives of the State planning regime, viz, that of the promotion of public participation and involvement in environmental planning and assessment: see s 5(c) of the EPAA), the omission of these details in this digital age would not amount to a serious impediment to such inspection process, the information being easily obtainable.
In short, on neither a textual, nor contextual, interpretation of the clause was the insertion of the further information necessary. Silence as to the council's address would not wholly subvert the fundamental intention of the notice, that is, to alert the public that the determination of the application for the CDC was available for inspection. The location of the determination was clearly stated and the address of that location was readily ascertainable. Silence as to the precise times of the office hours of the council, a concept that was well understood, was similarly not fatal.
The respondents' submissions are, it might be acknowledged, compelling having regard to, in particular, the plain text of cl 137(1) of the EPA Regulations.
However, to accept their contentions would be to ignore the findings and remarks of Basten JA in Hoxton Park in relation to an equivalent notice obligation in respect of development consents in cl 124 of the EPA Regulations (with whom Giles and McFarlan JJA agreed at [1] and [59] respectively). Although only obiter dicta, his Honour's observations have considerable persuasive force, given the identically worded legislative subject-matter of that decision. A careful consideration of the decision in Hoxton Park is therefore demanded.
Relevantly for present purposes, Hoxton Park concerned a challenge to the validity of a council's consent to a school development on the basis that the council had failed to consider the environmental impacts of an essential element of the proposed development, the construction of a bridge. An issue raised in the proceedings was whether the challenge was time barred under s 101 of the EPAA precluding any relief. It was accepted, however, that time did not commence if the public notice of the grant of the consent was not given in accordance with the regulations.
Clause 124(1) of the EPA Regulations provided that:
124 What are the public notification procedures for the purposes of section 101 of the Act?
(1) The granting of a development consent is publicly notified for the purposes of section 101 of the Act if:
(a) public notice in a local newspaper is given:
(i) by the consent authority, or
(ii) if the consent authority is not the council, by the consent authority or the council, and
(b) the notice describes the land and the development the subject of the development consent, and
(c) the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours:
(i) at the consent authority's principal office, or
(ii) if the consent authority is not the council, at the consent authority's office or the council's principal office.
As is evident, cl 124(1)(b) and, importantly, (c), are in identical terms to cl 137(1)(b) and, critically, (c) of the EPA Regulations.
In respect of the requirements of cl 124(1)(c), Basten JA opined as follows (at [12]-[13]):
12. Paragraph (c) requires that the notice contain "a statement" to the prescribed effect. The paragraph is uncertain in a number of respects. First, the requirement is for a statement having four generic elements. The first two elements, namely availability for public inspection and availability for such inspection free of charge, must presumably be included in those terms. The second two elements identify the period and place of inspection. It is unclear whether the statement must use the actual language of (c), or whether it must identify the office hours and the location of the consent authority's principal office. In respect of location, its seems unlikely that the content of paragraph (c) was to be copied verbatim into the statement and thus into the notice. Some part of the notice must identify the consent authority, which may not be the publisher of the notice. The purpose of the Regulation would also be ill-served if the location of the principal office of the consent authority or the Council, or both, were not to be given in the notice. The better view may be that the location, that is the address at which inspection may take place, is to be identified in the statement. It is not necessary to form a concluded view in that respect, because the absence of such an element in the statement did not form part of the challenge in the present proceedings.
13. Of greater importance is the question whether it is sufficient that the statement identify the period of inspection as "during ordinary office hours", or whether those hours should be stated. If the hours are not identified, the reader will be required to make further inquiries. The fact that the statement does not need to include a telephone number or website by means of which such inquiries might be pursued, suggests that a purposive approach would require the statement to include identification of the ordinary office hours. A contrary argument may be that the concept of "ordinary office hours" is well-understood and does not require express identification. Again, it is not necessary to resolve this question, although it comes close to the heart of the present challenge.
In Hoxton Park the notice had omitted the words "during ordinary office hours", either by themselves or with a specification as to the relevant hours (at [17]). The Court unanimously determined that the conclusion that the notice did not comply with cl 124(1)(c) of the EPA Regulations was "inescapable" (at [20]) and, that as a consequence, it was not given in accordance with the Regulations, and therefore, did not trigger the commencement of the limitation period in s 101 of the EPAA.
It must be acknowledged that the facts of Hoxton Park are more extreme than those in the present case insofar as there was no statement whatsoever in that case of the ability of an individual to examine the determination during the "ordinary office hours" of the consent authority. In the present care, by contrast, there was at least a statement to this effect, but with no address provided for the council and no indication of what the "ordinary office hours" of the council actually were.
The weight to be accorded to obiter dicta will vary depending on the circumstances in which the dicta was pronounced. Considered dicta of appellate courts, although strictly not binding on lower courts, must nevertheless be afforded "great weight and should be departed from only with the greatest of caution" (Ying v Song [2009] NSWSC 1344 per Ward J at [19]. See the extensive authorities cited by her Honour at [20]).
In this challenge, I am disinclined to depart from the dicta of Basten JA for the following reasons:
1. first, it was said by a member of an appellate court to whom any appeal from this decision will directly lie;
2. second, it was said in the context of a provision (cl 124) that is relevantly identical in wording and effect to cl 137(1);
3. third, it was said in the context of (identical to the present application) determining whether the limitation period in s 101 of the EPAA was enlivened;
4. fourth, the dicta was unanimously supported by both Giles and McFarlan JJA; and
5. fifth, both Basten and McFarlan JJA continue to sit on the New South Wales Court of Appeal.
I therefore find that public notice of the determination of the CDC was not given in accordance with the EPA Regulations because it failed to specify the address of the council or give some other identifying feature to enable, without recourse to an independent enquiry, its location, and/or it failed to indicate what the "ordinary office hours" of the council were.
Accordingly, the notice was not "given in accordance with the regulations", and therefore, s 101 of the EPAA, including the time limitation contained in it, has not been enlivened (Hoxton Park at [29]).
Against this decision is the obiter dicta by Basten JA in Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268 (with whom McFarlan and Meagher JJA agreed: at [63] and [64] respectively), suggesting that the impact of Kirk on s 101 of the EPAA remained an open and "large question" (at [49]).
At issue in that case was whether the characterisation of development as "complying development" was a jurisdictional fact, which the Court of Appeal held it was not.
With respect to whether "there can be no legislation affecting the availability of judicial review in the State Supreme Courts" (a position that Kirk expressly eschewed: at [100]), for example, s 101 of the EPAA, Basten JA noted the following (at [46]-[50], footnotes omitted):
46. The expansion of Kirk beyond its sphere of operation must be undertaken with caution. It was concerned with review by this Court of a decision of a superior court of record, albeit one with limited jurisdiction, namely the Industrial Court. It was not, in terms, concerned with decisions of non-judicial bodies. Further, it was concerned with a strong form of privative clause, not a provision imposing a limitation period on otherwise available relief. Both these matters raise difficult questions which should not be determined unless they squarely arise. For example, s 101 of the EP&A Act does not directly affect the jurisdiction of this Court to review an administrative decision. It imposes a limit on review by the Land and Environment Court, although the reason for that lies in other statutory provisions which confer exclusive jurisdiction on the Land and Environment Court with respect to the supervisory jurisdiction involving a planning or environmental law, which includes the EP&A Act.
47. The argument assumed that the vesting of exclusive jurisdiction in the Land and Environment Court is effective, but that the imposition of a time limit on the exercise of that jurisdiction is not.
48. With respect to the second aspect, the effect of a limitation period is simply not discussed in Kirk. It was, however, discussed in a case dealing with the scope of possible regulation of the jurisdiction of the High Court, pursuant to s 73 of the Constitution, of a limitation period on review of administrative decisions under the Migration Act 1958 (Cth). That decision, Bodruddaza v Minister for Immigration and Multicultural Affairs held that a similar (12 week) limitation period (imposed by s 486A of the Migration Act) was not effective to diminish the power of the Court to grant remedies under s 75(v) of the Constitution. However, that reasoning with respect to the constitutional limits of the Commonwealth Parliament does not necessarily lead to the same conclusion with respect to the limits imposed on a State legislature. The question in that regard, as identified in Kirk, is whether such a limitation would remove "a defining characteristic" of the Supreme Court of a State, so as to contravene the requirement of s 73 of the Constitution that such a body continue to exist.
49. This is a large question. As Bodruddaza explained, there can be significant practical difficulties with limitation periods expressed in absolute terms which deny any discretion to a Court to extend time in circumstances where the justice of the case so demands. On the other hand, decisions under the EP&A Act are quite different in their nature from decisions under the Migration Act and operate in a different context, involving quite different elements of public interest.
50. Given that the applicant's submissions should be upheld on a different basis, it is not necessary to determine whether this particular submission should be accepted. Indeed, in significant respects, the issues identified above were not addressed.
Earlier his Honour had opined on why Kirk might not bear upon the validity of s 101 of the EPAA (at [41]):
41. Section 101 does not purport to prevent judicial review of development consents or complying development certificates; rather, it imposes a time limit on such challenges. If the time constraint is effective, it will limit the "inconvenience" resulting from the availability of review in the sense of uncertainty with respect to the valid operation of a relevant consent or certificate, pending the expiration of three months from the date of public notification.
Brown did not address the decision in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651, or the constitutionally significant distinction between a clause that expressly precludes review for jurisdictional error and a clause that merely imposes a time limit on any review. It is at least arguable that whereas the former is constitutionally impermissible, the latter is not, especially where the time limit is a reasonable one.
It is at least arguable that the three months mandated by s 101 of the EPAA is a reasonable limitation period, particularly given the need for certainty on the part of those who have acted in reliance on a purportedly valid development consent, or, in this instance, a CDC.
Nevertheless, I would, if I had to, be inclined to follow Brown for reasons of comity given the very open nature of the issue. I am not presently of the opinion, as I would otherwise be required to be, that the decision in Brown is plainly wrong (Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 at [278]-[283] and Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [90]). Furthermore, the reasoning in Brown has been subsequently applied in this Court (see Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184; (2013) 211 LGERA 412 at [74] per Pain J, although it must be readily acknowledged that the decision pre-dates Trives).
Accordingly, even if I am wrong, and the impugned notice was made in accordance with the EPA Regulations, s 101 of the EPAA would not deny the council's challenge to the validity of the CDC.
The respondents did not contest the compulsory nature of the certifier's consideration of the consent and its conditions. As they, correctly in my view, stated in their written submissions, central to the task of the provision of the CDC, which effectively states that the development complies with the development standards applicable to the development, "was a comparison between the development, proposed in the application for the CDC and the conditions of the most recent development consent".
There is, therefore, some force in the respondents' further submission that the Court would not lightly infer that, given the wholly unique importance of the consent to the deliberative task of the certifier, it had been overlooked by him. It is a conclusion that the Court would come to only after "anxious" deliberation (Hale v Parramatta City Council (1982) 47 LGRA 319 at 345 per Moffit P; cited with approval in Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373 per Stein JA; Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at 202 per Giles JA and Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 at [37] per McClellan J).
The respondents submitted that the more reasonable reading of the absence of any reference to the consent in the list of documentation contained in the annexures was, especially in light of the nature of the exercise, that the certifier was not purporting to exhaustively state every document that he had regard to in undertaking the process. The CDC was not a statement of reasons and the reference to the determination having been "made on the basis of the documentation contained in the annexures" should not be read strictly as a definitive list of what documents the certifier considered during the determination process. The respondents drew comfort from cl 134 of the EPA Regulations which prescribed a list of the matters a CDC was required to contain, which did not include a list of the documents considered by the certifier in issuing the CDC.
To rebut the inference posited by the council based on the absence of any reference in Annexure 2 of the CDC to the consent, the respondents referred the Court to contemporaneous correspondence in evidence to demonstrate that the certifier not only had possession of, but referred to and was cognisant of, the consent and its conditions. The correspondence was annexed to an affidavit of Mr Alex Novakovic affirmed 18 May 2015. Mr Novakovic is the managing director of IPM. The correspondence revealed that:
1. on 7 March 2012, the copy of the original development consent was sent to the certifier;
2. on 23 December 2013, Mr James Harrison, a director at JBA, an urban development consultancy firm engaged by IPM, noted in an email to Mr Novakovic that in obtaining a CDC there would have to be compliance with the conditions of the development consent as amended (the consent), particularly to the conditions relating to limiting trucks, offensive noise and that "the other conditions would have to be reviewed";
3. on 16 January 2014, Mr Ben Craig, the Principle Planner at JBA, emailed Mr Novakovic stating that he had gone through the Codes SEPP and noted that one of the "key clauses" he would need to "look closely at" was cl 5.6(1)(b), which he then set out in the email. He stated that there were a number of conditions that IPM would have to adhere to in seeking the CDC, "most notably" those relating to service deliveries, loading times, truck sizes, noise and hours of operation. He stated that "looking at the consent there doesn't appear to be much else that would cause any complications". There was, however, no specific mention of conditions concerning carparking;
4. on 31 January 2014, Mr Novakovic emailed the certifier regarding the "Dan Murphy fit out DA which has been refused by council and we have subsequently lodged an appeal with the L+EC, please see attached SEPP and comments from JBA below" (a reference to the email above on 16 January 2014). Mr Novakovic expressed a desire to have the CDC issued quickly;
5. on 3 February 2014, Mr Novakovic received an email from the certifier stating that certain items were required before the CDC could be issued. The email noted that there were no approved operating hours under the "DA" and that the development would be limited to those under the CDC conditions unless a separate DA was lodged to vary the operating hours. A discrepancy between the Sch 8 Codes SEPP conditions and those in the DA in relation to hours of operation was identified. The list of items concerning the certifier did not refer to carparking;
6. on 25 February 2014, the certifier emailed Mr Novakovic, "following a review of details received to date", outlining what was required to issue the CDC. While there was no express direct reference to the consent, there was a reference to the operating hours noting that any variation to the hours approved under the CDC would require a "separate DA";
7. the certifier emailed Mr Novakovic on 26 February 2014, with comments in response to some questions Mr Novakovic had posed to him earlier in the day concerning, relevantly, conditions 117 and 118 of the consent regarding acoustic limits; and
8. four days before the issuing of the CDC, on 6 March 2014, the certifier emailed Mr Novakovic noting a number of "BCA compliance matters to be addressed" which included access and egress, fire safety measures, health and amenity, and energy efficiency. Again the email noted the approved hours of operation under the CDC and that any alteration to these would "require a separate DA".
IPM also relied on an affidavit of Mr Ravi Singh, the Regional Property Manager for Woolworths Limited ("Woolworths"), who has entered into a lease agreement with the second respondent in relation to the proposed Dan Murphy's store. Mr Singh deposed to the fact that on 4 March 2014 (six days before the issuing of the CDC), he attended a site inspection with the certifier, Mr Novakovic, and other representatives of Woolworths, to discuss the CDC application. At the site inspection, the certifier asked him what Woolworths intended to do in relation to delivery trucks given the 6.5m truck size limit contained in the consent. Mr Singh responded by telling him that Woolworths intended to have specialist delivery vehicles manufactured to achieve compliance with the consent.
Finally, IPM relied upon the construction certificate ("CC") issued by the certifier in respect of the premises on 13 December 2013, approximately three months prior to the issuing of the CDC. The CC related to:
…the demolition of above ground structures, retention of existing basement carparking and erection of a mixed use shop/multiple dwelling development building with associated carparking and landscaping.
The certification stated the following:
Certification
I Dean Morton certify that work completed in accordance with the documentation contained in the annexures (with such modifications verified by me as may be shown on the documentation) will comply with the requirements of the Environmental Planning & Assessment Regulation 2000 as referred to in Section 81A(5) of the Environmental Planning & Assessment Act 1979.
Similar to the CDC, the CC set out the "Supporting Documentation" in Annexure 1. These documents comprised:
Annexure 1 - Supporting Documentation
Construction Certificate Application 3 pages
Compliance Certificate/Evidence of Suitability
Fire Engineering Report
Fire Engineering Professionals
Report Number 2012/741 - R3.4
Addendum 1 Report R1.0
Dated 3 December 2013 40 pages
Other Supporting Documentation
BASIX Certificate
Certificate Number 387387M_12
NSW Department of Planning
Dated 23 May 2013 19 pages
Performance Verification Report
Anthony Protas Consulting Pty Ltd
Dated 25 November 2013 11 pages
Again, the consent was not referred to in the "Supporting Documentation", notwithstanding that both the original development consent and the modified consent were both expressly referred to in the CC and that he was obliged to consider the consent under s 81A(5) of the EPAA and cl 146 of the EPA Regulations.
Undaunted by this evidence, the council relied on a trilogy of cases (Devine v Devine (1928) 28 SR (NSW) 503 (at 508), FAI Insurances Ltd v Zoric [1991] FCA 40; (1991) 28 FCR 250 (at 259), and Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 (at [45]-[48])) to argue that by signing the CDC and stating that "the determination was made on the basis of the documentation contained in the annexure to this certificate", the certifier was representing that these were the only documents he had considered in determining whether the development was complying development and the CDC ought to be issued; a representation that, by dint of his signature, he ought to be bound by.
There are, in my opinion, a number of difficulties with this proposition and the council's reliance on these cases. First, the authorities relied upon by the council may be distinguished, concerning as they do, signatures on contracts (whether a contract of insurance or a contract of carriage). A party signing a document to give effect to contractual relations stands in a very different position from a certifier signing a CDC. The signature on a CDC by a certifier rises no higher, in my opinion, than a representation that in the opinion of the certifier the proposed development is complying development that will comply with the applicable development standards and any relevant statutory requirements governing its issue. That is all. So much so is evident in the present case from the words "I Dean Morton certify that…" which appear after the paragraph upon which the council relies, and which do not refer to any documentation upon which the determination is based. This may be contrasted with signatories to a contract who, by signing the document, generally represent that they are bound by all of its terms, thereby conferring upon the document an efficacy that enables the parties to it to regulate their affairs with certainty.
Second, and by way of corollary, the only reliance a third party, such as the council or the respondents, places on the CDC, is the representation made by the certifier that the proposed development is, in his or her opinion, complying development according to law. That is all that is required for the development to proceed. It is not the statement that in forming the requisite opinion the certifier considered particular documents. That the certifier has considered all the mandatory relevant documents in arriving at his or her determination may, subject to evidence to the contrary, be inferred from the formation of the opinion.
Third, there is no, as the respondents observed, statutory prescription that the CDC must contain an exhaustive, or indeed any, statement of the documents the certifier considered in the process of issuing the certificate. If the legislature had intended the certificate to contain any such statement it may be presumed that it would have done so in the EPA Regulations. The practical effect of adopting the council's submission would be to impose an obligation on the certifier that Parliament has chosen not to enact.
Fourth, to find otherwise will not make the task of reviewing for error any harder, if there has been jurisdictional error in the formation of the opinion, this will become evident by examining the documentation and conditions attached to the CDC and the most recent consent.
In my opinion, having regard to all of the evidence surrounding the issuing of the CDC, a clear inference may be drawn that at all relevant times the certifier had regard to the consent during the process of his determination. I come to this conclusion notwithstanding that there is no direct evidence that the certifier had in his contemplation the conditions of the consent that concerned carparking. Not only was this level of specificity not part, initially at least, of the more general complaint by the council that the certifier failed to have regard to the consent whatsoever, the simple explanation for this omission may be because the certifier did not consider that any conflict existed between the proposed CDC and the consent on this issue. This is elaborated upon below.
The better construction of the statement by the certifier that the determination had been made on the basis of the documents contained in Annexure 2, is that this was not intended to be an exhaustive list. The certifier is not a lawyer and the certificate is not a statement of reasons. Such an explanation is consistent with the manner and form with which this certifier drafts his certificates. This is demonstrated by the CC, which employed the same language and structure notwithstanding that the consent had plainly been considered.
I therefore do not find that the certifier did not take into account the consent in determining to issue the CDC.
The applicable legal principles of construction relating to subordinate legislation are as follows:
1. first, as already noted above at [45], the general principles relating to the interpretation of primary legislation (Acts of Parliament) are equally applicable to the interpretation of subordinate legislation (including environmental planning instruments), for example, the Codes SEPP (Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [36]-[46] and [63], Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58; (2010) 173 LGERA 240 at [32]-[33], Olsson v Goulburn Mulwaree Council & Minister Administering the Crown Land Act 1989, Olsson v Minister Administering the Crown Land Act 1989 [2010] NSWLEC 169; 176 LGERA 71 at [22], Lloyd v Wollongong City Council [2015] NSWLEC 146 at [67] and Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 at [41]-[47]);
2. second, it is legitimate to have regard to the fact that subordinate legislation is generally less carefully drafted than primary legislation and may therefore be construed having regard to more practical considerations, rather than by a rigorous examination of its language as might be more appropriate when construing an Act of Parliament. In particular, it must be acknowledged that planning instruments are not always drafted with pellucid clarity or with a keen eye to taxonomy (Egan v Hawkesbury City Council (1993) 79 LGERA 321 at 331 per Meagher JA) and that "any attempt to always find planning logic in planning instruments is generally a barren exercise" (Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104 at [25], Driscoll v J Scott Pty Ltd (1976) 36 LGRA 159 (at 163-164), Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316 (at [37]), Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [9] and Benedict Industries (No 4) at [43]); and
3. third, words that are not defined in statutory instruments are generally given their ordinary meaning.
As for the interpretation of development consents (which includes the CDC: see the definition of "development consent" in s 4(1) of the EPAA), the principles were recently and comprehensively discussed in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (at [93]) and Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 (at [39]-[48]). They are well known and do not demand repetition. I have had regard to them in writing these reasons.
In addition to the principles articulated in those cases, it should be recalled that, wherever possible, the relevant conditions of the CDC, especially insofar as it incorporates verbatim the conditions contained in Sch 8 of the Codes SEPP, together with the conditions of the consent, should be construed in a manner that promotes harmony between the two instruments and avoids conflict (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304-305, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [68]-[70] and Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [36]-[43] and [63]).
Finally, it must also be borne in mind that the conditions contained in Sch 8 of the Codes SEPP are mandatory and must be incorporated into every CDC for development under Pt 5 of that SEPP (cl 5.25). This includes development not only for the first use of premises and for change of use, but also development comprising, for example, shop awning repairs (Subdiv 5), and directory board signs (Subdiv 8). It is, as the respondents submitted, therefore no surprise that many of the Sch 8 conditions will have no operative effect, and to avoid breach through non-compliance, a construction that fashions these conditions to suit the individual development the subject of the CDC will be necessary.
Applying the tenets of construction above, there are, the respondents contend, three available interpretations of condition 24 in the CDC (in the context of cl 5.6(1)(b) of the Codes SEPP), each of which are in conformity with the consent, and do not give rise to any irreconcilable conflict.
First, cl 5.6 of the Codes SEPP is contained within Subdiv 3 concerning "First use of premises". Clause 5.5(1) of that Subdiv 3 makes it clear that the "premises" referred to in cl 5.6(1) can be the first use of "a part of the building", which in this instance, is the ground level retail tenancies. Therefore, the "premises" referred to in condition 24(2)(b) of the CDC should be interpreted as referring to the ground floor tenancies, which is consistent with the ambit of the CDC insofar as it only relates to and controls the premises referred to in the certificate. The CDC does not relate to the whole building, only the subject matter of the development consent itself, namely, the retail tenancies (see c 5.5). This is in conformity with the definition of "premises" in s 4(1) of the EPAA ("(a) a building of any description or any part of it and the appurtenances to it").
Condition 24(2) of the CDC cannot be construed in isolation. It is a condition confined in its operation to the regulation of the development, that is to say, the first use of the ground level tenancies. The reference in condition 24(2) to "car spaces" must be a reference to those car spaces that are required by the consent to be available for the development. To identify these spaces, an examination of the relevant conditions of the consent is required (conditions 89, 90, 109 and 116). It is these spaces which "must be used solely…for the parking of vehicles associated with the use of the premises" in condition 24(2)(b). It was not in contention that the word "solely" qualifies both the use for vehicular access and the use for the parking of vehicles associated with the use of the premises.
Therefore, the car spaces in condition 24(2)(b) of the CDC that must be "used solely… for the parking of vehicles associated with use of the premises" means those car spaces, if there are any, that are part of the "premises", or in other words, the ground floor retail tenancies. In this instance, however, there are no car spaces included as part of the "premises" properly construed, and hence, condition 24(2)(b) may be ignored. This is consistent with any argument that the carpark is a class 7A building that cannot be the subject of a CDC.
That condition 24(2)(b) of the CDC has no work to do, does not, in this case, matter. As explained above, the Sch 8 conditions are generic in nature and must be imposed on every Pt 5 development for which a CDC is granted. For example, condition 25 of the CDC requires the replacement of trees and shrubs and the maintenance of landscaped areas. It is not difficult to envisage developments that involve no planting or landscaping whatsoever, in which case the condition can be appropriately disregarded as inapplicable to the subject development.
A CDC is intended to support, and not subvert, the work of the council in granting consent through a merit assessment of the development under s 79C of the EPAA. The provisions of a CDC are not intended to trump the consent. Here the council determined that there must be a public carpark. The construction above plainly preserves this intent, albeit at the expense of any dedicated spaces for retail carparking.
Second, and in the alternative, if, contrary to the analysis above, the "premises" referred to in condition 24(2)(b) of the CDC are not confined to the ground floor retail tenancies but include the car spaces attached to it, then the question that arises is what are the car spaces which "must be used", in compliance with condition 24(2)(b), "solely…for the parking of vehicles associated with the use of the premises"?
Turning to the consent, and in particular condition 90, the relevant car spaces are those that form part of the premises, that is to say, those associated with the ground floor retail tenancies, and not all of the 89 car spaces allocated to the building (40 of which are allocated exclusively to residential use, 40 are to be allocated as "shop/public carparking spaces", and nine are to be allocated as resident visitor and/or public carparking spaces: condition 90 of the consent). Therefore, upon its proper construction, at its highest, the consent requires that 40 of the 89 provided car spaces be provided for use as retail car spaces.
But the consent only obliges that the 40 spaces be required for use for that purpose when they are available - where they are not in use for their alternative nominated purpose, namely, public carparking spaces. There is, for example, nothing in the consent that obliges the 40 car spaces for the purpose of retail parking to be delineated. There is nothing in the consent that obliges that any additional spaces for retail tenancy purposes be made available when all 49 public car spaces are occupied.
On this basis, the development is not in contravention of condition 90 of the consent (which addresses the user demand of the whole building, including residential demand) because condition 24(2)(b) of the CDC only regulates the, if any, unoccupied spaces in the retail tenancy/public carparking pool. Condition 24(2)(b) is not intended to control all 89 car spaces in the building, rather it is intended to control the spaces that "must be used solely for…the parking of vehicles associated with use of the premises [the ground floor retail tenancies]", or in other words, the 40 car spaces that constitute shop/public carparking spaces that are available from time to time.
This construction is supported by condition 89 of the consent, which states that the council is to manage the 49 (40 + 9) public parking spaces (in accordance with the obligations imposed on it in condition 116), and condition 109 of the consent, which says that "parking areas" shall be used "solely for such purposes", that is to say, parking purposes.
Third, and finally, the respondents relied upon the fact that the "premises" are identified in the CDC as "718-728 Military Road, Mosman", both its upper stories and its basement level, which must have a corresponding meaning in condition 24(2)(b) of the CDC. The lawful use of the premises is governed by the consent and the CDC and involves, among other things, both retail tenancy uses and public carparking uses. Public carparking in the 49 carparking spaces is therefore the parking of "vehicles associated with the use of the premises" in condition 24(2)(b) of the CDC. On this basis, there is no inconsistency between the conditions of the consent concerning carparking and condition 24(2)(b) of the CDC. This analysis is also supported by condition 89 (which states that "all public parking spaces (49)" shall be managed by the council) and condition 116 (which indicates that basement level parking, "excluding the forty (40) resident car spaces", shall be controlled and managed by the council).
Put another way, none of the car spaces are specifically allocated to retail in condition 90 of the consent. Rather, the 40 spaces allocated as "shop/public carparking spaces" are, in truth, public car spaces managed by the council. In these circumstances, there are no exclusive retail tenancy car spaces which condition 24(2)(b) of the CDC impinges upon.
In my opinion, I accept as correct the first of the three alternative constructions of condition 24(2)(b) of the CDC and find, for the reasons given by the respondents, that there is no irreconcilable conflict between the consent and the CDC.
Having agreed with the submissions of the respondents in relation to the first of their three alternative constructions of condition 24(2)(b) of the CDC, I do not have to decide to finality if the remaining two interpretations are correct. It suffices to note that in respect of the second and third constructions, these are problematic insofar as it is arguable that a carpark is a class 7A building that cannot be the subject of a first use CDC, assuming of course that the "premises" referred to in condition 24(2)(b) of the CDC does not extend to both the retail tenancy and the carparking area. More particularly in relation to the third construction, this suffers from the additional potential defect that "premises" in the CDC is defined by its physical location, which ignores both the definition of "premises" in s 4(1) of the EPAA and the use of that concept in cl 5.5 ("the first use of part of a building"). It also does not accord with the description of the property in the consent as "710 Military Road, Mosman".