Norman v Central Coast Council

Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 Universal Property Group v Blacktown City Council [2020] NSWCA 106 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Texts Cited: Explanatory Note to the Covid-19 Legislation Amendment (Emergency Measures - Miscellaneous) Bill 2020 New South Wales, Legislative Parliamentary Debates, Legislative Assembly, 12 May 2020 Category: Principal judgment Parties: Michael Rex Norman (Applicant) Central Coast Council (Respondent) Representation: Counsel: J Lazarus SC and T Poisel (Applicant) L Mulligan and S Simmington (Respondent)

Solicitors: Conditsis Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/241768 Publication restriction: Nil

The Council Makes a Decision Absent Power

1. These proceedings for consent orders concern a judicial review challenge to the validity of a condition of a deferred development consent granted by the respondent, the Central Coast Council ("Council"), on 12 October 2021, in favour of the applicant, Michael Norman ("consent").
2. The impugned condition purports to impose a 12 month period of compliance in respect of four deferred commencement conditions ("the condition") to avoid the consent lapsing.
3. The challenge to the condition is on the basis that it contravenes s 4.53(6)(b) and (6B) of the Environmental Planning and Assessment Act 1979 ("EPAA"), and therefore, the Council has no power to impose it.
4. For the reasons that follow, I am satisfied that the imposition of the condition was contrary to s 4.53(6)(b) and (6B) of the EPAA and that relief to the effect of that sought in the summons ought to be granted.

The Council Approves a Rural Subdivision by the Granting of a Deferred Development Consent

1. The relevant background facts to the proceedings were agreed to between the parties.
2. On 27 March 2018 SJH Planning & Design (on behalf of Norman) lodged development application DA 54061/2018 with the Council, seeking consent for a rural subdivision and the construction of a dwelling on each subdivided lot on land known as 46-56 Kerns Road, Kincumber.
3. On 12 October 2021 the Council granted the consent, including four deferred commencement conditions imposing a 12 month period for their completion.
4. The condition stated as follows (emphasis added): This consent does not operate until the following have been satisfied: A In accordance with section 4.16(3) of the Environmental Planning and Assessment Act 1979, a deferred commencement consent is granted to Development Application No. 54061 for subdivision of six (6) lots to create six (6) lots with a dwelling on each lot on Lot 11 DP 2180, Lot 12 DP 2180, Lot 13 DP 2180, Lot 31 DP 2180, Lot 32, DP 2180, Lot 33 DP 2180, No.54 Kerns Road Kincumber,,50 Kerns Road Kincumber,46 Kerns Road Kincumber,48 Kerns Road Kincumber, 52 Kerns Road Kincumber,56 Kerns Road Kincumber is subject to the following conditions being met to the satisfaction of Council within twelve (12) months of the date of this consent. Such satisfaction will be achieved by: … Upon compliance with the conditions of deferred commencement and written notification by Council, the consent shall become operative subject to the attached conditions. Evidence must be produced to the consent authority sufficient to enable it to be satisfied that above conditions have been complied within twelve (12) months of the date of this approval, otherwise this consent will lapse.
5. The consent was granted within the "prescribed period" as defined in s 4.53(8) of the EPAA (see below).
6. On 28 October 2021 the Council published a notice, in accordance with cl 124 of the Environment Planning and Assessment Regulation 2000, for the purpose of s 4.59 of the EPAA.
7. On 16 August 2022 Norman filed the summons to commence Class 4 proceedings in this Court challenging the validity of the condition.
8. The proceedings were expedited on 26 August 2022 due to the imminent lapsing of the consent in October 2022.

The Statutory Framework Governing the Lapsing of Consents

1. At the time that the consent was granted, s 4.16(3) of the EPAA provided: 4.16 Determination … (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
2. Section 4.53 of the EPAA relevantly stated (emphasis added): 4.53 Lapsing of consent (1) A development consent lapses - (a) 5 years after the date from which it operates if the development consent commences operation after the prescribed period, or (b) 5 years after the date from which it operates if the development consent commences operation during the prescribed period, or (c) 2 years after the date on which the development consent would otherwise have lapsed if the development consent commenced operation before, and has not lapsed at, the commencement of the prescribed period. (2) A consent authority may reduce a period specified in subsection (1)(a) or (b) in granting development consent. (3) Subsection (2) does not - (a) apply to development consent granted to a concept development application under Division 4.4 for development that requires a subsequent development application and consent, or (b) authorise a reduction to be made that would cause - (i) a development consent to erect or demolish a building or to subdivide land to lapse within 2 years after the date from which the consent operates, or (ii) a development consent that commences operation during the prescribed period to lapse within 5 years after the date from which the consent operates, or (iii) a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent. (3A) For a development consent that lapsed after the commencement of the prescribed period and before the commencement of subsection (1)(c) - (a) the development consent is taken not to have lapsed, and (b) subsection (1)(c) applies to the development consent. … (6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within - (a) 5 years after the grant of consent if the consent is granted after the prescribed period, or (b) 5 years after the grant of consent if the consent is granted during the prescribed period, or (c) 2 years after the date on which the development consent would otherwise have lapsed if - (i) the grant of consent was before the commencement of the prescribed period, and (ii) the development consent has not lapsed at that commencement. (6A) A consent authority may reduce a period specified in subsection (6)(a) or (b) in granting development consent. (6B) Subsection (6A) does not authorise a reduction to be made that would cause a development consent granted during the prescribed period to lapse within 5 years after the date on which it was granted. … (8) In this section - prescribed period means the period commencing on 25 March 2020 and ending on 25 March 2022.

Issues for Determination

1. On any view, the proceedings have been filed out of time either pursuant to s 4.59 of the EPAA or r 59.10(1) of the Uniform Civil Procedure Rules 2005 ("UCPR"), both of which stipulate a time period of three months by which proceedings are to be commenced. A threshold question arises as to whether the Court has the power to extend time to commence the proceedings.
2. The principal issue for determination concerns the proper construction of s 4.53 of the EPAA. That is, does it prohibit a consent authority from imposing a condition that reduces the time period within which to satisfy deferred commencement conditions to less than five years when granting development consent.
3. The issue arises because of an apparent conflict between the operation of s 4.53(6A) of the EPAA, which empowers a consent authority to reduce the period specified in s 4.53(6)(a) "or (b)" without limitation, and s 4.53(6)(b) and (6B) of that Act, which prohibit a consent authority reducing the same period to less than five years after the date of its grant. The provisions are seemingly irreconcilable.

The Court Extends Time to Commence the Proceedings

1. Norman filed the summons seeking judicial review approximately 14 months after the Council publicly notified consent. This was plainly in excess of the three month limitation period imposed by s 4.59 of the EPAA: 4.59 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 a 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.
2. It was also out of time for the purpose of r 59.10(1) of the UCPR which requires proceedings to be brought within three months from the date of the decision under review. The consent was granted on 12 October 2021 and the summons was filed on 16 August 2022, that is, 10 months later. Accordingly, Norman requires leave to bring the proceedings out of time.
3. Rule 59.10 of the UCPR provides 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.
4. As r 59.10(4) of the UCPR makes plain, if the limitation period contained in s 4.59 of the EPAA applies, then the statutory limitation period in r 59.10(1) does not apply and neither does the power of the Court to extend time contained in r 59.10(2) (Bankstown City Council v Ramahi [2015] NSWLEC 74 at [72]-[73] per Preston J and Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252; [2016] NSWLEC 26 at [74]).

The Proper Construction of s 4.53 of the EPAA

1. As stated above, resolution of the principal issue concerns the proper construction of s 4.53 (6)(b), (6A) and (6B) of the EPAA.

The Relevant Principles of Statutory Construction

1. It is convenient to briefly outline the principles of statutory construction applicable to the determination of the principal issue.
2. First, the fundamental object of statutory construction is to ascertain the objective intention of the legislature by reference to the language of the statute read as a whole and having regards to its purpose (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]). The modern approach to statutory construction emphasises the centrality of the text as the starting point (Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [31], SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] and [37] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]). That is, "the process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose" (Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 at [26]. See the useful summary of the principles applicable to statutory construction in Sydney Sea Planes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [26]-[41]).
3. Second, the context includes the general policy and purpose of a provision, and in particular, the mischief it is seeking to remedy (s 33 of the Interpretation Act 1987 and Binsaris v Northern Territory of Australia (2020) 270 CLR 549; [2020] HCA 22 at [54]).
4. Third, determination of the proper construction of a statute may be assisted by reference to extrinsic materials. However, historical considerations and extrinsic materials cannot be relied upon to supplant the clear meaning of the language (Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 96 ALJR 209; [2021] HCA 39 at [87]). As Kiefel J (as her Honour then was) cautioned in Certain Lloyd's Underwriters Subscribing to Contract No 1H00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 (at [89]): 89 It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit.

The Submissions of the Parties

1. As the parties jointly submitted, the operation of s 4.53 of the EPAA gives rise to an internal inconsistency, namely, that s 4.53(6)(b) states that a deferred development consent will lapse after five years where there has been non-compliance with its conditions. However, s 4.53(6A) of that Act empowers the Council to impose some lesser time period than the five years stipulated in s 4.53(6)(b). This is expressly contradicted by s 4.53(6B) which says that s 4.53(6A) does not empower a consent authority to impose a time period that would cause a consent to lapse before five years after the date upon which it was granted. In other words, s 4.53(6A) permits the Council to impose the condition in the consent, whereas s 4.53(6B) prohibits that same condition. The two provisions are wholly contradictory and cannot be reconciled.
2. Applying the principles outlined above, the parties therefore contended that it is necessary to read down the words "or 6(b)" contained in s 4.53(6A) by way of omission in order to remedy the obvious inherent defect. This is because: 1. first, as was common ground, the consent was granted during the prescribed period, and therefore, falls within the ambit of s 4.53(6)(b) of the EPAA which provides for a five year lapsing period; 2. second, there is a textual conflict between s 4.53(6A) and (6B) as described above, which leads to inconsistency within the Act and absurdity of result; 3. third, when the Court has regard to the legislative history of s 4.53 of the EPAA, the extrinsic materials reveal that the legislative intention was that deferred commencement consents granted during the prescribed period should not lapse before the expiration of five years; and therefore 4. fourth, s 4.53(6A) must be read down to confine the operation of s 4.53(6B) to ensure that the Council cannot impose a lesser lapsing period than the five year period specified in s 4.53(6)(b).
3. Resolution of the internal textual dissonance within s 4.53 of the EPAA at the heart of these proceedings accordingly necessitates consideration by the Court of whether there is a drafting error contained within s 4.53, and if so, whether s 4.53(6A) of the EPAA should be read down in the manner proposed above to avoid it.

Section 4.53(6A) Must be Construed to Correct a Drafting Error

1. Recourse to the literal text of s 4.53 of the EPAA is of limited assistance in circumstances where s 4.53(6A) and (6B) are directly contradictory. In order to better understand the genesis of this drafting anomaly, and the intended operation of the provision, recourse to extrinsic materials is warranted.
2. Section 4.53(6), (6A) and (6B) of the EPAA were inserted into that Act by the Covid-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 ("Covid-19 Amendment Act"), which came into force on 14 May 2020. That Act sought to amend various enactments in order to implement emergency measures occasioned by the Covid-19 pandemic. As emergency legislation, it was appropriate to draft and pass the Covid-19 Amendment Act with alacrity.
3. Prior to the Covid-19 Amendment Act, s 4.53(6) of the EPAA granted the Council wide discretionary power to impose variable time limits within which deferred commencement conditions had to be satisfied: 4.53 Lapsing of consent … (6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.
4. Thus, a proponent had a maximum of five years within which deferred commencement conditions had to be complied with but a lesser time period could be specified for by the consent authority.
5. The Covid-19 Amendment Act was introduced as the Covid-19 Legislation Amendment (Emergency Measures - Miscellaneous) Bill 2020 ("the Covid-19 Amendment Bill") into the New South Wales Legislative Assembly on 12 May 2020.
6. The second reading speech of the Covid-19 Amendment Bill, by the Attorney-General for New South Wales, the Hon Mark Speakman SC MP, explained the purpose of the Bill as follows (New South Wales, Legislative Parliamentary Debates, Legislative Assembly, 12 May 2020, 2033 ("Covid-19 Amendment Bill Speech")): The Government has made various adjustments to government processes and systems to ensure that essential services can continue to be provided while practising social distancing and reducing personal contact in adherence with NSW Health guidelines and health orders.

The Council is to pay Norman's Costs

1. The parties consented to an order that the Council pay Norman's costs of the proceedings. These being Class 4 proceedings, such an order is appropriate in circumstances where the Council purported to impose a condition absent any power to do so.

Orders

1. The orders of the Court are as follows: 1. an order pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 that time to commence the proceedings be extended to 16 August 2022, the date upon which the summons was filed; 2. in relation to development consent DA54061/2018 granted by the Council on 12 October 2021, a declaration that the 12 month period for the satisfaction of the deferred commencement conditions referred to in section A of that consent is invalid; 3. an order setting aside the 12 month period for the satisfaction of the deferred commencement conditions referred to in section A of that consent; 4. the Council is to pay Norman's costs of the proceedings; and 5. the exhibits are to be returned.

Amendments 20 September 2022 - Corrected paragraph numbering. 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: 20 September 2022