North Sydney Council v Michael Standley and Associates

In my judgment, the Council's arguments are generally to be preferred. I shall briefly state my reasons for so concluding.

1. The 1995 development consent clearly is of the kind referred to in s 79B(3) because not only is it "likely" that the carrying out of the approved development will significantly affect a threatened species or ecological community or its habitat, it is certain to have that impact. This conclusion is unaffected by the fact that the 1995 development consent was granted before the commencement of the Threatened Species Conservation Act 1995, on 1 January 1996, or the fact that the listing of the Byron Bay Dwarf Graminoid Clay Heath Community as an "endangered ecological community" in terms of that Act has only occurred last month.
2. Section 96(5) operates according to its terms, to prohibit the modification of the 1995 development consent "unless the requirements of s 79B(3) - (7) have been complied with". The only exception provided to this qualified statutory prohibition is the case of a "minor modification", that term apparently being confined to modifications referred to in s 96(1). There is, and can be, no suggestion that the proposed modification falls within the ambit of s 96(1). Clearly, the modification falls within the ambit of s 96(2) and equally clearly, s 96(5) applies to it.

It is neither necessary nor legitimate to seek to limit, as the Applicant's argument would have it, the scope and operation of s 96(5) to modifications that have the potential " to affect threatened species " etc, the statutory language being clear and unambiguous. 3. The requirements of s 79B(3) - (7) have not been complied with where, as in the present case, the Director General has refused to grant concurrence. Again, it is neither necessary nor legitimate to seek to limit the requirement for concurrence under s 79B(3) to a modification application only where the proposed modification is capable of affecting threatened species.

Moreover, it must be recalled that s 96 is expressly concerned with the modification of a development consent . It follows, that a development consent may be modified, by for example, a deletion or variation of a condition of development consent, without such modification having any physical effect upon the approved development. Nonetheless, such example is a " modification application " subject to the operation of s 96(2) and where applicable, s 96(5) . 4. The present modification application seeks to modify the 1995 development consent by modifying condition 23 . It is not necessary in these proceedings to adjudicate upon the rival interpretations of that part of the condition that requires approval by the Council's Planning Manager of a plan showing trees required to be removed " prior to any works commencing ", because even if I were prepared to accept the Applicant' interpretation of the condition, that result would not change the fact that the present modification application falls within the ambits of s 96(5) and s 79B(3) because those ambits are exclusively delineated by reference to the development consent sought to be modified and not by reference to the modification . 5. The refusal of concurrence by the Director General inevitably means that there has not been compliance with s 79B(3) - (7) and accordingly, the statutory prohibition on modifying the 1995 development consent operates in the present case. 6. The operation of that statutory prohibition is not capable of being overcome by recourse to the LEC Act s 39(6) because the Court's statutory function to determine the present modification application is qua the relevant " consent authority " ( cl 72 of the Regulation) and not, by way of appeal against the decision of a consent authority. Where the Court is required to determine a modification application qua the consent authority there is no appeal against its determination - vide the EP&A Act s 96(7) . 7. There being be no appeal from the Court's determination of the modification application, the faculty conferred upon the Court by the LEC Act s 39(6) exercisable by the Court in determining " the appeal " is simply not available in the present case. In so concluding, I reject the Applicant's argument based upon the meaning of " appeal " provided by the LEC Act s 39(1) . It requires the conclusion that for the purpose of invoking s 39(6) , the Court is at one and the same time to be regarded as " the consent authority " and the appellate body determining an appeal against the decision of that consent authority. Such a dual personality is an absurdity.

For the foregoing reasons, I hold that the EP&A Act s 96(5) prohibits the Court from granting the modification application, which must, accordingly be refused.

For completeness, I should say that had I accepted the Applicant's submissions in relation to the EP&A Act s 96(5) and s 79B(3) or its submission in relation to the LEC Act s 39(6), I would not have accepted its submissions in respect of the EP&A Act, s 96(3) which provides as follows:

In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application

Those submissions necessarily sought to distinguish the majority judgment of the Court of Appeal in North Sydney Council v Michael Standley and Associates (1998) 97 LGERA 433 holding that the reference in the EP&A Act s 102(3A) (the identical antecedent to s 96(3) ) to the expression " the development, the subject of the application " was a reference to the development as modified and was not limited to the modification to that development. The Applicant's subtle argument was based upon the recent amendment to s 96 enacted by the Environmental Planning and Assessment (Amendment) Act 1999 but not yet in force, (Act No 72 assented to on 3 December 1999) which would appear to have been intended to overcome another aspect of the Court of Appeal's decision in Michael Standley in holding that the statutory requirement " that the development as modified be substantially the same development " was satisfied by comparing the proposal with the development as approved, including all subsequent modifications to that approval.

However, the enactment of that amendment, even if it were in force, does not, in my opinion affect the majority's decision on the particular aspect of s 96 now under consideration, namely the effect of s 102(3A) as now enacted in s 96(3). Significantly, Act No 72 of 1999 contains no amendment of s 96(3).

Accordingly, in my judgment, had it been necessary for me to determine the merits of the modification application I would have considered myself bound by the majority decision in Michael Standley to consider the effect of EP&A Act s 79C in respect of the approved development as proposed to be modified.

So considered, and having regard to my earlier findings of the significant adverse environmental impact on the endangered ecological community, I would have readily concluded that the application should be refused on that account.

Before leaving this case, I would emphasise that I have deliberately refrained from expressing my opinions on a number of matters that were either raised in, or underlie and inform, the parties' competing cases. In particular, I express no opinion on whether the 1995 development consent will or will not expire on 15 March 2000. Likewise, I say nothing on whether the Applicant has fulfilled its obligations under condition 23 of the 1995 development consent or whether the requisite approval referred to in that condition has or should have, been granted. Likewise, I have not found it necessary to conclude what is the true meaning of condition 23.

Although I have no doubt that these are issues keenly in dispute between the parties, I am firmly of the opinion that the present proceedings do not provide the occasion or the justification for adjudication on those issues.

For all the foregoing reasons, I order that the modification application be refused.

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4. That Council seek additional, specific environmental legal advice regarding the Detala development with particular reference to the Tree Preservation Issue and the Condition of Consent 23.

5. That a Council delegation seek a meeting with the owners to explore options. Such delegation to comprise the Mayor, two (2) Councillors and the General Manager.

(x) On 17 November 1999, the Applicant's Solicitors advised the Council that they had instructions to immediately commence proceedings in this Court for the modification of the 1995 development consent by deleting condition 23.

(xi) The Council's current Tree Preservation Order (TPO) was made on 20 August 1996 pursuant to the powers conferred by the Environmental Planning and Assessment Model Provisions 1980 cl 8 (which provisions are adopted by the Byron Local Environmental Plan 1988 (the LEP) cl 6)). The relevant terms of the TPO (Exhibit B) are as follows:

No person shall cut down, lop, top, remove or wilfully destroy any species of tree, palm or fern exceeding three (3) metres in height, except with the written consent of Council being obtained beforehand. All coastal heathlands and mangroves of any height are covered by this order and consent within these areas for any lopping or removal of vegetation is required.

The Council also resolved that all applicants seeking approval under the Tree Preservation Order submit development applications.

(xii.) The development site is of high botanical significance in that it contains the following species:-

(i) approximately 1 hectare of Byron Bay Dwarf Granminoid Clay Heath community being a listed endangered ecological community in terms of the Threatened Species Conservation Act 1995, having been included in Pt 3 of Sch 1to the Act by virtue of the final determination of the Scientific Committee established under that Act which was published in Government Gazette No 22 of 11 February 2000;

(ii) the endangered species at both National and State levels, Allocasuarina defungens, the population on the development site representing a significant extension of the known northern geographic limit of the species; and

(iii) the orchid Diuris sp aff chtysantha (Byron Bay) which was given a provisional listing on an emergency basis as an endangered species under the Threatened Species Conservation Act by the determination of the Scientific Committee as notified in Government Gazette No 141 of 17 December 1999;

(xiii.) the carrying out of the development the subject of the 1995 development consent involving clearing of vegetation of up to 70 per cent of the site area (according to the 1995 judgment of Assessor Bly--see page 7) is certain to significantly affect a threatened species, or ecological community or its habitat (within the meaning of those expressions appearing in the EP&A Act s 79B(3)(b);

(xiv.) on 23 December 1999, the Applicant's Solicitors wrote to the Director General of National Parks and Wildlife advising of my interlocutory judgment delivered on 10 December 1999 and seeking his concurrence to the Applicant's modification application on the assumption, which was not conceded, that the modification application "entails anything which would have a significant effect on any threatened species, population or ecological community";

(xv.) on 3 February 2000, the National Parks and Wildlife Service refused the Applicant's request for concurrence to the Applicant's modification application (Exhibit O)

E. ADJUDICATION ON THE MODIFICATION APPLICATION

20. Before there can be an adjudication on the merits of the modification application, it is first necessary to revisit the Council's threshold objection, based upon the EP&A Act s 96(5) which objection was upheld in my interlocutory judgment of 10 December 1999.

Does s 96(5) apply to the Applicant's modification application and if so, what is the effect of the Director General's refusal of concurrence to the application?

22. The Applicant makes the following submissions:

1. Section 96(5) does not apply in the present case because the modification application does not result in any change to the approved development. Rather, the modification is confined to a condition which imposed a primarily administrative or ministerial role upon the Council's Planning Manager. As such, the modification, which merely changes the administrative arrangements, is simply incapable of causing any significant effect on a threatened species or ecological community or its habitat.

2. If contrary to the primary submission, it is held that s 96(5) applies to the present case, the fact that the Director General of National Parks and Wildlife has refused concurrence does not mean that there has been "no compliance with s 79B(3) - (7)" because the concurrence of the Director General is not required to a modification which only affects an administrative change in the regime of conditions of development consent without modifying the approved physical development.

3. If submission 2 is not accepted, the fact that the Director-General has refused concurrence does not preclude the Court from granting the modification application because of the power conferred upon it by the LEC Act s 39(6).

23. The Council's competing submissions are as follows:

1. Section 96(5) clearly applies to the present case because the development consent is clearly "of the kind referred to in s 79B(3)", namely being "development that is likely to significantly affect a threatened species, or endangered species, or ecological community or its habitat".

2. The requirements of s 79B(3) - (7) are not complied with in a case, such as the present, where the Director-General has refused to grant concurrence.

3. The Court, in determining the Applicant's modification application does not have available to it the faculty provided by the LEC Act s 39(6) because it is not determining the application by way of appeal from the decision of a consent authority. Rather, and exceptionally, the Court is itself the consent authority (cl 72 of the Regulation).

4. It is inaccurate to categorise the second sentence of condition 23 as imposing merely an administrative function on the Council's Planning Manager. Rather, the condition imposes an obligation to obtain his approval for the tree removal, as a condition precedent to the commencing the approved development.

24. In my judgment, the Council's arguments are generally to be preferred. I shall briefly state my reasons for so concluding.

1. The 1995 development consent clearly is of the kind referred to in s 79B(3) because not only is it "likely" that the carrying out of the approved development will significantly affect a threatened species or ecological community or its habitat, it is certain to have that impact. This conclusion is unaffected by the fact that the 1995 development consent was granted before the commencement of the Threatened Species Conservation Act 1995, on 1 January 1996, or the fact that the listing of the Byron Bay Dwarf Graminoid Clay Heath Community as an "endangered ecological community" in terms of that Act has only occurred last month.

2. Section 96(5) operates according to its terms, to prohibit the modification of the 1995 development consent "unless the requirements of s 79B(3) - (7) have been complied with". The only exception provided to this qualified statutory prohibition is the case of a "minor modification", that term apparently being confined to modifications referred to in s 96(1). There is, and can be, no suggestion that the proposed modification falls within the ambit of s 96(1). Clearly, the modification falls within the ambit of s 96(2) and equally clearly, s 96(5) applies to it.

It is neither necessary nor legitimate to seek to limit, as the Applicant's argument would have it, the scope and operation of s 96(5) to modifications that have the potential "to affect threatened species" etc, the statutory language being clear and unambiguous.

3. The requirements of s 79B(3) - (7) have not been complied with where, as in the present case, the Director General has refused to grant concurrence. Again, it is neither necessary nor legitimate to seek to limit the requirement for concurrence under s 79B(3) to a modification application only where the proposed modification is capable of affecting threatened species.

Moreover, it must be recalled that s 96 is expressly concerned with the modification of a development consent. It follows, that a development consent may be modified, by for example, a deletion or variation of a condition of development consent, without such modification having any physical effect upon the approved development. Nonetheless, such example is a "modification application" subject to the operation of s 96(2) and where applicable, s 96(5).

4. The present modification application seeks to modify the 1995 development consent by modifying condition 23. It is not necessary in these proceedings to adjudicate upon the rival interpretations of that part of the condition that requires approval by the Council's Planning Manager of a plan showing trees required to be removed "prior to any works commencing", because even if I were prepared to accept the Applicant' interpretation of the condition, that result would not change the fact that the present modification application falls within the ambits of s 96(5) and s 79B(3) because those ambits are exclusively delineated by reference to the development consent sought to be modified and not by reference to the modification.

5. The refusal of concurrence by the Director General inevitably means that there has not been compliance with s 79B(3) - (7) and accordingly, the statutory prohibition on modifying the 1995 development consent operates in the present case.

6. The operation of that statutory prohibition is not capable of being overcome by recourse to the LEC Act s 39(6) because the Court's statutory function to determine the present modification application is qua the relevant "consent authority" (cl 72 of the Regulation) and not, by way of appeal against the decision of a consent authority. Where the Court is required to determine a modification application qua the consent authority there is no appeal against its determination--vide the EP&A Act s 96(7).

7. There being be no appeal from the Court's determination of the modification application, the faculty conferred upon the Court by the LEC Act s 39(6) exercisable by the Court in determining "the appeal" is simply not available in the present case. In so concluding, I reject the Applicant's argument based upon the meaning of "appeal" provided by the LEC Act s 39(1). It requires the conclusion that for the purpose of invoking s 39(6), the Court is at one and the same time to be regarded as "the consent authority" and the appellate body determining an appeal against the decision of that consent authority. Such a dual personality is an absurdity.

25. For the foregoing reasons, I hold that the EP&A Act s 96(5) prohibits the Court from granting the modification application, which must, accordingly be refused.

26. For completeness, I should say that had I accepted the Applicant's submissions in relation to the EP&A Act s 96(5) and s 79B(3) or its submission in relation to the LEC Act s 39(6), I would not have accepted its submissions in respect of the EP&A Act, s 96(3) which provides as follows:

In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application

27. Those submissions necessarily sought to distinguish the majority judgment of the Court of Appeal in North Sydney Council v Michael Standley and Associates [1998] NSWSC 163; (1998) 97 LGERA 433 holding that the reference in the EP&A Act s 102(3A) (the identical antecedent to s 96(3)) to the expression "the development, the subject of the application" was a reference to the development as modified and was not limited to the modification to that development. The Applicant's subtle argument was based upon the recent amendment to s 96 enacted by the Environmental Planning and Assessment (Amendment) Act 1999 but not yet in force, (Act No 72 assented to on 3 December 1999) which would appear to have been intended to overcome another aspect of the Court of Appeal's decision in Michael Standley in holding that the statutory requirement "that the development as modified be substantially the same development" was satisfied by comparing the proposal with the development as approved, including all subsequent modifications to that approval.

28. However, the enactment of that amendment, even if it were in force, does not, in my opinion affect the majority's decision on the particular aspect of s 96 now under consideration, namely the effect of s 102(3A) as now enacted in s 96(3). Significantly, Act No 72 of 1999 contains no amendment of s 96(3).

29. Accordingly, in my judgment, had it been necessary for me to determine the merits of the modification application I would have considered myself bound by the majority decision in Michael Standley to consider the effect of EP&A Act s 79C in respect of the approved development as proposed to be modified.

30. So considered, and having regard to my earlier findings of the significant adverse environmental impact on the endangered ecological community, I would have readily concluded that the application should be refused on that account.

31. Before leaving this case, I would emphasise that I have deliberately refrained from expressing my opinions on a number of matters that were either raised in, or underlie and inform, the parties' competing cases. In particular, I express no opinion on whether the 1995 development consent will or will not expire on 15 March 2000. Likewise, I say nothing on whether the Applicant has fulfilled its obligations under condition 23 of the 1995 development consent or whether the requisite approval referred to in that condition has or should have, been granted. Likewise, I have not found it necessary to conclude what is the true meaning of condition 23.

32. Although I have no doubt that these are issues keenly in dispute between the parties, I am firmly of the opinion that the present proceedings do not provide the occasion or the justification for adjudication on those issues.

33. For all the foregoing reasons, I order that the modification application be refused.