Pathold No 176 Pty Limited v Minister for Transport Services

JUDGMENT CORAM: HIS HONOUR A. INTRODUCTION 1 A number of preliminary questions have been raised in a pending class 1 proceeding being an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the decision of the Respondent, as the relevant consent authority in terms of Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours (SREP 23) in respect of the Applicant's development application for the erection of a "jetty, ramp, pontoon and mooring pen" upon the waters and bed of Sydney Harbour that are adjacent to the Applicant's waterfront premises known as No 12 Shellbank Parade, Cremorne. 2 The pending class 1 proceedings relate to the Respondent's determination of the Applicant's development application, as notified in the Notice of Determination given pursuant to s 81(1)(a) of the EP&A Act on 24 June 2004. The relevant determination, as so notified, granted development consent (subject to conditions) to "the jetty, ramp and pontoon portion of the application" but did not permit the "mooring pen" in respect of which the determination stated: The mooring pen portion of the application constitutes an activity in terms of Part 5 of the Environmental Planning and Assessment Act 1979 and is subject to separate determination in accordance with Part 5 of the Act. The mooring pen is not permitted 3 The following condition was included in the conditions imposed upon the grant of development consent - (m) The facility is to be used only for the casual berthing of vessels at suitable tides and in suitable wave conditions and not being used for the permanent mooring of any vessel at any time. In this regard the lease will prescribe that The Lessee shall ensure that no vessel is moored at or adjacent to the premises for a purpose other than the embarkation or disembarkation of persons or goods . 4 The Notice of Determination included the following content in respect of the decision not to permit the mooring pen: The reason for not permitting the mooring pen is that the foreshore in this locality has unique visual qualities deriving from the strong horizontal elements of the seawall and landscaped foreshore. A large vessel permanently berthed along this foreshore would have an adverse visual impact on this character contrary to: · The objective of Zone No W1 - General Waterways, and · Clause 18(i) of Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours. It is also relevant that the demand for the mooring pen has not been established through vessel ownership as required by Clause 4.2 of the Development Control Plan for Sydney Harbour. For information: · the objective of Zone No W1 - General Waterways of Sydney Regional Environmental Plan NO. 23 - Sydney and Middle Harbours is as follows: a) maintains or enhances important, natural and visual attributes of the harbours and; b) is compatible with the existing or planned future character of the waterway and adjoining foreshores. · Clause 18(i) of Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours is as follows: A consent authority must not consent to the carrying out of development unless it is satisfied that the proposed development is consistent with development of the land to which this plan applies in accordance with the objectives of this plan, and it has considered such of the following matters as are of relevance to the development; i) whether the development will have an adverse effect on the views to and from the waterway as a result of the size of vessels capable of being accommodated within the development; · Clause 4.2 of the Development Control Plan for Sydney Harbour is as follows: The following objectives and requirements must be considered for all water-based and land-water interface development: · The demand for the development has been established; 5 The preliminary questions which have been raised by the Applicant are all directed to the avoidance of the bifurcating effect of the Respondent's determination whereby the "mooring pen" component of the overall proposed development was singled out for separate environmental assessment pursuant to the EP&A Act, Part 5 resulting in a refusal of permission for the erection of the mooring pen concurrently with the grant of development consent for all other components of the proposed development. 6 The ultimate objective of the questions raised is to obtain a judicial determination whether this Court has jurisdiction in the present class 1 proceedings to determine for itself the question whether the "mooring pen" component of the proposed development should be permitted on the planning merits, as an integral feature of the development. 7 The Applicant seeks to avoid the bifurcation of the Respondent's determination because the EP&A Act does not confer any right of appeal in respect of a determination in respect of an "activity" made by a determining authority pursuant to Part 5 of the Act unlike the conferral by s 97 of the Act of a right of appeal in respect of the determination by the consent authority of a development application. 8 In this respect, the parties' competing arguments have focussed on the question whether the "mooring pen" component of the proposed development is a "purpose of development" that in terms of SREP 23 is permissible (i) only with development consent; or (ii) without the need for development consent. 9 The competing arguments invite the Court, by way of judicial determination, to characterise for the purposes of SREP 23 the mooring pen component of the proposed development, thereby going directly to the ultimate question whether the Court has jurisdiction in respect of that matter. Such approach penetrates the external fabric of the case which clearly enough indicates that the whole of the Respondent's determination (including its environmental assessment undertaken pursuant to Part 5 of the EP&A Act in respect of the "mooring pen" component) was made in respect of the Applicant's development application proposing an overall development, and on that account, the pending class 1 application would clearly fall within this Court's jurisdiction conferred by the EP&A Act, s 97 (cf the Land and Environment Court Act 1979, s 17(d)). 10 In truth, what the Court is asked to adjudicate upon is the legal correctness of the basis for the Respondent's bifurcating determination of the Applicant's development application, not upon the judicial review basis of whether that approach was reasonably open to the Respondent but upon the basis of the Court's own evaluation by its determination of a jurisdictional fact, namely the proper characterisation for the purposes of SREP 23 of the proposed development the subject of the Applicant's development application: Woolworths Limited v Pallas Newco Pty Ltd [2004] NSWCA 422. B. THE PRELIMINARY QUESTIONS 11 The preliminary questions raised by the Applicant requiring determination (in advance of any determination of the appeal on the planning merits) are as follows: 1. Is the proposed mooring pen the subject of development application No. 593/04 a single mooring as defined in SREP 23 Sydney and Middle Harbours? 2. If the answer to question 1 is no, is the proposed mooring pen the subject of development application No. 593/04 water-based development as defined in SREP 23 Sydney and Middle Harbours? 3. If the answer to question 2 is yes, is the proposed mooring pen the subject of development application 593/04 ancillary to the jetty, ramp and pontoon (also part of development application 593/04 and now approved by the consent authority) and accordingly, should the mooring pen properly have been considered by the consent authority along with the jetty, ramp and pontoon under Part 4 of the Environmental Planning & Assessment Act 1979? 4. In light of the answers to questions 1 to 3 above, does the Court have jurisdiction to determine the appeal? 12 As will presently appear, there are problems with this formulation which in my opinion are properly avoided by addressing a single question, the answer to which will resolve the parties' competing contentions. C. THE RELEVANT FACTS 13 The relevant facts concerning (i) the development application; and (ii) the applicability of relevant provisions of SREP 23 are not in dispute. 14 Facts relevant to the development application may be deduced from the documentary evidence (Exhibit 1) as follows: (i) In 2003 the Applicant sought " owner's consent " from the Waterways Authority to lodge a development application for a proposed development involving the erection of a jetty, ramp, pontoon and mooring pen in the waters and on the bed, of Sydney Harbour adjacent to the Applicant's residential property known as No 12 Shellbank Parade, Cremorne; (ii) after complying with various requests made by the Waterways Authority for furnishing additional information in respect of the proposed development (including the submission of revised drawings) the Waterways Authority, by letter dated 27 January 2004 gave owner's consent to " the lodgement of a development " application to the North Sydney Council for the proposed development, subject to 3 specified conditions (which are not here relevant) .

Large marinas 17 Clause 5 of SREP 23 contains a number of definitions for the purposes of the Plan where most of the defined terms are some type or kind of a waterfront or waterbased development - including definitions of the following terms (the list is not intended to be exhaustive - rather it is illustrative of the types of development that might be contemplated on the waters and beds of Sydney and Middle Harbours) - " aids to navigation " " boardwalk " " boat launching ramp " " boat lift" "boat shed " " commercial port facilities " " houseboat " "large marina " "skid " " slipway " 18 Each of the defined terms is employed by SREP 23 but for present purposes only the following definitions need be noted (where each term is expressly referred to in the Table to cl 10 applicable to Zone No W1) - single mooring means an apparatus located on or in the waterway and used for restraining one vessel. marina means a permanent boat storage facility located on the waterway with support facilities on an adjoining area of land or the waterway, and includes any single mooring or multiple mooring managed in association with the facility and in its vicinity but does not include a large marina. large marina means: (a) a boat storage facility, or (b) some other permanent boat storage structure, located on the waterway which contains 30 or more berths (or other storage facilities) and associated support facilities and which may include shops, restaurants, offices and a manager's residence on an adjoining area of land or the waterway. 19 It should also be noted that some terms employed by SREP 23 are not defined by it eg "wharf", "jetty", "pontoon". D. DETERMINATION OF THE PRELIMINARY QUESTIONS 20 In my judgment, the required determination as to whether the Applicant's development application is within the jurisdiction of this Court that is conferred by s 97 of the EP&A Act, does not need to be made via the four related questions formulated by the Applicant in the present case. Indeed, that fourfold formulation is apt to be unwittingly misleading insofar as it concentrates exclusively upon but one component of the overall development proposal, namely the mooring pen component. The reason for this observation lies in the fact that the proper characterisation for planning purposes (in this case for the purposes of SREP 23) of a proposed development must accommodate the whole of the development proposal. Where, as in the present case, the whole of the proposed development, considered from the viewpoint of its proper planning characterisation, may consist of something different from or more than, the sum of its component parts, it is not appropriate to single out for the purpose of characterisation but one component of the overall development proposal. This is especially so in a case such as the present where the great majority of permissible purposes of development requiring development consent within Zone No W1 comprise the conventional innominate planning category "any purpose other than a purpose permissible without consent or a prohibited purpose" where the only possible uncertainty in the task of characterisation concerns the interrelationship or demarcation between purposes of development that are either permissible without consent or permissible only with development consent. 21 Accordingly, although the Respondent is correct to submit that the Applicant's four questions in truth raise but a single question, I would respectfully disagree with the Respondent's formulation of that single question ("whether the proposed mooring pen is development that is permissible with, or without consent"). 22 Rather, the proper formulation of the single question (the answer to which will be determinative of the question of the Court's jurisdiction in this matter) is whether the proposed development is development for a permissible purpose that requires development consent. 23 If that question is answered affirmatively, the Court's jurisdiction to determine (by way of appeal) the Applicant's development application is clearly engaged by the present proceeding. 24 The Respondent's argument against an affirmative answer takes its principal stand upon the provisions of the EP&A Act, s 77 which appears in Division 2 of Part 4 of the Act which is headed "The procedures for development that needs consent". 25 Section 77 states: This Division (a) applies to development that may not be carried out except with development consent but (b) does not apply to complying development 26 The references in s 77 to "development that may not be carried out except with development consent" and "complying development" are references to those expressions as they are employed in s 76A of the EP&A Act subsections (1) and (2) of which are in the following terms: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. 27 In the present case the only relevant environmental planning instrument for the purposes of s 76A(1) is SREP 23 and in particular cl 10 thereof as it applies to Zone No W1, in the terms I have earlier recited. 28 Relevantly, cl 10 of SREP 23 provides that the purposes for which development may be carried out only with development consent in Zone No W1 are: Any purpose other than a purpose included in item 2 or 4. where item 2 states the purposes for which development may be carried out without development consent as follows: Aids to navigation, maintenance dredging, single moorings (other than single moorings that form part of a marina or large marina) and item 4 states the purposes for which development is prohibited as follows: Large marinas 29 Clearly, the purpose of the proposed development, characterised as an overall development (as opposed to characterised according to each of its several component parts) is a purpose "other than a purpose included in item 2 or 4" within the meaning of cl 10(2)(b) of SREP 23. 30 The only possibly relevant purpose that is included in item 2 or 4 is the defined purpose of "single mooring" (defined to mean "an apparatus located on or in the waterway and used for restraining one vessel") occurring in item 2. 31 It is not in contest but that the overall development proposes something more than a "single mooring", (otherwise why did the Respondent's determination grant development consent to the jetty, ramp and pontoon?) even if the proposed mooring pen component of the proposed development falls within the ambit of that definition (a matter upon which the parties were in keen dispute in their mutual focus on the characterisation of that single component of the proposed development). 32 Accordingly, if the proper approach to characterisation is one that characterises the whole of the development proposal, the conclusion is inevitable that the purpose of the proposed development is not a "single mooring". This is because the proposed development, as described in the Applicant's development application, self-evidently involves the erection within Zone No W1 of the jetty, the ramp, the pontoon and the mooring pen as an overall or integrated development (as is clearly depicted in the development application drawings). 33 Moreover, because of the integrated nature of the proposed development, its true nature and character transcends the sum of the characterisations of each of its component parts, and accordingly the proper characterisation of the overall development proposal is that of a private waterfront/waterway facility providing permanent access over the water to and from the permanent mooring place of a private vessel. Clearly, that manner of characterisation exceeds the defined term "single mooring". 34 The Applicant's development application depicting the overall proposed development that was the subject of the Respondent's "determination" in the present case (which determination founds the present proceedings by virtue of the Applicant's dissatisfaction with it - vide s 93) is relevantly a "development application" as that term is defined by the EP&A Act, s 4(1) meaning "an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate". 35 The EP&A Act, s 78A(1) provides that "a person may, subject to the regulations, apply to a consent authority to carry out development". 36 The Environmental Planning and Assessment Regulation 2000, cl 50 prescribes the manner in which a development application is to be made, including the supporting information that is required to be provided (which information includes "a description of the development to be carried out" vide Schedule 1 Part 1 cl 1(b)). 37 These statutory provisions recognise and accommodate (if not mandate) the fact that a development application should, as a general proposition, formulate the proposed development as an entirety rather than in a piecemeal fashion. Indeed, as long ago as 1980, in his judgment in Pioneer Concrete (Queensland) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 Stephen J at 500 described as a question "of quite general importance in the field of town planning - whether an applicant for consent to use land for a particular purpose may make application piecemeal, or must he, on the contrary, apply at the outset for the entirety of the use in question and consequently in respect of the whole of the land devoted to that use", and thereafter proceeded to reason to an affirmative answer to that question. 38 Having concluded that the purpose of the proposed development, characterised as an overall or entire development, relevantly constitutes "development for a purpose permissible with development consent", I do not think that that conclusion should be disturbed on account of the fact that one component of that overall development (ie the mooring pen) if considered in isolation, may fall within the ambit of the definition of "single mooring" contained in SREP 23, with the possible legal consequence that that separate component so considered in isolation, may fall within the category of a purpose of development that is permissible without development consent. 39 In this context, it is important to recognise that the present case does not involve even the possibility of that single component of the overall development being for a "prohibited" purpose of development. 40 The dichotomy between "permissible" and "prohibited" purposes of development is the problem more commonly encountered in disputes concerning the planning characterisation of development: see C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 and Penrith City Council v Waste Management Authority (1990) 71 LGRA 376. 41 Sometimes that same planning dichotomy manifests itself in the case of a development involving more than one purpose (either of the whole development or of different parts of that development) in which case it is possible that a proper planning characterisation of the whole development may be achieved by disregarding a subordinate purpose which is inspired by the dominant purpose: see Foodbarn Pty Ltd v Solicitor General (1975) 31 LGRA 157 - which also recognised as a possible outcome of the task of planning characterisation that "where the whole of the premises is used for two or more purposes none of which subserves the others, it is irrelevant to enquire which of the multiple purposes is dominant" cited with approval by Gibbs CJ in Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 217. 42 But the absence from the present case of even the possibility of a prohibited purpose of development means that the approach to planning characterisation that was adopted and exemplified in the cited cases (and has become firmly established in planning law) need not be resorted to in the present case in the task of characterising the proposed development. In particular where, as in the present case, the only possibility is that a single component of the overall development, if considered in isolation of that overall development, may be characterised as development for a purpose that is permissible without development consent, the preferable approach is to adopt and maintain "an overall development" characterisation which preserves the integrity within the context of the EP&A Act, of (i) the Applicant's development application formulating an overall development proposal; and (ii) the Respondent's requisite planning evaluation of that development application (vide s 79C), without fragmenting either the product of that development application or the process of that planning evaluation. 43 This is more especially so in the present case where that fragmentation has led to the Respondent's bifurcated determination of the Applicant's development application producing the curious, if not anomalous, results of (i) the Respondent's environmental assessment under the EP&A Act, Part 5 to not permit the mooring pen being founded upon the planning criteria stipulated in SREP 23 despite the fact that very same planning instrument declares that such development may be carried out without development consent; and (ii) the Applicant's statutory right of appeal conferred by the EP&A Act, s 97, in respect of the Respondent's determination of the Applicant's development application being apparently curtailed in respect of the mooring pen component, despite it being an essential feature of the overall development proposal. 44 For all of the foregoing reasons, I am of the opinion that the whole of the proposed development as formulated in the Applicant's development application is relevantly "development that may be carried out with development consent" - for the purposes of SREP 23, and the EP&A Act, s 76A(1), s 77 and s 97. 45 This conclusion means that it is not necessary for me to consider the four questions as formulated by the Applicant. Moreover, my conclusion has been arrived at upon the basis that fully accommodates the Respondent's contention that the proposed mooring pen component of the overall proposal development, would, if considered in isolation of the overall development, fall within the ambit of the term "single mooring" as defined by SREP 23 as that term is employed in the Table to cl 10 of SREP as it applies to Zone No W1. E. CONCLUSIONS AND ORDERS 46 Instead of providing answers to the four preliminary questions raised by the Applicant, I would hold that the whole of the proposed development, the subject of the Applicant's development application is relevantly development for a permissible purpose with development consent, and that the Court's function in relation to the pending proceedings pursuant to the EP&A Act, s 97 is to determine the Applicant's development application on the planning merits in respect of the whole of the proposed development and not merely in respect of the portions of it that were determined by the Respondent as consent authority pursuant to the EP&A Act, Part 4. 47 My determination of the preliminary question means that it is not necessary to consider some additional rival arguments concerning the question of any implied repeal effected by SREP 23 of other statutory provisions more concerned with navigational use of the waters of Sydney Harbour and the question of this Court's powers conferred by the LEC Act, s 39(2) in respect of other statutory functions vested in the Respondent in respect of the proposed development. These matters were raised for debate only in the event of the Court determining the jurisdictional fact in favour of the Respondent's contention. 48 Since I have determined the jurisdictional fact in favour of the Applicant's contention these further matters, though the subject of supplementary legal submissions and though important in their own right, do not require adjudication at the present time. 49 Some of the complexities of the interplay between the EP&A Act and statutory maritime/navigation laws administered by the Respondent or the Waterways Authority were discussed in the Court of Appeal's judgment in Aquatic Airways Pty Ltd v Warringah Shire Council (1990) 71 LGRA 10, decided at a time when SREP 23 (or any legislative antecedent) did not exist. The making of SREP 23, including its conferral upon the Waterways Authority of functions as a "consent authority" under the EP&A Act, Part 4 in respect of development of the waters and beds of Sydney and Middle Harbours, would have provided the opportunity for achieving a harmonisation of the operation in a given case such as the present of those separate statutory regimes or at least those parts which were commonly administered by the Waterways Authority. 50 However, it appears from the arguments advanced on behalf of the Respondent that this may not be the case at least in the sense that decisions made by the Waterways Authority under SREP 23 and the EP&A Act may not be harmoniously complemented by decisions taken by the Waterways Authority pursuant to the statutory maritime/navigation regime it administers. Indeed, the Respondent's determination in the present case pursuant to Part 5 of the EP&A Act can only have been effected and mediated via a relevant "approval" function conferred upon it as a "determining authority" by the statutory maritime/navigation regime: see the EP&A Act, s 110 (containing definitions of "activity" and "determining authority") and 111 (imposing the duty of environmental assessment). Yet paradoxically, the Respondent's determination appears, not to have been based upon maritime/navigational considerations relevant to that statutory regime but to have been based upon planning criteria emanating from, and promoted by, SREP 23. 51 For all of the foregoing reasons, I hold that the Court has jurisdiction to determine the Applicant's development application in respect of the entire proposed development in the course of hearing and disposing the pending s 97 appeal.

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