Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources - [2004] NSWLEC 687 - NSWLEC 2004 case summary — Zoe

NSWNSWLEC

Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources

[2004] NSWLEC 687

Land and Environment Court (NSW)|2004-11-25|Before: Cowdroy J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2004-11-25

Before

Cowdroy J

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

CITATION : Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687 APPLICANT PARTIES : Patrick Autocare Pty Limited (ACN 004 497 607) RESPONDENT Minister for Infrastructure, Plannning and Natural Resources FILE NUMBER(S) : 40821 of 2004 CORAM: Cowdroy J KEY ISSUES: Injunctions and Declarations :- consent granted to part of a development application - state significant development - whether a determination has been made. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 76A(7), s 80, s 119. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Avon Downs Proprietary Limited v The Federal Commissioner of Taxation (1949) 78 CLR 353; Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734; Re Federal Commissioner of Taxation: Ex parte Australena Investments Pty Ltd and Ors (1983) 50 ALR 577; CASES CITED: Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33; The King v The War Pensions Entitlement Appeal Tribunal and Anor; Ex parte Bott (1933) 50 CLR 228; Thornton v Repatriation Commission (1981) 35 ALR 485; Transport Action Group Against Motorways Inc v Roads and Traffic Authority and Anor (1999) 46 NSWLR 598; Vanmeld Pty Ltd v Fairfield City Council and Anor (1999) 46 NSWLR 78. DATES OF HEARING: 22/11/2004; 24/11/2004 EX TEMPORE 11/25/2004 JUDGMENT DATE :

[2]

[16]

Relevant Statutory Provisions 11 Section 80 of the Act relevantly provides:- 80 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. … (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. (4) Staged development A development consent may be granted: (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. (5) A development consent referred to in subsection (4) may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent. (6) Restrictions on determination of development applications where Commission of Inquiry is held concerning environmental aspects of proposed development A consent authority that has received notice that the Minister has directed that an inquiry be held, in accordance with section 119, with respect to the environmental aspects of proposed development or part of any such proposed development the subject of a development application: (a) must not determine the development application in so far as it relates to proposed designated development, and (b) must not determine the development application in so far as it relates to development that is not designated development until: (i) the inquiry has been held, and (ii) the consent authority has considered the findings and recommendations of the Commission of Inquiry and any comments made by the Minister that accompanied those findings and recommendations when they were forwarded to the consent authority. (7) If the Minister has directed that an inquiry be held by a Commission of Inquiry in relation to any proposed designated development the subject of a development application, the Minister is to determine the application after the inquiry has been held and the Minister has considered the findings and recommendations of the Commission of Inquiry. …

[25]

24 In Vanmeld Pty Ltd v Fairfield City Council and Anor (1999) 46 NSWLR 78 Powell JA at pp114-115 said:- …if, as seems now to be the accepted approach, the duty of an administrative body, in an appropriate case, to accord procedural fairness to a person, or body, who, or which, may be affected by the exercise by it of a power vested in it, is one imposed by the common law, and not one arising out of the interpretation of the relevant enabling statute, it seems to me that in a case in which judicial review is sought on the grounds of a denial of procedural fairness, one's task is, first, to determine whether the terms of the relevant statute are such as to exclude, or to restrict - and, if so, to what extent-the obligation to accord procedural fairness; 25 The respondent was empowered to grant a consent or consents in accordance with s 80(4) and s 80(5) of the Act. Such provisions do not suggest that the applicant was entitled to hold any legitimate expectation that it would be consulted regarding the manner in which the respondent would exercise the power bestowed upon him by such provisions. The provisions empowered the consent authority to decide, of its own volition, the part or aspects of the development to which it would grant consent. In consequence of the statutory mandate provided to the respondent no circumstances exist which give rise to a legitimate expectation as claimed. It follows that the respondent was not required to provide the applicant an opportunity to make representations regarding whether a part of the development only should be granted consent (see also Transport Action Group Against Motorways Inc v Roads and Traffic Authority and Anor (1999) 46 NSWLR 598 per Mason P at pp 622-625 and Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at p 51). 26 It was also within the respondent's power to determine which part or aspect of the development was selected for consent. There is no evidence that the approval of Stage 1 and Stage 1A would render the development unviable, and even if this were the case the respondent was empowered to grant such consents. The result may be inconvenient for the applicant, but this is not a ground either of invalidity of the exercise of the power vested in the respondent nor in this circumstance does it found a ground of unreasonableness rendering the consents invalid.