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

LEGAL REPRESENTATIVES: RESPONDENT Mr B. Walker SC Mr R. Lancaster (Barrister) 22/11/2004 Mr A. Galasso (Barrister) 24/11/2004

SOLICITORS Department of Infrastructure, Planning and Natural Resources

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40821 of 2004 PATRICK AUTOCARE PTY LIMITED (ACN 004 497 607) v MINISTER FOR INFRASTRUCTURE, PLANNING AND NATURAL RESOURCES

Facts 1 The applicant seeks declarations that the respondent is the consent authority in respect of development application DA 357-10-2002-i ("the application") made in respect of land being lots 132 - 145 in deposited plan ("DP") 804526, lot 113 in DP 800543 and lot 205 in DP 787308 being situated at Broadhurst Road, Ingleburn ("the land"); that the determination by the respondent on 24 September 2004 of the application is invalid; and for a consequential declaration in the nature of mandamus requiring the respondent to determine the application according to law. 2 The application was made on behalf of the applicant in respect of an intermodal cargo facility capable of handling the delivery by rail from Melbourne of vehicles manufactured in Victoria and a container operation involving the consolidation and distribution for the rail transport of international export and import shipping containers between the Campbelltown district and Port Botany.

3 The application proposed that the development would be conducted in three stages being as follows:- Stage One - for commencement immediately s Construction of the siding with two lines for the car operation s Construction of temporary crossing over Bow Bowing Creek s Installation of Security fencing and landscaping Stage Two - for commencement in the 12-24 months following s Construction of two lines for the container operation s Installation of two gantry cranes and/or reach stacker operation s Construction of heavy duty pavements and truck entrances Stage Three - for commencement in the 24-36 months following s Construction of the container wash area and workshop

4 The application was made on 24 December 2001 to Campbelltown City Council ("the council") which exhibited the application including the statement of environmental effects from 9 January 2002 until 20 February 2002. However by letter dated 12 April 2002 the Department of Planning (now known as the Department of Infrastructure, Planning and Natural Resources, ("the department")) notified the council that the respondent considered the application as being one of State significance within s 76A(7) of the Environmental Planning and Assessment Act 1979 ("the Act") and accordingly requested that the application be forwarded to the department. On 15 May 2002 the council complied with such request. 5 On 20 November 2002 the application was amended, the details of which are not relevant for the present purposes. By letter dated 6 May 2003 the applicant requested that the respondent determine the application. On 27 June 2003 the respondent directed that a Commission of Inquiry be held pursuant to s 119 of the Act into all environmental aspects of the proposed development.

6 A report of Commissioner Cleland dated December 2003 was published on 21 May 2004. On 23 June 2004 the applicant's solicitors requested the respondent to determine the application.

7 The applicant commenced these proceedings on 12 July 2004 and on 24 September 2004 the respondent issued a notice of "Determination" ("the first consent") in respect of the application. The first consent noted in Schedule 1 thereto that the proposed development was to be carried out in three stages and granted consent, pursuant to s 80(4) and s 80(5) of the Act subject to the conditions as set out in Schedule 2 as follows:- Stage 1 1.1 Under Section 80(4) of the Act, this consent is issued for the development (DA 357-10-2002-i) except for Stages 2 and 3 (that is, consent is granted only for Stage 1).

Stages 2 and 3 1.2 Under Section 80(5) of the Act, Stages 2 and 3 of the development must be the subject of another development consent. Any such consent will be subject to the Minister considering a report from the Department addressing the strategic context of the Stage 2 and 3 operations in relation to the Government's preferred options for container movements and intermodal terminal locations.

8 By letter dated 27 September 2004 the department wrote to the applicant relevantly as follows:- I am pleased to advise that the Minister for Infrastructure and Planning has approved Stage 1 of the proposal under Section 80(4)(b) of the Environmental Planning and Assessment Act 1979 (the Act) Stage 1 consists of the construction of two 400 metre long rail sidings for the vehicle transfer operation, acoustic walls and landscaping and installation of security fencing to complement existing operations at Stennet Street.

Consideration of Stages 2 and 3 may only proceed once the Government's preferred options for container movements and intermodal terminal locations are determined. While Section 80(5) of the Act provides that determination of Stages 2 and 3 must be the subject of another development consent, a fresh application would not be required. 9 On 23 November 2004 the respondent issued a "Notice of Grant of Development Consent" ("the second consent" which together with the first consent will be referred to as "the consents") stated to be pursuant to s 80(4)(c) of the Act. Such notice was issued in respect of the following:- Part or Aspect of the Stage 1A being the construction of Proposed Development: access driveways, internal access roads and car parks, and the construction and operation of the site office. 10 Under Schedule 2 to the second consent the following is included:- 1. STAGED DEVELOPMENT Stage 1A 1.1 Under Section 80 (4) (c) of the Environmental Planning and Assessment Act 1979, this consent is issued for the following development: s Access driveways, internal access roads and car parks; and s Site office

Relationship with Stage 1 Consent 1.2 The construction and operation of the approved development must be carried out in conjunction with the development consent dated 24 September 2004 (DA-357-10-2002-i).

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. …

12 The applicant submits that a determination has not been made in compliance with the respondent's functions and duties under s 80 of the Act and in consequence the consents are invalid. 13 In its amended points of claim filed 23 November 2004 the applicant claims that the respondent has left undetermined a part of the application which the respondent is not entitled to do pursuant to s 80(4) of the Act. The applicant submits that any part of the application not approved must be expressly determined by refusal.

14 The applicant claims in the event that the respondent had power to grant the consents pursuant to s 80(4) of the Act, the respondent made one or more of the following jurisdictional errors namely that the respondent denied the applicant procedural fairness by failing to afford it an opportunity to address the question whether the consent should be by stages, and if so, the sequence of any stages; the respondent failed to take into account a relevant consideration ("the relevant consideration") that Stage 1 was not reasonably capable of being developed in isolation without approval for development of roads, offices and associated amenities; the respondent acted unreasonably in proposing to defer consideration of Stages 2 and 3 indefinitely having had the application before him since April 2002 and further in the circumstance that no report existed relating to the government's "preferred options" referred to in cl 1.2 of Schedule 2 to the first consent. Additionally the applicant submits that the failure to take into account the relevant consideration leads to the result that no reasonable person would act upon the consents in the absence of any determination simultaneously being made in respect of Stages 2 and 3. 15 Lastly the applicant submits that the respondent inordinately delayed the making of a determination. The applicant does not accept that the respondent has yet made a valid determination. Accordingly such delay is unreasonable and entitles the applicant to seek mandamus in accordance with the observations of Fisher J in Thornton v Repatriation Commission (1981) 35 ALR 485 at p 490, as referred to by Murphy J in Re Federal Commissioner of Taxation: Ex parte Australena Investments Pty Ltd and Ors (1983) 50 ALR 577 at p 578.

16 The respondent submits that the consents are in conformity with the express provisions contained in s 80(4) and s 80(5) of the Act. The respondent by virtue of such provisions is entitled to grant consent or refuse consent. If consent is granted to a part of a development application pursuant to s 80(4) of the Act, s 80(5) of the Act operates to permit another grant of consent in respect of the remaining portion of the development application. 17 In respect of the applicant's submissions regarding jurisdictional error, the respondent submits that he was not required to afford the applicant procedural fairness in the manner claimed and that the application was considered by the respondent as provided by the provisions of the Act; and that the second consent issued on 23 November 2004 satisfies the relevant consideration claimed by the applicant. The respondent also submits that he did not act unreasonably in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) as he has made a determination pursuant to the provisions of the Act. Whether a person would act upon a determination is not a relevant consideration.

18 The respondent submits that there is no unreasonable delay taking into consideration the current development of a strategy known as the Metropolitan Intermodal Freight Strategy and other strategic planning issues. The respondent also submits that it was not unreasonable for the respondent to await the outcome of the strategies before proceeding to grant consent to those aspects of the application which might critically impact upon future planning. Findings

Legislative provisions 19 Section 80 of the Act provides a structured regime relevant for the consent of development applications. Section 80(1) of the Act requires a consent authority to determine a development application by granting consent unconditionally or subject to conditions, or to refuse consent. Section 80(4) of the Act specifically provides for development to be approved by staged development and authorises a consent to issue in respect of a part thereof. 20 Whether the part for which approval is not granted is specifically identified as separate in the application is immaterial. The subsection does not refer to the "determination" of a development application, but refers to the grant of "development consent". When granting consent pursuant to s 80(4) of the Act the consent authority is not restricted in its choice of any part of the application for which consent is granted.

21 Section 80(5) of the Act empowers the consent authority to require that another part of the development be the subject of another development consent. Section 80(5) of the Act specifically provides for a consent authority to issue a subsequent consent or consents as a consequence of a condition in a s 80(4) consent.

22 Contrary to the submissions made by the applicant the regime provided by s 80(4) and s 80(5) of the Act does not require the consent authority to refuse any part or aspect of the development for which consent is not granted. These subsections are different in their operation and effect to s 80(1) of the Act. Accordingly the submissions of the applicant based on Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734 have no application. Similarly the authorities relied upon by the applicant relating to a deferral of a development consent have no application.

23 It follows that the respondent was empowered to issue the consents in the exercise of the power provided by s 80(4) and s 80(5) of the Act. With respect to the second consent the respondent was entitled to select any portion of the proposed development for approval and to decline to grant approval to the remainder. It was open to the respondent to grant the first consent and the second consent without refusing consent to the remainder but instead leaving the remainder for further consideration and possible consent. Alleged procedural error

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.

27 The applicant claimed that the consents were unreasonable upon numerous grounds, principally relating to the staging of the development, the non-existence of planning strategy, and of the alleged inordinate delay by the respondent. The applicant relied upon the fact that submissions made before the Commission of Inquiry by the department were supportive of the development and did not raise any objection to the development.

28 Section 80(7) of the Act imposes a duty upon the respondent and vests in him the power to determine the application following the Commission of Inquiry and after consideration of the recommendations of the Commission of Inquiry. Accordingly the respondent is not constrained by the submissions made by the department nor bound to accept the recommendations of the Commission of Inquiry.

29 The evidence establishes that advice was furnished to the respondent prior to the first consent dated 29 September 2004 which specifically drew the respondent's attention to the strategic planning issues and noted that there was continuing planning for intermodal transport. The advice concluded that in the public interest consent should not be granted in respect of the whole of the development until such time as the government had formulated a strategy. Whilst the applicant claimed that no report existed when the respondent made the first consent, such advice and the affidavit of Sam Gabriel Haddad sworn 23 November 2004 establishes that a strategy was and is being developed and that a draft report and recommendations are currently before Cabinet for consideration.

30 Based upon such evidence, the Court rejects the submissions that the conduct of the second respondent was unreasonable and that there was inordinate delay in the decision-making process.

31 As a subsidiary issue it is to be noted that the respondent provided an undertaking to the Court that the application would be determined within 21 days. The applicant claims that the respondent breached the undertaking because of the failure to make a determination of the application within the requisite period. The Court rejects such submission in view of its finding that the first consent constituted a valid consent made pursuant to s 80(4) of the Act. Contrary to the Court's finding, had the first consent been held invalid, the respondent would have discharged his obligation to the Court by making a decision even if it were subsequently held to be invalid. Conclusions

32 The applicant referred the Court to numerous authorities concerning the exercise of statutory power. The Court finds that the applicable statutory provisions prevail and that any order for mandamus directing the respondent to determine the application according to law would achieve no different result: see The King v The War Pensions Entitlement Appeal Tribunal and Anor; Ex parte Bott (1933) 50 CLR 228 at p 242. The respondent, in granting the consents has acted in accordance with the statutory provisions contained in s 80(4) and s 80(5) of the Act. Further no basis exists to vitiate the consents on the ground of unreasonableness see: Avon Downs Proprietary Limited v The Federal Commissioner of Taxation (1949) 78 CLR 353 at p 360. Costs 33 The Court has not heard argument relating to costs but prima facie the usual rule should apply namely that the unsuccessful party be ordered to pay the costs of the successful party. In the event that the applicant wishes to submit that a different order should be made, the Court will entertain such submissions.

Orders 34 The Court makes the following orders:-

1. ORDER that the proceedings be dismissed;
2. ORDER that the applicant pay the respondent's costs unless within 21 days of today a notice of motion is filed to seek a different order;

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.