195 LGERA 182
Tepko Pty Ltd v Water Board [2001] HCA 19
206 CLR 1
820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8
Source
Original judgment source is linked above.
Catchwords
195 LGERA 182
Tepko Pty Ltd v Water Board [2001] HCA 19206 CLR 1
820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8
Judgment (3 paragraphs)
[1]
Solicitors:
King and Wood Mallesons (Applicant, Respondent on the Motion)
Sparke Helmore Lawyers (Respondent, Applicant on the Motion)
File Number(s): 10486 of 2014, 10487 of 2014 and 10488 of 2014
[2]
Judgment
In three separate proceedings, Penrith Lakes Development Corporation Limited (Penrith Lakes) has appealed to the Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) following the refusal by Penrith City Council (the Council) of three development applications lodged by Penrith Lakes. Each of the three development applications sought development consent for the subdivision of land, with two of those applications also involving substantial road and drainage works. The appeals have been fixed for hearing for six days commencing on 4 May next.
In each proceeding, the Council applies by notice of motion for an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the determination of a separate question prior to proceeding with the hearing fixed to commence in May next. That question, as ultimately framed in the Council's written submissions before me, is in the following terms:
"Whether the proposed development the subject of the development application is permissible by reason of being:
'development for the purposes of implementing the Penrith Lakes Scheme' within cl 8(1) of the SEPP;
development 'pending the completion of the Penrith Lakes Scheme in, and the use as a public recreational system of, that part of the land' within cl 9 of the SEPP; or
development 'for the purposes of the construction or widening of roads' within cl 10(1) of the SEPP?"
The proposed question is common to all three proceedings.
Separate and preliminary determination of the question posed by the Council is opposed by Penrith Lakes.
In order to give context to the competing submissions of the parties, it is necessary briefly to describe each of the three development applications and identify the critical provisions of State Environmental Planning Policy (Penrith Lakes Scheme) 1989 (SEPP 1989), being the planning instrument upon which the Council's proposed separate questions is founded. Each of the three development applications made by Penrith Lakes relate to land to which SEPP 1989 applies.
The development application that is the subject of proceedings 14/10486 seeks development consent for a "proposed 2ha subdivision of 138 lots and associated road and drainage works". The estimated cost of the proposed road and drainage works is said to be $6,552,700.
That development application is for the subdivision of a superlot that had been created following consent by the Council on 7 July 2014 of an application made by Penrith Lakes for the consolidation of 211 existing lots so as to create 23 superlots as well as the construction of a car park. The present development application involves the subdivision of the newly created superlot 4.
The subdivision proposed in proceeding 14/10487 is for seven lots, ranging in area between 585m² and 1733m², with a residue lot of 3886m². Earthworks, drainage works and road works are proposed to be undertaken with an estimated cost of $272,000.
A nine lot subdivision is the subject of the development application in proceedings 14/10488. Lot sizes range between 2.06ha and 5.17ha. Access to each lot is provided by an existing public road so that no road works are necessary or proposed as part of the development application.
The parties accept that for the purpose of considering the present application, the primary planning instrument controlling development on land to which each development application relates is SEPP 1989. Although other specific planning instruments are identified in the material accompanying each development application, cl 4 of SEPP 1989 requires that its provisions prevail to the extent of inconsistency between it and any other environmental planning instrument.
Clause 2(1) of SEPP 1989 identifies the aims and objectives of the Policy as being "to permit the implementation of the Penrith Lakes Scheme." Subclause 2(2) then provides:
"(2) Without limiting the generality of subclause (1), the particular aims of this Policy are:
to provide a development control process establishing environmental and technical matters which must be taken into account in implementing the Penrith Lakes Scheme in order to protect the environment,
to identify and protect items of the environmental heritage,
to identify land which may be rezoned for urban purposes, and
to permit interim development in order to prevent the sterilisation of land to which this Policy applies during implementation of the Penrith Lakes Scheme."
The definition of the "Penrith Lakes Scheme" is defined by reference to cl 5 to mean the scheme described in Schedule 1. That Schedule provides as follows:
"The Penrith Lakes Scheme is the creation of a regional recreational lake system as shown on the structure plan for the benefit of the public as a result of:
the staged optimum extraction of sand and gravel reserves,
the staged rehabilitation, reconstruction and landscaping of the land, and
the staged formation of a series of interconnected lakes,
and includes the identification of land for possible future urban purposes as a result of the work referred to in paragraphs (a) and (b)."
Clause 7 of SEPP 1989 proscribes the carrying out of development on land to which the instrument applies except development "authorised by or under this Policy." Both parties accept that in order to overcome the proscription provided by cl 7, any proposed development must be authorised by any one or more of cll 8, 9 or 10 of the Policy.
The provisions of cl 8 are lengthy and detailed. As a consequence I do not set them out in full. However, some of the provisions of that clause need to be noticed for the purpose of addressing the parties' submissions. Subclause (1) authorises, with development consent, development "for the purposes of implementing the Penrith Lakes Scheme." Subclause (2) relevantly provides:
"(2) The consent authority shall grant consent to development to which this clause applies unless:
the consent authority is of the opinion that the development the subject of the application:
does not fully implement the Penrith Lakes Scheme on the land to which the application for development relates,
will not ensure the satisfactory implementation of the Penrith Lakes Scheme, or
is not generally in accordance with the structure plan, …".
Subclause (3) of cl 8 makes provision for the content of the statement of environmental effects that must accompany an application for development consent. Subclause (4) contains a detailed list of matters that must be considered by the consent authority when determining an application for development consent on land to which the Policy applies.
Clause 9 of SEPP 1989 is important to be noticed. It provides:
"9 Interim development
Development may be carried out on any part of the land to which this Policy applies:
for the purpose of agriculture, without the necessity for development consent, or
for any other purpose, with development consent, if the consent authority is satisfied that the carrying out of development for that purpose will not adversely affect the implementation of the Penrith Lakes Scheme,
pending the completion of the Penrith Lakes Scheme in, and the use as a public recreational lakes system of, that part of the land."
Clause 10(1) authorises, with consent, development "for the purposes of the construction or widening of roads". By subclause (3), when determining any such application the consent authority is required to take into consideration implementation of the Penrith Lakes Scheme and the structure plan.
The structure plan referred to in SEPP 1989 is defined by reference to cl 5 as being a map which has been tendered before me. That map identifies not only the land to which the Policy applies but shows within it an outline of lakes apparently intended to be created as a result of implementing the Policy. The approximate area of each lake is indicated on the map. Those lake areas include the Sydney International Regatta Centre. Outside those areas delineated as lakes there are two areas in which the words "Future Urban Area" appear. The Council accepts that each of the three development applications that is the subject of the present appeals is located within the areas so indicated.
The present appeals by Penrith Lakes were filed with the Court on 7 July 2014. Thereafter, the parties consented to the proceedings being referred for conciliation under s 34 of the Land and Environment Court Act 1979. That process obviously took some time as it was not until 20 November 2014 that the s 34 conference was formally terminated (cf s 34(4)). While the process is said by the parties to have been of assistance in refining some issues, a number of issues, apart from the issue of permissibility, remain. These include issues of strategic planning, flooding, site contamination and remediation, stormwater disposal and waste water disposal.
The proceedings came before the Registrar on 16 December last when the hearing dates in May next were fixed. Directions for preparation of the matter for hearing were made at that time including directions for the filing of revised statements of facts and issues on the part of the Council and for the preparation of expert evidence. The present notices of motion were also filed on behalf of the Council on 16 December last.
The Council contends that the question it agitates in each matter, directed as it is to the question of permissibility of each development application, is fundamental and appropriate for determination as a preliminary and separate question. The estimated cost to it, should a 6 day hearing on all issues, including merit issues, be required, is said to approximate $250,000, a significant part of which will be saved if the permissibility question is first decided in favour of the Council.
Moreover, the question, as framed in each proceeding, is potentially dispositive of the proceedings. According to the submission, the issue raised by each question can be determined by reference to the documents comprising or accompanying the development application lodged by Penrith Lakes with the Council and by applying the provisions of SEPP 1989 to the development application as understood by reference to those documents. Ordinary cannons of statutory construction will govern the manner in which the provisions of the planning instrument are so applied. Such a hearing, so the submission continues, should involve no more than one day.
In summarising the submissions it would make on the substantive question, the Council first contends that the provisions of cl 8(1) of SEPP 1989 are not engaged. None of the proposed developments seek to implement the purpose of the Penrith Lakes Scheme as that Scheme is defined in Sch 1, as the subdivision of land and associated works do not involve the "identification of land for possible future urban purposes".
Next it submits that cl 9 is not engaged because none of the development applications involve development "pending the completion of the Penrith Lakes Scheme in, and the use as a public recreational system of, that part of the land". On its proper construction, so it is contended, cl 9 permits only interim development being development that will cease once the Penrith Lakes Scheme is completed.
Finally, it is submitted that the development identified in any one of the three development applications made by Penrith Lakes could not be described as being "for the purposes of the construction or widening of roads" within the meaning of cl 10 of SEPP 1989. At best, proposed roads and earthworks are ancillary to subdivision intended for future urban use.
For its part, Penrith Lakes submits that the issue of permissibility under SEPP 1989 is dependent upon the resolution of disputed questions of fact and the assessment of evidence. In seeking to explain each development and its impact particularly as it relates to the provisions of SEPP 1989, Penrith Lakes is not confined to the material forming part of or accompanying its development application. Consistent with the Court's practice and, particularly the directions made by the Registrar in the proceedings, it is entitled to rely upon the totality of the evidence that it proposes to call.
The necessity for further evidence to be considered and weighed in order to determine the question of permissibility essentially informs the response of Penrith Lakes to the submissions made by the Council as to the manner in which the latter has foreshadowed it would argue its case founded upon cll 8,9 and 10 of SEPP 1989. Penrith Lakes submits that cl 8(1) of the Policy cannot be interpreted in isolation from subclauses (2) and (4). Subclause (2) has the consequence, so it is submitted, that an opinion must be formed by the consent authority as to whether the development in contemplation has the purpose of implementing the Penrith Lakes Scheme. Of necessity, the formation of that opinion necessitates the consideration of evidence addressing implementation of the Scheme and the manner in which the development in contemplation is argued so to do. Furthermore, cl 8(2)(a) at least leaves open for argument whether a development proposal that "does not fully implement" the Scheme may nonetheless be the subject of exercise of discretion to grant development consent. In addition, subclause (4) identifies a number of matters to which consideration must be given when determining "an application to carry out development to implement the Penrith Lakes Scheme", being considerations that of necessity may be the subject of evidence that is not necessarily either implicit or explicit in the material lodged with the development application.
Penrith Lakes also relies upon cl 9 of SEPP 1989 as an independent source of power for the grant of development consent. The exercise of that power, so it is submitted, necessarily involves consideration of evidence that is not the subject of agreement between the parties. It submits that as cl 9(b) authorises the carrying out of development "for any other purpose, with development consent" provided certain matters are satisfied, evidence upon those matters that must be the subject of satisfaction, is evidence that it is entitled to lead. That evidence would include evidence as to whether the proposed development would "adversely affect the implementation of the Penrith Lakes Scheme" as well as the effect if any upon completion of that Scheme "in, and the use as a public recreational lake system of, that part of the land".
In so summarising the submissions of Penrith Lakes, I do not pretend to be exhaustive of those made either in writing or orally before me.
The principles to be applied in applications of the present kind are not in issue. They have been stated in a number of decisions of this Court and succinctly summarised by Biscoe J in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; 195 LGERA 170 at [10]. Those same principles were also considered by the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 particularly by Ward JA at [87]-[99]).
As all the authorities make clear, ordinarily it is appropriate that all issues in proceedings be disposed of at the one time. As was observed by Kirby and Callanan JJ in Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1 at [168]:
"The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap."
There can be no doubt that the question of permissibility is fundamental to the determination of the present appeals. However, the facts upon which that question is to be determined are not agreed. Nor are they clear or readily ascertainable. As Biscoe J observed in Cawdor at [10]:
"where the facts upon which decision depends are contentious, confidence in the utility of the separate question process may be less likely."
Essentially for reasons advanced by Penrith Lakes and earlier summarised by me, I do not consider that it is appropriate to order the hearing of the separate question advanced by the Council. In order to determine the question, as applied to each proceeding, evidence will be necessary with the possibility of competing evidence, including expert evidence, that will require evaluation. That evidence is likely to overlap with evidence that is also directed to a strategic planning issue, being one of the merit issues raised by the Council's statement of contentions.
That position is, in turn, important when one has regard to the provisions of SEPP 1989, particularly cll 8 and 9 which, according to the researches of the parties, have not previously required judicial consideration. The necessity to make evaluative judgments because "satisfaction" on the part of the consent authority, in whose position the Court acts, renders the preliminary determination of permissibility inappropriate in the circumstances.
Although not fundamental to my determination, there are two further matters to which I have regard. First, the hearing on all issues had been fixed by the Registrar when the present notices of motion were filed. As a consequence, it must be assumed that costs have already been incurred in preparation for a hearing on all issues, particularly having regard to the s 34 process that was undertaken before the proceedings were fixed for hearing and which must inevitably have involved consideration of additional issues.
Second, I do not overlook the fact that the Council did consent to the subdivision of land in 2014, being the land that is the subject of proceedings 14/10486. No explanation is offered in the evidence before me as to the basis upon which that consent was given.
Accordingly, the Council's Notices of Motion will be dismissed. The orders that I make are:
1. In each matter the Council's notice of motion dated 16 December 2014 is dismissed.
[3]
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Decision last updated: 16 February 2015