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[2008] NSWLEC 153
Land and Environment Court (NSW)
2008-03-26
Lloyd J
Original judgment source is linked above.
Background 1 HIS HONOUR: Following the delivery of my reserved judgement on 22 January 2008 in which I set out my findings, I stood the matter over for settling the form of final orders: Pittwater Council v Minister for Planning & Anor [2008] NSWLEC 26. The parties disagree on the form of the final orders, including the question of costs. 2 The second respondent, Austral Monsoon Industries Pty Limited, also applies by notice of motion for an order that the judgment be varied. Part 36 r 16 of the Uniform Civil Procedure Rules 2005 enables the court to set aside or vary a judgment or order if the notice of motion for the setting aside or variation of the judgment or order is filed before entry of the judgment or order.
Common grounds 3 In the proceedings in Class 4 of the Court's jurisdiction, the applicant, Pittwater Council, substantially succeeded in its contentions. All parties now agree that it is appropriate to make: (a) a declaration that the Minister's determination of 14 February 2006 was not the determination of a consent authority within the meaning of s 97 of the Environmental Planning and Assessment Act 1979; (b) an order that the Minister's determination of 14 February 2006 be set aside; and (c) that the concurrent Class 1 proceedings are incompetent in that the Court does not have jurisdiction to entertain that appeal.
Issue of effectiveness of the Minister's opinion of 3 May 2007 4 The council seeks a declaration that the Minister's opinion of 3 May 2007 is invalid and of no effect. This is consistent with my finding at pars [56] and [60] of the judgment that the Minister did not form the requisite opinion on 3 May 2007 since it relates to the original development application and not the current (amended) development application upon which Austral now relies. 5 Austral seeks a variation of the judgment so as to reflect the legal consequences of the determination that the concurrent proceedings in Class 1 of the Court's jurisdiction are incompetent. As noted in par [3] above, all parties agree that this is a clear consequence of my finding. Austral also seeks a declaration that the Minister's opinion of 3 May 2007 is valid with respect to the development as proposed in the original development application lodged with the Minister on 10 June 2005, and a further declaration that the Minister is the consent authority for that development application which remains in its unamended form before him for determination. 6 The difficulty with the declaration sought by Austral is, as observed by the Minister, that it expands the judgment beyond its express confines. Moreover, as conceded by Austral, no submissions were made by any party in the proceedings as to whether the Minister was required to form an opinion about the current (amended) development application. 7 In my view the form of final orders made below correctly describes the finding in the judgment. The Minister's opinion of 3 May 2007 could only relate to the original development application as that was the only application that was before him. 8 Austral also seeks an amendment to par [33] of the previous judgment, which is said to be inconsistent with the factual findings in par [6] as to the number of moorings. The amendment sought is, however, inconsequential and does not affect the finding made in par [34], namely the Minister's opinion of 3 May 2007 relates to the original development application and not to the current (amended) development application for a development of reduced scale which became the subject of the proceedings in Class 1 of the Court's jurisdiction.
Costs 9 The parties have expressly asked me to reserve the question of costs pending the finalisation of these declarations and orders. However, the council has been substantially successful and has been fully justified in bringing these proceedings. Prima facie, there would seem to be no reason why it should not receive an order for the whole of its costs, but an opportunity is given to the respondents to make submission to the contrary, if they wish. 10 The council also seek its costs of the concurrent proceedings in Class 1 of the Court's jurisdiction. The presumptive rule arising from r 3.7(2) of the Land and Environment Court Rules 2007 is that no order as to the whole or any part of the costs will be made in such proceedings unless the Court considers that the making of such an order is fair and reasonable in the circumstances. 11 Rule 3.7(3) provides examples of circumstances in which the presumptive rule against any order for costs might be displaced, but the examples are neither definitive nor exhaustive. One of the circumstances which the Court may accept as displacing the presumptive rule is where the proceedings have been determined on a critical issue, which was preliminary to the merit evaluation. 12 The council has ultimately succeeded in its contention that the merit appeal is not within the jurisdiction of the Court. Absent the council's participation, the issue of jurisdiction would not have been raised, neither Austral nor the Minister recognising the problem. Furthermore, the council itself actively participated in all procedural steps, frequently consenting to making directions and orders, up until the time when the council raised its objection as to competency of the appeal. 13 The relevant facts are as follows. On 2 February 2007, Austral commenced an appeal in Class 1 of the Court's jurisdiction against the Minister's determination of 14 February 2006 to refuse its development application for the upgrade and expansion of the Careel Bay Marina. On 23 March 2007, the Court granted the council leave to be heard in that appeal as if it were a party to the proceedings. On 4 May 2007, the Court by consent of the council and the Minister, granted Austral leave to amend the development application the subject of the appeal. On 2 October 2007, the council, having received the briefing note and accompanying plan upon which the Minister formed his opinion of 3 May 2007, raised the objection to competency of the appeal. On 26 October 2007, the council commenced these proceedings, alleging inter alia that the Court does not have jurisdiction to determine the concurrent proceedings in Class 1 of the Court's jurisdiction. 14 Austral says that it is in effect the innocent party in that it made a development application to the alleged consent authority and it has acted in good faith at all times. Austral, however, opposed legal contentions of the council and argued that the Minister was, in fact, the consent authority and that the Court had jurisdiction to deal with the merit evaluation of its development application. 15 In my opinion the costs of the council are adequately met by a costs order in the present proceedings. The council's legal contentions in the planning appeal were not separate or distinct from the relief it successfully sought under the different head of the Court's jurisdiction - they involve mutually relevant facts and akin law principles. Both proceedings on the council's part essentially involve challenging the validity of the same administrative decision. It would not be fair or reasonable to also award costs in favour of the council in the planning appeal where the ultimate relief was achieved as a consequence of the judicial review proceedings and in circumstances where it actively participated in those proceedings until it raised the question of jurisdiction. 16 Moreover, it is the fundamental responsibility of a party to a litigation to bring an application raising the question of jurisdiction as soon as it becomes aware that the court lacks jurisdiction to hear and determine a matter. 17 I note that no order for costs is sought by the council against the Minister in the planning appeal. There will, accordingly, be no order for costs in the planning appeal.
Orders 18 I make the following declarations and orders:
(1) Declares that the determination of the Minister for Planning made on 14 February 2006 was not " the determination of a consent authority " within the meaning of s 97 of the Environmental Planning and Assessment Act 1979 and is invalid.
(2) Orders that the determination of the Minister made on 14 February 2006 be set aside.
(3) Declares that the opinion of the Minister as expressed in the " Record of Minister's opinion for the purposes of clause 6 of the State Environmental Planning Policy (State Significant Development) 2005 ", made by the Minister and dated 3 May 2007 is of no effect on the development application as amended.
(4) Declares that Land and Environment Court proceedings No. 10076 of 2007 are incompetent in that the Court does not have jurisdiction to entertain the appeal.
(5) Directs that the respondents are to file and serve written submissions on the question of the costs of the proceedings in Class 4 of the Court's jurisdiction within seven (7) days and the applicant may file written submissions in response within further seven (7) days. If no submissions are filed there will be an order that the respondents pay the applicant's costs.
(6) Orders that there will be no order for costs in the proceedings in Class 1 of the Court's jurisdiction. I hereby certify that the preceding 18 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.
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.
CITATION : Pittwater Council v Minister for Planning & Anor; Austral Monsoon Industries Pty Limited v Minister for Planning (No. 2) [2008] NSWLEC 153
CASES CITED: Pittwater Council v Minister for Planning & Anor [2008] NSWLEC 26