Platform Project Services Pty Ltd v Minister for Planning

Land and Environment Court (NSW)|2017-08-08|Before: Pain J

SOLICITORS: McCullough Robertson (First and Second Applicant) Department of Planning and Environment (First Respondent) Pikes & Verekers (Second Respondent) File Number(s): 17/157679

Judicial review of decision not to assess modification application

These proceedings concern a proposed redevelopment of the Nine Network Australian campus located at 6-30 Artarmon Road Willoughby (the Land). The Land has the benefit of a Concept Plan Approval (MP10_0198) for a residential development and small-scale non-residential uses incorporating up to 400 dwellings which was granted on 23 December 2014 by the Planning Assessment Commission (PAC).
The First Applicant, Platform Project Services Pty Ltd, lodged an application on behalf of the Second Applicant, LEPC 9 Pty Ltd, the owner of the Land, to modify the Concept Plan Approval with the Department of Planning (the Department). The Department acting on behalf of the Minister for Planning (the Minister) has taken the position that it cannot determine the modification application without the consent of Willoughby City Council (the Council) on the basis this is required by cl 8F(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). This position was expressed in a letter to the First Applicant dated 4 May 2017 and is the decision under review in these proceedings. The Council has refused to provide landowner's consent for MOD 2.

Environmental Planning and Assessment Act 1979

The Concept Plan was approved under the now repealed Part 3A of the Environmental Planning and Assessment Act 1979 (EPA Act). The relevant provisions of Part 3A which still apply to this development are as follows: Part 3A Major infrastructure and other projects Division 1 Preliminary 75A Definitions In this Part: … project means development that is declared under section 75B to be a project to which this Part applies. proponent of a project, means the person proposing to carry out development comprising all or any part of the project, and includes any person certified by the Minister to be the proponent. ... 75B Projects to which Part applies (1) General This Part applies to the carrying out of development that is declared under this section to be a project to which this Part applies: (a) by a State environmental planning policy, or (b) by order of the Minister published in the Gazette (including by an order that amends such a policy). The carrying out of particular or a class of development, or development for a program or plan of works or activities, may be so declared. ... (3) Related development If only part of any development is a project to which this Part applies, the other parts of the development are (subject to subsection (4)) taken to be a project to which this Part applies. The development is to be dealt with under this Part as a single project. ... Division 3 Concept plans for certain projects 75M Application for approval of concept plan for project (1) The Minister may authorise or require the proponent to apply for approval of a concept plan for a project. … 75O Giving of approval for concept plan (1) If: (a) the proponent makes an application for the approval of the Minister under this Part of a concept plan for a project, and (b) the Director-General has given his or her report on the project to the Minister, the Minister may give or refuse to give approval for the concept plan for the project. ... Division 5 Miscellaneous 75W Modification of Minister's approval (1) In this section: Minister's approval means an approval to carry out a project under this Part, and includes an approval of a concept plan. modification of approval means changing the terms of a Minister's approval, including: (a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and (b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval. (2) The proponent may request the Minister to modify the Minister's approval for a project. The Minister's approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part. ... (4) The Minister may modify the approval (with or without conditions) or disapprove of the modification. … (7) This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan. … 75Z Regulations for purposes of Part The regulations may make provision for or with respect to the approval of projects (and concept plans for projects) under this Part and to approved projects (and concept plans), including: ... (b) requiring owners of land on which projects are proposed to be carried out to consent to applications for approvals under this Part, and ... 75ZA Savings, transitional and other provisions … (3) Any development that has been approved by the Minister under this Part (at any time after the commencement of this Part) is taken to be a project to which this Part applies, and to have been such a project for the purposes of any application, concept plan or other matter under this Part in relation to the development.

Environmental Planning and Assessment Regulation 2000

This matter turns on construction of cl 8F(1) of the EPA Regulation which provides: Part 1A Transitional Part 3A projects … 8F Owner's consent or notification (1) The consent of the owner of land on which a project is to be carried out is required for a project application or modification application unless: (a) the application is made by a public authority, or (b) the application relates to a critical infrastructure project, or (c) the application relates to a mining or petroleum production project, or (d) the application relates to a linear infrastructure project, or (e) the application relates to a project on land with multiple owners designated by the Secretary for the purposes of this clause. ...
Part 3A continues to apply to this proposed development by virtue of the transitional provisions within Sch 6A of the current EPA Act.
The meaning of "…land on which a project is to be carried out…" is the key issue of statutory construction that requires determination.

Interpretation Act 1987

The Interpretation Act 1987 relevantly provides: Part 1 Preliminary … 3 Definitions (1) In this Act: ... instrument means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument. ... Part 5 Construction of Acts and instruments … 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. …
The Applicants filed a Court Book which became Exhibit A and Evidence Book which became Exhibit B in these proceedings. Exhibit B contained several documents which provided an overview of the factual background in this matter.
A formal request was made to the Minister that the project be declared of a kind described in Sch 1, cl 13 of the State Environmental Planning Policy (Major Development) 2005, being a residential project with a capital investment value of greater than $100 million, and therefore a project to which Part 3A of the EPA Act applies. Section 75B(1)(a) of the EPA Act provides that a state environmental planning policy may declare a class of development a project to which Part 3A applies. A declaration to this effect was made under delegation on 19 November 2010 accompanied by an authorisation to submit a Concept Plan for the project. The project described in the formal request did not include adjoining land being Scott Street owned by the Council.
A letter from the Council dated 22 October 2012 expressed the view that the Council's portion of Scott Street should be acquired by the developer and incorporated into the proposed development site. Scott Street was subsequently included in the Concept Plan application dated 28 March 2013 made pursuant to s 75M which sought approval for up to 600 dwellings with buildings up to 18 storeys. The effect of s 75B(3) was that Scott Street became part of the project declared a Part 3A project earlier under s 75B. On 23 December 2014 the PAC approved the Concept Plan limited to 400 dwellings pursuant to s 75O.
The Second Applicant entered into an agreement to purchase the Land on 18 August 2015. Following an architectural design competition an application to modify the Concept Plan was lodged pursuant to s 75W of the EPA Act on 14 July 2016 (MOD 1). MOD 1 included the portion of Scott Street owned by the Council. An email from the Department to the First Applicant dated 11 January 2017 advised that the Council's consent as part landowner of Scott Street would be required before MOD 1 or any amended application that excised the Council's land from the proposed development site could be determined. A letter from the Department to the Applicants' solicitors dated 20 March 2017 confirmed its position that the Council is an owner of land on which a project is to be carried out for the purposes of cl 8F(1) of the EPA Regulation. The letter stated: The term "project" is defined broadly in clause 8A of the Planning Regulation as development which Part 3A of the Environmental Planning and Assessment Act 1979 applies. The Department's position is that the Council's land does not cease to be land on which "a project" is to be carried out until such time as the Approval has been modified to change the land on which the project is to be carried out, so as to exclude the Council's land. Accordingly, the Council's consent as landowner is required for a modification application proposing to excise the Council's land from the land on which the project is to be carried out.
A letter from the Council's solicitors to the Applicants' solicitors dated 31 March 2017 confirmed that the Council did not give owner's consent for MOD 1.
A second modification application (MOD 2) was lodged on 7 April 2017. MOD 2 removes from the Concept Plan the portion of Scott Street which is owned by the Council. The Department wrote to the First Applicant on 4 April 2017 confirming its position that the Council's consent is required and that MOD 2 will not be determined until the issue of landowner's consent is resolved. The Department therefore requested that MOD 2 be withdrawn.
The Applicant commenced these proceedings on 25 May 2017.
The Respondents filed submitting appearances in these proceedings. Their positions can be gleaned from the summary of correspondence between the parties at pars 13-15 above. The Respondents consider that until the Concept Plan Approval is modified to remove Scott Street the Council's consent is required. The Council-owned portion of Scott Street falls within the definition of "project" in the words "land on which a project is to be carried out" in cl 8F(1).

Council's consent is not required for MOD 2

The Applicants submitted that the Council's consent is not required for the Department to assess and the Minister to approve MOD 2 as the portion of Scott Street owned by the Council has been removed from the proposed development site. Whether the Council's consent is required turns on the construction of cl 8F(1) of the EPA Regulation. The Applicants gave three reasons in support of their case applying well-known principles of statutory construction of considering the text of a statute and where necessary its context and purpose. Such principles were recently identified by the High Court in Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[25]. I accept the submissions of the Applicants in their entirety and these are now set out.
Firstly, the text and grammatical tense of cl 8F(1) - "land on which a project is to be carried out" - is prospective and forward-looking. The consent of a landowner is clearly required when a project application or modification application proposes development on their land. Consent is not otherwise required. As a matter of fact, MOD 2 proposes to carry out development on land other than the Council-owned portion of Scott Street. Clause 8F(1) applies equally to project applications and modification applications. Construing the provision in this way gives effect to the ordinary meaning of the words "is to be carried out". There is no reason or textual basis to construe the clause differently. It should not be construed as a reference to the land on which the project as already approved was to be carried out. The clause would otherwise have no meaning for an original project application for which there is no existing approval.
Secondly, the position adopted by the Respondents gives cl 8F(1) a meaning which is inconsistent with the empowering provision in the EPA Act specifically s 75Z(b). That subsection explains the scope and purpose of a regulation such as cl 8F(1) and refers to "projects [which] are proposed to be carried out". The word "proposed" refers to what is planned, not what is already approved as the lawful extent of a project. To construe cl 8F(1) otherwise would constrain the ability of a proponent to modify a project approval in a manner not consistent with s 75Z(b), which contemplates owner's consent to be required in relation to land on which a project is proposed to be carried out. Clause 8F(1) should be construed as giving effect to s 75Z(b). A regulation cannot have an effect inconsistent with the empowering act, per s 32(1) of the Interpretation Act 1987 in light of the definition of "instrument" in s 3.
Thirdly, the Respondents' construction of cl 8F(1) has an absurd effect. The consent of a landowner whose land was not part of an existing concept plan but is sought to be included in a modification application to add new land would not be required on the Respondents' construction of "...project on which land is to be carried out...".
To the above I would add that the Minister's wide powers to approve a modification of a concept plan in s 75W provide no basis for preferring the Respondents' construction to the Applicants'.
The declaration sought by the Applicants should be made.

Costs

The Applicants seek their costs of the proceedings. As the successful party and in the absence of disentitling conduct they would generally be entitled to a costs order in their favour applying the usual costs rule. As the Respondents have filed submitting appearances save as to costs it is not appropriate that I finalise a costs order now in case they wish to make submissions on costs. I will discuss with the Applicants the most economical way of resolving costs issues.

Declaration and orders

The Court declares that the s 75W modification application (MP10_0198 MOD 2) dated April 2017 does not require the landowner's consent of Willoughby City Council in order to be determined.
The Court orders: 1. Costs are reserved. 2. The exhibits be returned.

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. Decision last updated: 21 August 2017

At a glance

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Judgment (9 paragraphs)

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