Ms J Reid (First Respondent)
Submitting Appearance (Second Respondent)
Judgment (5 paragraphs)
[1]
Background
The circumstances in which the question arose have been explained by Beech-Jones JA and can be stated briefly here. On 20 August 2020 the consent authority (Sydney City Council) gave notice of its determination to approve the first respondent's development application for the construction of a further development on the common property (roof) of an apartment building in Elizabeth Bay. On 11 November 2020 (within the three-month period permitted by s 4.59 of the Assessment Act to challenge the decision), the appellant commenced proceedings in the Land and Environment Court seeking a declaration that the decision was invalid.
In granting approval, the Council did not apply the provisions of SEPP 65. An officer of the Council responsible for considering that issue had decided that SEPP 65 was not engaged. She did so by determining that the development proposed in the development application did not constitute "the substantial redevelopment … of an existing building" for the purposes of cl 4(1)(a)(ii) of SEPP 65, being the potentially relevant condition of engagement.
[2]
Application of principles
As the foregoing discussion of legal principles establishes, the "jurisdictional fact" issue is to be determined as a matter of construction of the relevant legislation, in this case the Assessment Act. The statutory scheme embodied in the Assessment Act has not changed in a material respect since the judgment of this Court in Woolworths Ltd. Accordingly, the Court should follow the approach adopted in Woolworths Ltd. However, because the particular circumstances of this case differ from those in Woolworths Ltd, the outcome of the analysis in that case does not govern the outcome in this case.
As explained by Spigelman CJ in Woolworths Ltd, the process for granting development consent was then set out in Div 2 of Pt 4 of the Assessment Act. Section 77(a) stated that the Division "applies to development that may not be carried out except with development consent". The Chief Justice noted:
"29 These proceedings raise the issue of what, if any, is the effect of a consent under Div 2 of Pt 4 if, as a matter of objective fact, the development is a prohibited development to which, on a literal interpretation of s 77(a), the Division does not apply."
The Chief Justice then addressed a number of indicators suggesting that the issue was one of jurisdictional fact. He identified the first two indicators in the following terms:
"30 The first indicator arises from the scope and purpose of the legislative scheme creating zones and identifying permissible and prohibited uses within zones. The purpose of such zoning is to segregate uses from each other and to concentrate particular uses within specific areas. This process of segregation and concentration serves a variety of social and economic purposes which are considered through the detailed stages of the promulgation of a local environmental plan.
…
32 The second indicator is the terminology of 'prohibition' itself and the statutory implications of development being prohibited. The very word 'prohibited' has a level of force more consistent with a finding of jurisdictional fact than with the conferral of an ability to err within jurisdiction. In the present scheme, the force of the terminology adopted is reinforced by specific statutory provision."
The Chief Justice observed that use of the land for prohibited development would constitute an offence, concluding that "the fact that what is involved is a contravention of the Act that constitutes a criminal offence is a strong indicator that the fact is jurisdictional": at [37].
After considering the reasoning of the High Court in Corporation of the City of Enfield v Development Assessment Commission, [29] the Chief Justice continued:
"45 A third indicator in the legislative scheme under consideration is found in provisions of the Act which increase the flexibility of the legislative scheme in specific circumstances. The significance of these provisions for present purposes is that they operate on the assumption that a prohibition on use means what it says ….
…
51 Section 79C(1)(a)(i) requires a consent authority to take into consideration the provisions of any environmental planning instrument, but classification is not a part of the plan that arises during the course of the evaluation process. …
52 That this is so is strongly suggested by s 77(a) … which provides that the Division, including all of the steps from s 79A to s 80, only applies if the development may not be carried on except with consent. Unless the development proposal can be accurately said to fall within the classification, none of the steps are applicable."
The contraindications outlined by the Chief Justice have been referred to above and need not be repeated.
It is immediately apparent that the issue raised in the present case differs in significant respects from that in Woolworths Ltd. It does not involve prohibited development, but development which can be carried out with consent. Accordingly, what is now Div 4.3 of the Assessment Act, dealing with development that needs consent, [30] is undoubtedly engaged. It follows that the various steps in Div 4.3, described in s 4.11 as the "main steps in the development consent process" are those set out in ss 4.12-4.18 and relevant parts of the Environmental Planning and Assessment Regulation 2000 (NSW) ("2000 Regulation"). [31] The terms of s 4.15 (Evaluation) have been set out above, [32] and it will be convenient to return to aspects of that provision. First, the terms of s 4.16 should be noted:
4.16 Determination (cf previous s 80)
(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.
(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.
…
(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.
Prohibited development aside, a consent authority is obliged to determine whether or not to grant consent to a development application (s 4.16) and is required to carry out an evaluation taking into consideration the matters specified in s 4.15. Some of those matters will apply to some applications but not others, so that the obligation is to take into account "such of the following matters as are of relevance to the development the subject of the development application". There can be no doubt that such matters as the likely environmental impacts of a development, the suitability of the site, submissions made by members of the public and the public interest (as identified in subs (1)(b)-(e)), are all matters which the consent authority must (so far as relevant) take into account: they cannot reasonably be described as matters which are "preliminary or ancillary to" the decision-making process, nor as raising facts and matters "extrinsic to" that process, so as to require separate determination by a court. There is nothing in the wording of these provisions which would lead to a different view as to operation of par (a) and the matters specified therein. Whilst par (a) qualifies the categories listed with the words "that apply to the land to which the development application relates", it may be doubted that any different exercise is engaged than that of determining matters as being "of relevance".
In the course of his reply, senior counsel for the appellant explained how a design review required under SEPP 65 would provide a focus for issues of "visual privacy" and "view sharing" which lay at the heart of the appellant's objection to the development. In response to a question from the presiding judge, he acknowledged that those matters could well arise separately under pars (b), (c) and (d) of s 4.15(1). [33] That concession, which was undoubtedly correct, militates against any statutory basis for treating some instruments to which reference was required under s 4.15(1)(a) as involving jurisdictional facts, whereas considerations in pars (b)-(e) did not.
There can be legal questions as to the operation of an environmental planning instrument. However, there is extensive provision in Pt 8 of the Assessment Act for reviews and appeals with respect to the grant of development consent, or the refusal of an application for development consent. The inconvenience which would arise if any question of fact or law as to the application of any instrument identified in par (a) required resolution by a court in order to determine the validity of the process of evaluation undertaken by the consent authority. That consequence militates against the drawing of any such implication. The language of s 4.15 itself provides no basis for such an implication, in circumstances where the section expressly confers power, and indeed obligations, on the consent authority and not on a court.
Finally, counsel for the appellant was at pains to emphasise that, in a practical sense, the question as to the engagement of SEPP 65 did not commence at the point at which the consent authority carried out its evaluation of the application. Rather, it arose at a number of earlier stages which counsel summarised as follows: [34]
"In the first instance, the application itself must be accompanied by a design verification statement, and that statement must demonstrate how the provisions of the apartment design guide and the SEPP have been taken into account in designing the apartment building. That must be lodged with the development application.
The matter then proceeds to a panel which the minister appoints [as a] design review panel, and the design review panel must give advice to the consent authority on whether the proposal is appropriate in the circumstances, having regard to SEPP 65. Then, the next step is for the consent authority to determine the matter, and in determining it, the consent authority must have regard to SEPP 65, it must have regard to the advice of the design review panel."
He further noted in submissions in reply that the 2000 Regulation required that, where SEPP 65 applied, various materials were to be included in the development application. [35]
There is no doubt that the process of preparing a development application will require of the landowner (or his or her agent) a degree of sophisticated planning knowledge as to what controls must be complied with and what forms must be completed. However, the fact that important preparatory steps may need to be taken before the powers of the consent authority are engaged provides no basis for inferring that compliance with those steps is a matter which can only be determined in the court and not by the consent authority, but rather the contrary. Indeed, as the chronology in this case demonstrates, there were ongoing exchanges between the applicant for consent and the Council as to what material was appropriate or necessary. So far as it is relevant, the 2000 Regulation expressly envisaged that a consent authority could request information relating to any relevant matter "referred to in s 4.15(1)(b)-(e) of the Act or in any relevant environmental planning instrument". [36] If the Regulation can assist in construing the Act, the appropriate inference is that the consent authority is expected to consider what environmental planning instruments are relevant to the application and what are not.
It follows that, as a matter of construction of the Assessment Act, the application of the environmental planning instruments, including SEPP 65, in a particular case where development is permissible with consent, is a matter for consideration by the consent authority in the first instance (subject to statutory forms of review and appeal) and does not require (or permit) determination by the court.
[3]
Construing the instrument
Although the submissions of both parties in the course of the hearing focused on the operation of cl 4 of SEPP 65 (stating when the terms of the SEPP applied), there was no explanation as to how the language of the legislative instrument in question could determine the operation of the statute. The better view is they cannot. [37] The various questions of construction of the instrument are therefore beside the point.
[4]
Conclusion - jurisdictional fact
There is nothing in the language of the Assessment Act which states or necessarily implies that a question as to the application in a particular case of a particular environmental planning instrument is a matter which can only be determined authoritatively by the court. Rather, by requiring the consent authority to have regard to certain matters, the appropriate implication is that the consent authority is empowered and required to determine which matters are relevant, and how they are engaged, in relation to a particular development application.
By contrast with the issue in Woolworths Ltd (whether a proposed development was prohibited development and therefore did not fall within the assessment function), the engagement, in relation to development concededly permissible with consent, of particular environmental planning instruments is a part of the function conferred on the consent authority under s 4.15 for the purposes of determining whether to grant consent under s 4.16. There is no clearly distinguishable function of classification as there was in determining whether the power of the authority to grant consent was engaged at all.
For this reason, the only basis upon which the appeal could succeed was not made out. It follows that the appeal should be dismissed.
[5]
Endnotes
Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 12 ("Ross v Lane").
Ross v Lane at [103].
Ross v Lane at [86].
Ross v Lane at [104] to [105].
Ross v Lane at [113].
Ross v Lane at [113].
Ross v Lane at [117].
Ross v Lane at [124].
Ross v Lane at [124].
Ross v Lane at [125] to [126]
Ross v Lane at [127] to [128].
Ross v Lane at [133].
Ross v Lane at [143].
Ross v Lane at [151].
SEPP 65; cl 3(1); see Regulation cl 50(1A);.
See for example Crimes (Administration of Sentences) Act 1999, s 135(2)(j)
Ross v Lane at [98] and [147].
[2009] NSWLEC 179; 170 LGERA 223 at [98].
CA Tcpt, 11/08/22, p 2(3)-(8).
(2015) 89 NSWLR 268; [2015] NSWCA 158.
Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; 247 LGERA 277 at [55] (Payne JA, Bell P and Gleeson JA agreeing).
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [6] (Spigelman CJ; Mason P, Handley JA, Sheller JA and Cripps AJA agreeing).
(1976) 135 CLR 110 at 118-119; [1976] HCA 24.
See fn 21 above.
Woolworths Ltd at [47].
(1938) 59 CLR 369 at 391; [1938] HCA 7.
(1997) 187 CLR 297; [1997] HCA 10.
Australian Heritage Commission at 306 (footnote omitted).
(2000) 199 CLR 135; [2000] HCA 5.
What was then s 77 is now s 4.9.
On 1 March 2022 the 2000 Regulation was replaced by the Environmental Planning and Assessment Regulation 2021 (NSW).
Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 at [39] (Crennan, Bell and Gageler JJ).
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: 17 November 2022
Parties
Applicant/Plaintiff:
Ross
Respondent/Defendant:
Lane
Legislation Cited (6)
Environmental Planning and Assessment Regulation 2000(NSW)
Solicitors:
Benjamin & Khoury (Appellant)
Swaab (First Respondent)
A Singh - Sydney City Council (Second Respondent)
File Number(s): 2021/333379
Decision under appeal Court or tribunal: Land & Environment Court
Jurisdiction: Class 4
Citation: [2021] NSWLEC 121
Date of Decision: 4 November 2021
Before: Moore J
File Number(s): 2020/321900
HEADNOTE
[This headnote is not to be read as part of the judgment]
The First Respondent sought and obtained development approval from the Second Respondent, the Council of the City of Sydney (the "Council"), for modifications and extensions to his apartment on the top floor of a building including the construction of an additional storey. The Appellant resided in an apartment in a neighbouring block of apartments. The construction of the additional storey substantially affected the views from one floor of the Appellant's apartment. The Appellant applied to the Land and Environment Court for orders declaring the development approval invalid. The Appellant contended that the development application was governed by State Environment Planning Policy 65 - Design Quality of Residential Apartment Development ("SEPP 65") and the relevant Council had, amongst other matters, failed to refer the application for approval to a design review panel for assessment. Clause 28(1) of SEPP 65 obliges a consent authority to refer a development application which seeks consent to carry out development to which SEPP 65 applies to a design review panel. A design review panel is required to consider the design quality of the development when evaluated in accordance with the "design quality principles" which include effects on the amenity of neighbouring properties. The Council determined that SEPP 65 was not applicable. Whether or not SEPP 65 was applicable depended on whether, in terms of clause 4(1)(a)(ii) of SEPP 65, the proposed development consisted of the "substantial redevelopment or the substantial refurbishment of an existing building".
Before the primary judge (Moore J), the Appellant contended that whether or not cl 4(1)(a)(ii) of SEPP 65 was satisfied was a "jurisdictional fact" that was for the Court to authoritatively determine. The First Respondent contended that it was a matter for the Council to decide. The primary judge assumed, without deciding, that it was a matter for the Court to determine but nevertheless dismissed the proceedings. The primary judge found that the proposed development constituted neither a substantial redevelopment nor a substantial refurbishment of an existing building. In addressing cl 4(1)(a)(ii) the primary judge addressed the effect of the proposed development of the First Respondent's apartment on the visual impact of the building it formed part of but excluded any consideration of "externalities" such as the effect of the development on the views or amenity of neighbouring properties. The primary judge rejected a submission that, because the definition of "building" in s 1.4 of the Environmental Planning and Assessment Act 1979 (the "Assessment Act") includes "part of a building", then any substantial renovation or substantial refurbishment of a single apartment engages SEPP 65.
Sub-section 4.15(1) of the Assessment Act provides that in determining a development application, a consent authority is to take into consideration "such of the following matters as are of relevance to the development the subject of the development application" including the "provisions of …any environmental planning instrument" that "apply to the land to which the development application relates".
The decision was appealed.
The issues arising on the appeal were:
(i) whether a determination of cl 4(1)(a)(ii) of SEPP 65 was satisfied is a matter for the Court or the consent authority to authoritatively determine?
(ii) if the determination of whether cl 4(1)(a)(ii) of SEPP 65 was satisfied is a matter for the Court to authoritatively determine, whether the primary judge erred in concluding that the proposed development is not a "substantial redevelopment or the substantial refurbishment of an existing building".
The Court held, dismissing the appeal:
In relation to issue (i): Basten AJA (Macfarlan JA agreeing):
JUDGMENT
MACFARLAN JA: Subject to one matter, I agree with the judgment of Beech-Jones JA and with the making of the orders that his Honour proposes. The one matter is the question, whose answer is not essential to the outcome of the appeal, of whether the determination of the applicability of the State Environmental Planning Policy No. 65 ("SEPP 65") to the appellant's development application was a jurisdictional fact to be resolved authoritatively by the Court, or whether it was a matter for the Council's decision, challengeable only on conventional judicial review grounds. As is apparent from the two other judgments on this appeal, the issue is one upon which reasonable minds can readily differ. Nevertheless, I have concluded that the issue should be resolved in the manner determined by Basten AJA, for the reasons that his Honour gives. The following observations are by way of emphasis of matters to which his Honour refers.
First, I am persuaded that there is a proper basis, as identified by his Honour, for distinguishing the decision in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2002] NSWCA 422 ("Woolworths"). That case was concerned with a prohibition on developments of a particular type. As Spigelman CJ observed in that case "the fact that what is involved is a contravention of the Act that constitutes a criminal offence is a strong indicator that the fact is jurisdictional" (at [37]). The present case does not involve prohibited development, but development which may be carried out with consent. For that reason, the provision in question here is more readily described as a part of the process of determination by the Council of the development application, as distinct from a determination that is "extrinsic or preliminary or ancillary to the exercise of the power to grant consent" (Woolworths at [51]).
Secondly, although not determinative, the fact that consideration of what is a "substantial" redevelopment is an inherently evaluative exercise. That tends against a conclusion that a jurisdictional fact is involved.
Thirdly, whilst again not itself determinative, the issue arises under section 4.15(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act") in a context where many, if not all, of the matters referred to in the following paragraphs of that section are of a clearly non-jurisdictional fact nature.
Fourthly, characterisation of SEPP 65's application as a jurisdictional fact would render Council consents more readily open to challenge than would otherwise be the case. This could be seen as detrimental to the public interest where the point in issue, being a subjective one of planning and development, is one upon which the Council would be well-equipped to opine and (subject to conventional judicial review challenge) reach a final conclusion.
Application of SEPP 65: "Jurisdictional Fact"
The first issue that arises on the appeal is whether or not the application of SEPP 65 to the First Respondent's DA is to be authoritatively determined by a Court or the consent authority. In the context of his DA, is it for the Court or the Council to finally determine whether the DA involves a "substantial redevelopment or the substantial refurbishment of an existing building"? Although this issue was not raised by either the grounds of appeal or a notice of contention, it was accepted by both parties that it had to be resolved as it was potentially determinative (and could not otherwise be assumed).
As noted, the submissions in relation to this issue described the question of whether the DA involves a "substantial redevelopment or the substantial refurbishment of an existing building" as whether that is a so-called "jurisdictional fact". The description "jurisdictional fact" is often used to describe the criterion that enlivens a statutory power or discretion (Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135; [2000] HCA 5 at [28]; "Enfield"). The result of a process of statutory construction can sometimes yield a conclusion that some criterion relevant to an exercise of power is a "jurisdictional fact", that is, it is a matter for a court and not the decision maker to authoritatively determine. Nevertheless, the use of the phrase "jurisdictional fact" can be confusing in that the formation of an opinion by a decision maker can also be a jurisdictional fact (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]). Similarly, a conclusion that some criterion is for a court to authoritatively determine is not only reached in cases where that criterion is not strictly a pre-condition to the exercise of a power. Hence, the position has been described, more accurately, as involving a distinction between a fact that is an "essential preliminary to the decision-making process" and "a fact to be adjudicated upon in the course of the inquiry" (Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442 to 443; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [46] to [49]; "Woolworths"; Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31 at 33). Thus, in this case, there is no doubt that the authority or jurisdiction to grant or refuse the First Respondent's DA was conferred on the Council. However, the relevant question said to present a "jurisdictional fact" was whether a determination of the applicability of SEPP 65 was an essential preliminary to that decision-making process or a fact or matter to be adjudicated upon in the course of assessing the First Respondent's DA.
Grounds 1, 2 and 3: Addressing What is Substantial
On appeal Mr Robertson contended that in various ways the primary judge erred in concluding that SEPP 65 was not applicable to the First Respondent's DA. He contended that, if SEPP 65 were applicable, then, subject to considering the effect of s 25B of the Land and Environment Court Act, the DA was invalid because at the very least the Council could not determine the DA without referring it to a design review panel and that did not happen. Leaving that aside, if SEPP 65 were applicable it would mean that in determining the DA, the Council failed to take into account a mandatory consideration, being the "provisions of … any environmental planning instrument … that apply to the land to which the development application relates" (s 4.15(1)).
The Appellant's notice of appeal includes five grounds, however ground 5 was not pressed. Grounds 1, 2 and 3 all concern the primary judge's approach to determining whether the DA proposed a substantial redevelopment of an existing building, as follows:
"1. His Honour erred in determining that the proposed development was not substantial redevelopment or substantial refurbishment by excluding from consideration the impact of the additional floor on private views from adjoining buildings [114] at the same time as taking into account the impact on views from the public domain [117].
2. His Honour erred in finding (at [124], noting the typographical error in the indented quote, which should conclude at the second reference to SEPP 65), that cl 4(1)(a)(ii) of SEPP 65 should be construed without regard to the objectives and principles of SEPP 65, and in particular to its emphasis on improving design quality (built form, aesthetics, neighbourhood character, and the amenity of adjacent sites and the neighbourhood).
3. Despite stating (at [125]-[126]) that he had considered design quality objectives of the SEPP to determine whether he would reach a different conclusion in fact his Honour failed to analyse the impact of the additional storey on design quality including neighbouring buildings, as demonstrated by:
a. his choice of plans and photographs which he found were required to be taken into account in deciding whether cl 4 was triggered ([135], [136]-[142], [143]); and
b. his finding that annexures D and F were decisive ([145], [151]),
[n]one of which concern the relationship between the addition and adjoining buildings."
The Appellant's submissions addressed ground 2 first. This ground refers to that part of the primary judge's reasoning summarised above in which his Honour rejected the submission that the question of whether the development is a substantial redevelopment should be answered having regard to the objectives and mechanisms of SEPP 65. The Appellant contended that this approach was inconsistent with s 33 of the Interpretation Act 1987 (NSW) in that it was submitted that the primary judge was obliged to "ask if the competing constructions of 'substantial redevelopment' better promoted the stated purposes or objects" of SEPP 65. The First Respondent contended that the primary judge did not find that the aims and objectives of SEPP 65 should not be used to construe cl 4 of SEPP 65 but that the considerations identified in Sch 1 to SEPP 65 [i.e., the design quality principles] when read with the objectives should not be used to construe the application of the instrument.
Whether the application of SEPP 65 to a development application is a jurisdictional fact is a question of statutory construction. Although the Assessment Act does not expressly provide for the engagement of the power upon the satisfaction or opinion of the consent authority, such an intention may be inferred from the nature of the power and the circumstances in which it comes to be exercised: [75], [77].
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422; Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; 247 LGERA 277, applied.
The principles established in Woolworths Ltd v Pallas Newco in relation to the operation of the Assessment Act must be applied; however, the aspect of the statutory scheme which is engaged is different. In that case, the question was whether the proposed development was prohibited, or could be carried out with consent. That issue was characterised as "preliminary or ancillary to" the consent process, and as raising facts and matters "extrinsic to" that process. In the present case, there was no issue but that the development was permitted with consent; the question was whether SEPP 65 was a matter to be applied in the course of determining whether to grant consent. [2], [87], [93], [94].
Ordinarily, the legislature intends a decision-maker to determine issues requiring evaluative judgment, so that any error would be an error within jurisdiction. Where it may be difficult to characterise matters, as in s 4.15 of the Assessment Act which includes some criteria which are precisely defined and other criteria involving matters of degree, it is unlikely that the legislature intended some to be jurisdictional facts, but not others: The inconvenience of the conclusion that some matters could only be authoritatively decided by a court also militated against them being jurisdictional criteria:[3]-[5], [80], [94]-[95]. Accordingly, the application or otherwise of SEPP 65 was a matter for the consent authority to determine [1], [73].
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, referred to.
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422, distinguished.
In relation to issue (i) per Beech-Jones JA (dissenting):
In the context of determining an application for approval of a development application, the issue posed by cl 4(1)(a)(ii) of SEPP 65 is a matter that is to be determined objectively by a Court and not a matter is that authoritatively determined by the consent authority (at [48]). Ordinarily, the scope of the matters that must be considered by a decision maker such as a consent authority in the exercise of a statutory power is a matter for a court to determine and not the decision maker themselves, although it may be clear from the terms of a particular planning instrument that whether it is applicable to a particular development applicant is dependent on the formation of an opinion by the consent authority. Nothing in text of SEPP 65 suggests that is the case (at [39] to [40]). The evaluative nature of the test posed by cl 4(1)(a)(ii) tended against a conclusion that it is a matter for the Court to authoritatively determine, however that is not determinative and the scope for evaluation is limited if it does not include external impacts (at [44] to [47]).
Colonial Bank of Australasia Ltd v Willan (1874) LR 5 PC 417; Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135; [2000] HCA 5; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21; SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66; Sutherland Shire Council v Finch (1970) 123 CLR 657; [1970] HCA 49; Timbarra Protection Coalition Inc (1999) 46 NSWLR 55; [1999] NSWCA 8; Trives v Hornsby Shire Council & Ors (2015) 89 NSWLR 268; [2015] NSWCA 158; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422; Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA147 considered.
In relation to issue (ii): per Beech-Jones JA (Macfarlan JA and Basten AJA not deciding):
The primary judge did not err in determining that the proposed development did not consist of the "substantial redevelopment or the substantial refurbishment of an existing building". The primary judge was correct to conclude that the external impacts of the proposed development were irrelevant to a determination of whether the development consists of the substantial redevelopment of an existing building (at [57]). The primary judge did not err in his approach to the definition of "building" (at [61]).
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 applied.
BEECH-JONES JA: This is an appeal under s 58 of the Land and Environment Court Act 1979 (NSW) against a judgment of Moore J dismissing proceedings brought by the Appellant, Olivia Ross. [1] Those proceedings were brought in the Land and Environment Court's Class 4 jurisdiction. The Appellant sought a declaration that a development consent granted by the Second Respondent, the Council of the City of Sydney (the "Council"), in respect of work proposed to be undertaken on an apartment owned by the First Respondent, Patrick Lane (the "Respondent"), was invalid. The Council filed a submitting appearance in the Land and Environment Court and did not take an active part in proceedings in this Court.
The appeal concerns the applicability or otherwise of the State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development ("SEPP 65") to the Council's decision to approve the First Respondent's development application ("DA"). Two principal issues arose on the appeal. The first was whether the issue posed by cl 4(1)(a)(ii) of SEPP 65, namely whether the First Respondent's DA involved "the substantial redevelopment or the substantial refurbishment of an existing building" and upon which the applicability of SEPP 65 depended, is to be determined as a matter of objective fact, that is, determined authoritatively by a court, or is a matter for the Council as the consent authority to finally decide. The second issue was whether, as the primary judge found, an assessment of whether the DA involved a "substantial redevelopment" is to be determined by reference only to its effect on the building that the apartment formed part of, or whether it extended to considering the effects of the proposed works on the amenity of neighbouring properties.
For the reasons that follow, I consider that, in the context of considering a DA, cl 4(1)(a)(ii) of SEPP 65 poses an issue of objective fact that can only be authoritatively determined by a court. In relation to the second issue, I consider that the approach of the primary judge was correct. Accordingly, I would dismiss the appeal.
Much of the argument in relation to the "jurisdictional fact" issue concentrated on the terms of SEPP 65 which are set out above, however, the starting point is the Assessment Act.
In support of its contention that a determination of whether cl 4 of SEPP 65 is a matter for a Court to authoritatively determine, the Appellant referred to various parts of Regulation, cl 50 that required the submission of various documents concerning the compliance with design quality principles for DAs that "relate … to residential apartment development", being a reference to a development to which SEPP 65 applies. [15] Compliance with these provisions is required by ss 4.11 and 4.12 of the Assessment Act which specify the requirements for a DA. It was submitted that the provision of this material was a precondition to the making of a valid DA and in turn a valid development consent. It was submitted that this supported the contention that whether SEPP 65 is applicable is an essential preliminary to the consent authority's decision making as opposed to something to be adjudicated upon during the determination of a development approval.
There is some force in this, although its proper resolution would require this Court to determine whether the failure to include the specified documents with a DA would render a subsequent grant of a development consent invalid, a matter that is not necessary to decide (see SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [15] and cases thereat).
The inquiry as to whether some criterion is a jurisdictional fact involves a "careful analysis of the statute" with particular focus on the "scope and nature of the jurisdiction and of the fact said to be jurisdictional" (Woolworths at [6]). Thus, the starting point is the power that was exercised by the Council, namely s 4.16(1) of the Assessment Act. It empowers and obliges a "consent authority … to determine a development application" by granting consent to the application either unconditionally or subject to conditions or by refusing consent to the application. Section 4.15 addresses the exercise of that power. Section 4.15(1) provides:
"(1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application -
(a) the provisions of -
(i) any environmental planning instrument, and
…
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest." (emphasis added)
Although many environmental planning instruments, including SEPP 65, are drafted in terms that purport to dictate the matters that must be considered by the consent authority in determining a DA, they do so from a shaky premise. Section 4.15(1)(a)(i) only requires that the consent authority "take into consideration" the provisions of the relevant environmental planning instrument. A statutory requirement to "take into account" a factor in making an administrative decision means it must be "give[n] weight … as a fundamental element in making" the relevant determination (R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J; [1979] HCA 32). A statutory requirement to take an instrument "into consideration" is not relevantly different. However, neither phrase requires the decision maker to apply the instrument as though it were a binding statute.
The present issue concerns what instruments fall within s 4.15(1)(a)(i); i.e., whether the instruments "apply to the land to which the development application relates". If the text of the statute or instrument suggests that the relevant determination is a matter of opinion or satisfaction of the relevant decision maker then it will not be jurisdictional in the sense discussed above (Enfield at [33]). Hence, in Trives v Hornsby Shire Council & Ors (2015) 89 NSWLR 268; [2015] NSWCA 158 ("Trives") the relevant provisions of the Assessment Act conferred on the accredited certifier the task of, inter alia, "determin[ing] … whether the proposed development was complying development or not" before issuing a complying development certificate (at [28] to [30]). This was held to be inconsistent with a contention that it was a matter for the court to determine whether the proposed development was "complying development" (at [34]). On the proper construction of that part of the Assessment Act considered in Trives the determination of whether the development was complying development was something to be adjudicated upon in the course of the inquiry.
However, unlike Trives, nothing in the Assessment Act expressly makes a determination of whether the instrument in question "appl[ies] to the land to which the development application relates" a matter of opinion for the consent authority. If SEPP 65 is such an instrument, then, as just noted, it must be taken into consideration. It is one thing for the weight to be attached to a particular instrument to be a matter for the consent authority. It is another for the statute to be construed so as to make the applicability of a particular environmental planning instrument to a particular development consent application dependent on the assessment of the consent authority. Ordinarily, the scope of the matters that must be considered by a decision maker such as a consent authority in the exercise of a statutory power is a matter for a court to determine and not the decision maker themselves. One circumstance that is outside the ordinary is those statutes that expressly provide that the decision maker may have regard to such matters as they "consider relevant" [16] but even those type of provisions have their limits.
In this case there is no scope for a consent authority to determine not to have regard to any of the considerations specified in ss 4.15(1)(b) to (e), although the facts found concerning those matters and the weight to be attached to them is a matter for the consent authority. Save for one matter, the same is applicable to ss 4.15(1)(a). The one matter that may differentiate s 4.15(1)(a) from ss 4.15(b) to (e), is that it may be clear from the terms of a particular instrument that whether it is applicable to a particular development applicant is dependent on the formation of an opinion by the consent authority. Thus, subject to considering the terms of the particular instrument, whether or not the instrument applies to the land to which the development relates is not a matter for the consent authority to authoritatively decide.
This approach is supported by the following passage from Woolworths at [50] to [51] where Spigelman CJ observed that:
"50 [Former s] 79C of the Act makes provision for a consent authority to take into account a wide range of considerations when determining to grant or withhold consent under s80 of the Act. It is not necessary to set them out here. However, the particular facts and matters which determine whether the proposed development falls within a classification do not inevitably arise in the course of considering the exercise of the discretionary power to grant or withhold consent. The classification process is not only distinct but is extrinsic to the process of determining whether consent should be given. No doubt the features of the development that determine the classification have implications for the s79C considerations, but that does not mean that the classification is a matter upon which a consent authority must adjudicate when making a s80 determination.
51 Section 79C(1)(a)(i) [of the Assessment Act] requires a consent authority to take into consideration the provisions of any environmental planning instrument, but classification is not a part of the plan that arises during the course of the evaluation process. The determination of whether a particular development proposal answers the classification of "drive-in take-away establishment" appears to me to be a reference accurately described as either extrinsic or preliminary or ancillary to the exercise of the power to grant consent. It is not a matter that falls to be considered under s79C, in the course of making a determination under s80."
Former s 79C of the Assessment Act as referred to in this passage was in terms that are not materially different to s 4.16 described above. The process of "classification" in this passage is a reference to the classification within a local environmental plan of various uses of land as permissible with consent (at [197]). Hence, the determination of whether a particular use of land could be the subject of a development consent was characterised as "extrinsic or preliminary or ancillary" to the process of determining whether consent could be granted under s 79C (Woolworths at [51]).
The process of determining whether a particular environmental planning instrument "appl[ies] to the land to which the development application relates" is similar to the process of determining whether a particular use of land is permissible with consent although the analogy is not complete. Both processes are preliminary to the exercise of the power in that the latter may preclude the exercise of the power and the former specifies what matters must be considered when the power is being exercised. Once both of those matters are ascertained then the process of exercising the power to grant or refuse development consent can be undertaken. While it is not free from doubt, I consider that a determination of whether or not an environmental planning instrument applies to the land to which the DA relates for the purposes of s 4.15(1)(a) of the Assessment Act is a matter for a court and not the consent authority to authoritatively determine. That said it follows from [40] that the outcome of the court's determination could be that the applicability of the particular instrument is itself dependent on the formation of an opinion by the consent authority but that will only be because the instrument is drafted in a manner that makes it so.
This brings the analysis to cl 4 of SEPP 65 which is set out above. Nothing in cl 4 expressly makes a determination of whether SEPP 65 applies a matter for the consent authority to determine (authoritatively). As noted, the relevant part of this clause which is said to be engaged is cl 4(1)(a)(ii) in that the Appellant contends that the First Respondent's development involved the substantial redevelopment or the substantial refurbishment of an existing building (especially having regard to the definition in s 1.4 of the Assessment Act of "building" that includes "part of a building"). Subject to what follows, it can be accepted that a consideration of what is "substantial" is an evaluative exercise. A criterion which requires an evaluative judgment tends against a conclusion that it is a jurisdictional fact in the sense discussed (Woolworths at [53]; Timbarra Protection Coalition Inc (1999) 46 NSWLR 55 at [52]; [1999] NSWCA 8) although it was said to be "rarely … determinative" in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [184] (per Basten JA).
However, two matters should be noted. First, the balance of cl 4 does not appear to involve any evaluative judgments or at least any such judgments of substance. A determination that the development the subject of a DA involves the erection of a new building, the conversion of an existing building, that the building concerned has a least three storeys, etc. or contains at least four dwellings, is not particularly difficult. The same follows in respect of applying the exceptions in cll 4(3) to (4). Only the word "substantial" and the characterisation of the purpose of the development required by the opening words of cl 4(1) require an evaluative judgment. With the former, a test as to whether or not a report about an employee was "substantially favourable" was found to be an objective matter for a court and not a Minister to determine in Sutherland Shire Council v Finch (1970) 123 CLR 657 at 663 and 665 to 666; [1970] HCA 49 ("Finch"). With the latter, the necessity to engage in a process of characterisation was held to be "jurisdictional" in Woolworths.
Second, a consideration of the extent to which the evaluative nature of the test of what is "substantial" in cl 4(1)(a)(ii) bears upon whether satisfaction of that clause is a "jurisdictional fact" in the sense discussed reveals a tension in the Appellant's argument. As noted, one of the Appellant's arguments before the primary judge and which is reflected in ground 1 of her appeal is that an assessment of what is a substantial redevelopment involves a consideration of the effect of the development on the amenity of neighbouring properties (and not just on the visual impact of the building being redeveloped). The Appellant seeks to support that argument by contending that cl 4 should be read having regard to the objects and purposes of SEPP 65 including the various design quality principles in Sch 1 which seek to promote the amenity of neighbouring properties. However, the greater the expansion of the scope of the evaluation of what constitutes a substantial redevelopment for the purposes of cl 4(1)(a)(ii), the more likely it is that, on the true construction of the Assessment Act and SEPP 65, it is the consent authority that makes the authoritative assessment on that topic and not a court. To have the determination of whether SEPP 65 applies dependent on whether or not, as a matter of objective fact, an overall assessment of all of the effects of a proposed development on such matters as the character of the neighbourhood as well as the internal and external amenity of neighbouring properties would be productive of great uncertainty and inconvenience. It would render the type of analysis that is often undertaken in the process of considering a DA applicable at the point of determining whether SEPP 65 applies in the first place.
However, as developed below, as I do not accept that the assessment of whether a redevelopment is substantial involves a consideration of external impacts then this result does not ensue. Instead, the process of assessment is that reflected in the primary judge's approach outlined above. While that does involve an evaluative judgment it is far more confined than that proposed by the Appellant. Like the conclusion in Finch, it is not incompatible with an assessment of the applicability of SEPP 65 being authoritatively determined by a court and not the consent authority.
Accordingly, I am satisfied that, in the context of considering a DA under ss 4.15 and 4.16 of the Assessment Act, the issue posed by cl 4(1)(a)(ii) of SEPP 65 is a matter that is to be determined objectively and not a matter that is authoritatively determined by the consent authority.
The Appellant contended that the "more expansive interpretation" she contended for, i.e., one that addressed the external effects of the development, would better promote the stated purposes of SEPP 65. The submissions noted that the primary judge addressed the matter on the basis that the aims and objects were to be considered but contended (correctly) that this alternative finding was only reached by excluding "external impacts".
The primary judge's exclusion of a consideration of external impacts was the subject of grounds 1 and 3 of the notice of appeal. Their relationship to ground 2 is illustrated by the Appellant's contention that the subject matter of impact on external views is reflected in a number of the apartment design quality principles including those noted above and that the primary judge's approach led to his Honour not selecting images concerning the effect of the development, including those supposedly "showing severe view loss from the [Appellant's] property". It was contended that the primary judge's consideration of the visual impact of the proposed redevelopment on the subject building but exclusion of impact on the views of other buildings revealed a "tension if not an illogicality."
Ultimately, all these points reduce to the contention that whether, on the proper construction of cl 4(1)(a)(ii), the primary judge's approach of excluding a consideration of the effect on the amenity (including views) of the proposed redevelopment on neighbouring buildings was correct. Thus, it can be accepted that s 33 of the Interpretation Act did require the preferment of a construction that would promote the purpose and objects of SEPP 65 to one that would not, however that only begs the question of what the available constructions are. Further, while s 33 of the Interpretation Act may be applicable so are all of the relevant principles of statutory construction including the necessity to begin with the text as well as "requir[ing] consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief, it is seeking to remedy" (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; citations omitted) as well as considering the utility of the competing constructions contended for.
The text of cl 4 of SEPP 65 is set out above. Leaving aside cl 4(1)(a)(ii) the remainder of its provisions do not involve any consideration of the effect on the amenity or the like of neighbouring properties. Thus, the answer to whether a "new building" is either erected or is not, or whether an existing building is converted or not, does not depend on any assessment of their impact on neighbouring properties. Similarly, a determination of whether or not a building has at least three or more storeys or at least four or more dwellings is not determined by any consideration of neighbouring properties. It is difficult to see why, of all the forms of development specified in cl 4, only a determination of whether the re-development of a building is substantial as contemplated by cl 4(1)(a)(ii) should require a consideration of impacts on the amenity, etc. of neighbouring properties.
Further, as already adverted to, to require the consideration of external impacts in determining whether cl 4(1)(a)(ii) applies would be productive of great uncertainty and inconvenience. It would undermine the proper application of SEPP 65 rather than enhance it. If SEPP 65 is applicable because an assessment of the external effects of the proposal warrants the conclusion that the development consists of a substantial redevelopment, then the outcome of the referral to the design review panel may be the imposition of a condition that renders the effect insubstantial and thus SEPP 65 would no longer be applicable. Otherwise, such a process would lack coherence with s 4.15(1)(b) of the Assessment Act in that the "likely impacts" of the development would be considered both at the point of determining the applicability of an environmental planning instrument said to apply to the land to which the DA relates and in the assessment of the DA it requires.
The primary judge was correct to conclude that the external impacts of the proposed development were irrelevant to a determination of whether the development consists of the substantial redevelopment of an existing building. There was no tension much less illogicality in considering the impact of the proposed development on external views of the building but excluding the effects of the development on the amenity including the views of other buildings. The distinction between the focus on the development of the existing building as required by cl 4(1)(a)(ii) of SEPP 65 and the consideration of the "the likely impacts of that development" as required by s 4.15(1)(b) of the Assessment Act and other provisions of SEPP 65 (or both as the case may be) are mandated by the words of the relevant provisions.
There was no challenge by the Appellant to the primary judge's assessment of whether the development consists of a substantial redevelopment of an existing building, assuming his Honour's approach of excluding any consideration of external impacts was correct.