NSWNSWLEC

Sader v Elgammal

[2024] NSWLEC 4

Land and Environment Court (NSW)|2024-02-02|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-02-02

Before

Pepper J

Catchwords

(2018) 365 ALR 86 Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2021] NSWLEC 64 Great Lakes Council v Lani [2007] NSWLEC 681

Source

Original judgment source is linked above.

Catchwords

(2018) 365 ALR 86 Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2021] NSWLEC 64 Great Lakes Council v Lani [2007] NSWLEC 681

Judgment (33 paragraphs)

[1]

A Private Certifier Issues a CDC Absent Landowner's Consent

These proceedings concern the carrying out of development on Crown land on the Georges River at Connells Point, in the Georges River local government area.
By summons filed 5 December 2022, the applicants, Mark Sader and Sandra Sader ("the Saders"), seek a declaration pursuant to s 4.31 of the Environmental Planning and Assessment Act 1979 ("the EPAA") that complying development certificate 8058994 issued by Paul Gearin, the second respondent, on 5 September 2022 ("the CDC"), is invalid, is of no effect and is to be set aside. An order is also sought restraining the first respondent, Yasser Elgammal, from acting upon, or carrying out, any works in purported reliance on the CDC.
The basis of the application is the failure to obtain landowner's consent in respect of the CDC from the State of New South Wales, the third respondent in the proceedings, prior to the CDC being issued. That ground was admitted by Elgammal in his response to the summons filed on 10 May 2023.
By consent, the parties therefore ask that the Court makes the orders sought in prayers 1 and 2 of relief of the summons.
As the parties accepted, unlike other orders sought by consent, declaratory relief may only be made upon the Court being satisfied as to the appropriateness of doing so.
In the circumstances of this case, the Court has, after reviewing the evidence and having regard to the statutory framework and the existing authorities, determined that it is appropriate to grant the declaratory relief sought in the summons.

[5]

Applicable Legal Principles in Relation to the Granting of Declaratory Relief Absent a Contradictor

The relevant legal principles in relation to the granting of declaratory relief were set out by Preston J in Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 (at [20]-[25]). They were recently summarised by Pritchard J in PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 (at [72]-[75]): 72 The principles in relation to the obtaining of declaratory relief are well-established in this jurisdiction. The principles were enunciated by Gibbs J (as his Honour then was) in Forster v Jododex (Forster) at 437 as requiring: (1) a real and not a theoretical question; (2) the person raising the question to have a real interest to raise it; and (3) the person to be able to secure a proper contradictor, being someone presently existing who has a true interest to oppose the declaration sought. 73 The Court's correspondence with the parties (see above at [68]-[71]) arose from a concern that there was no proper contradictor in circumstances where Council indicated that it "takes no position on whether or not the development consent has lapsed". 74 In Penrith City Council v Dincel Construction System Pty Limited and Gaonor Pty Limited (OSSM case), Robson J observed as follows: 14. It has been held that a condition precedent to granting declaratory relief is that, inter alia, the plaintiff must be able to secure a proper contradictor, that is, someone presently existing who has a true interest to oppose the declaration sought: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 at 438. 15. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 ('MSY'), the question that arose was whether, having regard to the consent of the parties to the granting of the declaratory relief proposed, the primary judge was prevented from granting that relief. Put another way, the question was whether consent to the relief sought precluded the respondent from being a "proper contradictor". The Full Federal Court (Greenwood, Logan and Yates JJ) held, at [30], that the correct position could be found in the judgments of Dawson J in Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60 at 648 and French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (administrator appointed) [2004] FCA 1390; (2004) 211 ALR 231 at [47]. The Court stated that if a party had a true interest in the plaintiff's claim, even if they saw that interest served by not opposing the relief claimed, that would be sufficient to render them a "proper contradictor": MSY at [16]. Similar sentiments were expressed in Zetting v Müller [2017] NSWSC 659 and in the matter of Beechworth Land Estates Pty Ltd (administrators appointed) [2017] NSWSC 1447. 75 In this case, there was no proper contradictor, active or inactive. It is true that the Court has granted declaratory relief in circumstances where there was no contradictor: see Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council (Zaymill), a case relied on by Council, and Donvito v Hawkesbury City Council (Donvito). It is also clear that the Court's jurisdiction to make a declaration is a "very wide one", limited only by the Court's discretion. Whilst the jurisdiction may be ousted by statute, the right of a subject to apply to the court for a determination of their rights will not be held to be excluded except by clear words.

[6]

A Failure to Obtain Owner's Consent Results in Invalidity

The case law makes it plain that the result of a failure to obtain landowner's consent where it is mandated for the lawful grant of a CDC or development consent, is invalidity.
The leading authority dealing with the issue of landowner's consent is the decision of the Court of Appeal in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 365 ALR 86. In that case, Preston J considered in detail with the issue of landowner's consent (at [81] - [101]). His Honour found that the giving of landowner's consent to the making of a development application with respect to the owner's land for the purpose of cl 49 (as it then was) of the Environment Planning and Assessment Regulation 2000 ("the Regulation") was an "essential prerequisite to, and part of the process of, a consent authority's determination of the application" (at [95]). The development application is ineffective and incomplete when it does not contain the information and is not accompanied by the documents that the EPAA and the Regulation require. His Honour held there can be "no valid determination of the development application until there is substantial compliance with such statutory prescriptions" (at [97]).
Ultimately on the facts in that case, his Honour found that the decision to grant consent without landowner's consent involved jurisdictional error. Owner's consent was not "merely a requirement to be fulfilled before work is undertaken on any affected land. The Commissioner's decision to grant consent was therefore outside power" (at [174]). On this issue, Basten JA agreed stating that, "the result is the invalidity of the development consent" (at [9]).
Following Al Maha, in Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2021] NSWLEC 64, Moore J put the position more emphatically, stating that "any development consent, including a complying development certificate, which purports to approve development on land where there is no owner's consent for such development is invalid" (at [52] emphasis added).
More recently, in Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140, Pritchard J considered the failure to obtain landowner's consent from the Minister administering the Crown Land Management Act 2016 on behalf of the Crown in respect of a State significant development ("SSD") consent. Despite the Minister for Planning being the proponent for the project (a school), the Court held that the relevant SSD consent was invalid on the basis that landowner's consent of the Minister for Crown Lands had not been granted. Her Honour found that this was a jurisdictional error that was not merely technical, but was fundamental to the proper exercise of the consent authority's functions. Pritchard J declined to exercise the Court's discretion under s 25B of the Land and Environment Court Act 1979 to provide for the conditional validity of the consent. In relation to the materiality of the breach, the Court found that the making of the decision to grant consent to the development application without the consent of the Minister was material compliance could have resulted in a different decision.

[28]

The case law makes it plain that the result of a failure to obtain landowner's consent where it is mandated for the lawful grant of a CDC or development consent, is invalidity.
The leading authority dealing with the issue of landowner's consent is the decision of the Court of Appeal in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 365 ALR 86. In that case, Preston J considered in detail with the issue of landowner's consent (at [81] - [101]). His Honour found that the giving of landowner's consent to the making of a development application with respect to the owner's land for the purpose of cl 49 (as it then was) of the Environment Planning and Assessment Regulation 2000 ("the Regulation") was an "essential prerequisite to, and part of the process of, a consent authority's determination of the application" (at [95]). The development application is ineffective and incomplete when it does not contain the information and is not accompanied by the documents that the EPAA and the Regulation require. His Honour held there can be "no valid determination of the development application until there is substantial compliance with such statutory prescriptions" (at [97]).
Ultimately on the facts in that case, his Honour found that the decision to grant consent without landowner's consent involved jurisdictional error. Owner's consent was not "merely a requirement to be fulfilled before work is undertaken on any affected land. The Commissioner's decision to grant consent was therefore outside power" (at [174]). On this issue, Basten JA agreed stating that, "the result is the invalidity of the development consent" (at [9]).
Following Al Maha, in Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2021] NSWLEC 64, Moore J put the position more emphatically, stating that "any development consent, including a complying development certificate, which purports to approve development on land where there is no owner's consent for such development is invalid" (at [52] emphasis added).
More recently, in Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140, Pritchard J considered the failure to obtain landowner's consent from the Minister administering the Crown Land Management Act 2016 on behalf of the Crown in respect of a State significant development ("SSD") consent. Despite the Minister for Planning being the proponent for the project (a school), the Court held that the relevant SSD consent was invalid on the basis that landowner's consent of the Minister for Crown Lands had not been granted. Her Honour found that this was a jurisdictional error that was not merely technical, but was fundamental to the proper exercise of the consent authority's functions. Pritchard J declined to exercise the Court's discretion under s 25B of the Land and Environment Court Act 1979 to provide for the conditional validity of the consent. In relation to the materiality of the breach, the Court found that the making of the decision to grant consent to the development application without the consent of the Minister was material compliance could have resulted in a different decision.

Sader v Elgammal - [2024] NSWLEC 4 - NSWLEC 2024 case summary — Zoe

Sader v Elgammal

At a glance

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Catchwords

Judgment (33 paragraphs)

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Legislation Cited (4)

Cases Cited (17)

Cited By (2)