Save Bungendore Park Inc v Minister for Education and Early Learning

ract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Dubler Group Pty Ltd v Minister for Infrastructure and Planning and Natural Resources (2004) 137 LGERA 178; [2004] NSWCA 424 Filetron Pty Ltd v Innovate Partners Pty Ltd [2023] NSWLEC 45 Gazcorp Pty Ltd v Westfield Management Pty Ltd [2004] NSWCA 63 GPT Re Ltd v Wollongong City Council (No 2) (2006) 151 LGERA 158; [2006] NSWLEC 401 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) (2012) 190 LGERA 119; [2012] NSWLEC 43 Hurstville City Council v Minister for Planning and Infrastructure (2012) 189 LGERA 269; [2012] NSWLEC 134 Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819; [2022] HCA 28 Kindimindi Investments Pty Ltd v Lane Cove Council and Anor (2007) 150 LGERA 333; [2007] NSWCA 38 Kirby v Health Care Complaints Commission (NSW) [2021] NSWCA 138 Liverpool City Council v Moorebank Recyclers Ply Ltd [2018] NSWCA 7 Mills v Commissioner of Taxation (2012) 250 CLR 171; [2012] HCA 51 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 95 ALJR 557; [2021] HCA 19 Minogue v State of Victoria (2018) 264 CLR 252; [2018] HCA 27 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546; [2016] HCA 33 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd (2021) 393 ALR 162; [2021] NSWCA 206 Satmell Holdings Pty Ltd v Blacktown City Council [2019] NSWLEC 94 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Valuer-General v Sydney Fish Market Pty Ltd (2023) 255 LGERA 415; [2023] NSWCA 52 Vella v Minister for Immigration and Border Protection (2015) 230 FCR 61; [2015] FCAFC 53 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Waverley Council v Samadi [2020] NSWLEC 67 Texts Cited: Explanatory Memorandum, Crown Land Management Bill 2016 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 9 November 2016 Herzfeld and Prince, Interpretation (2020, Thomson Reuters, 2nd ed) Category: Principal judgment Parties: Save Bungendore Park Inc (Applicant) Minister for Education and Early Learning (First Respondent) Minister for Planning (Second Respondent) Representation: Counsel: A Stafford (Applicant) D Hume (First Respondent) F Berglund (Second Respondent) Solicitors: Beatty Hughes and Associates (Applicant) MinterEllison (First Respondent) Department of Planning and Environment (Second Respondent) File Number(s): 2023/88750 Publication restriction: Nil

JUDGMENT Introduction Outcome Background facts Relevant statutory provisions Issue one: whether the development consent is invalid by reason of the consent of the Minister administering the CLM Act on behalf of the Crown not having been given to the lodgment of the development application Whether "owner's consent" is jurisdictional and was required by the time of the decision of the second respondent to grant development consent Applicant's submissions First respondent's submissions Second respondent's submissions The applicant's submissions in reply The decision of the second respondent to approve development on dedicated Crown land, Lot 2 DP 1276282, being dedicated Crown land outside the acquired "main site" Applicant's submissions First and second respondents Owner's consent was required for the application for development on dedicated Crown land Applicant's submissions First and second respondents Whether notices "purportedly under cl 49(2)" of the 2000 EPA Regulation "obviate the need to comply with s 2.23(5) of the CLM Act" First respondent's submissions The question of the materiality of the decision made without owner's consent Applicant's submissions Respondents' submissions Conclusions in relation to issue one Issue two: whether the Court should make an order for the conditional validity of the development consent pursuant to s 25B of the LEC Act Applicant's submissions First respondent's submissions Second respondent's submissions Applicant's reply submissions in relation to s 25B of the LEC Act Conclusions in relation to whether the Court should make an order for the conditional validity of the development consent Parties' submissions in relation to costs Conclusions and orders

Introduction

1. By second further amended summons filed 24 July 2023, Save Bungendore Park Inc (the applicant) seeks judicial review of a decision of the second respondent, the Minister for Planning (the second respondent), made on 24 January 2023 (the decision) to grant development consent (the development consent) to development application SSD-14394209 lodged on 10 September 2021 for the construction and operation of a new high school in Bungendore, NSW (the development application). The development consent was granted by the second respondent pursuant to s 4.38 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in relation to State significant development declared as such by the Minister or under a State environmental planning policy (or SEPP) under s 4.36 of the EPA Act.
2. The applicant seeks the following orders: 1. That the grant of development consent by the Minister for Planning on 24 January 2023 purportedly pursuant to section 4.38 of the Environmental Planning and Assessment Act 1979 to development application SSD-14394209 for the construction and operation of a new high school at Bungendore (Development Consent) is declared to be invalid. 2. That the Development Consent is set aside. 3. If necessary, an order restraining the First Respondent from commencing carrying out development in accordance with the Development Consent. 4. An order that the Respondents pay the Applicant's costs of the proceedings. 5. Such further or other order as the Court deems fit.
3. The matter was heard on 17 July 2023. On that occasion, the Court raised the question of the proper first respondent to the proceedings. The applicant for the development consent was recorded as the "NSW Department of Education" (Department of Education), and the summons identified the first respondent in these proceedings in the same terms. In Boydtown Pty Ltd v Minister for Planning and Public Spaces, [1] I considered at [6] to [20] whether a "department" is an entity capable of being sued in Class 4 proceedings and concluded that the proper third respondent there was the individual decision-maker or the relevant secretary of the department, or both. Each of those was the "person … responsible" for the decision under review having regard to r 59.3 of the Uniform Civil Procedures Rules 2005 (NSW) (UCPR). [2] In these proceedings, on 24 July 2023 the parties sent a communication to the Court stating they had conferred and agreed that the appropriate reference to the first respondent should be the "Minister for Education and Early Learning". Accordingly, I granted the applicant leave to further amend its summons to properly identify the first respondent as the Minister for Education and Early Learning (the first respondent).

Outcome

1. I have determined to uphold the applicant's summons and grant the relief sought in it. My conclusions are summarised as follows in relation to the two issues for determination: 1. At the time of determining to grant consent to a development application for State significant development pursuant to s 4.38 of the EPA Act, evidence of the provision of consent from the Minister administering the CLM Act on behalf of the Crown for the making of an application relating to dedicated Crown land, as required by s 2.23 of the CLM Act, was a jurisdictional prerequisite to the exercise of the function to determine the development application. The second respondent did not obtain consent from the Minister administering the CLM Act to carry out development on certain parts of the land the subject of the development application, being dedicated Crown land. Clause 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) (2000 EPA Regulation) did not remove the need for consent from the Minister administering the CLM Act. Accordingly, the development consent is invalid. 2. The failure to obtain the consent of the Minister administering the CLM Act in relation to the development application was not a "technical breach". In the circumstances, I have declined to exercise the Court's discretion under s 25B of the LEC Act to make an order for the conditional validity of the development consent upon consent being obtained pursuant to s 2.23 of the CLM Act from the Minister administering the CLM Act on behalf of the Crown to the lodgment of the development application.

Background facts

1. The following background facts are derived from the parties' statement of agreed chronology and facts, and the documentary evidence tendered at the hearing.
2. On 19 September 1884, the land later known as "Bungendore Park" was dedicated by the Department of Lands for the purpose of public recreation (Bungendore Park). There was some irregularity in the parties' agreed facts as to the relevant parcels of land that comprised Bungendore Park. However, it appears on the evidence, and seems to be uncontroversial, that Bungendore Park was at all material times prior to April 2022 identified as Lot 701 in DP 1027107, after which it is identified as Lots 1 and 2 in DP 1276282.
3. On 29 July 1886, Bungendore Park was declared by the Governor to be a public park within the meaning of the Public Parks Act (Act No 40, 1912) (NSW).
4. On 9 September 2021, Martin Cook, director, delivery, of School Infrastructure NSW (SINSW) wrote to the Department of Planning, Industry and Environment - Crown Lands (Crown Lands) and to Queanbeyan Palerang Regional Council (Council) to notify them of the first respondent's intention to "lodge the State Significant Development Application...for the construction of the new high school in Bungendore with the Department of Planning, Industry and Environment (DPIE) on (or around) 10 September 2021". Each of Mr Cook's letters of 9 September 2021 stated that the purpose of the letter was to provide notice to Crown Lands and to Council as owners of part of the land the subject of the development application pursuant to cl 49(2)(a) of the 2000 EPA Regulation (the 9 September 2021 notices). The land the subject of the development application was said to comprise the following: 1. Part Lot 701 in DP 1027107 (Bungendore Park); 2. Lots 12 to 14 in DP 1139067 (2 to 6 Majara Street); 3. Lot 3 in DP 830878 (10 Majara Street); 4. Part Lot 701 in DP 96240 (Turallo Terrace Reserve); and 5. Unregistered subdivision plan Lot 1 in DP 1279279 (Majara Street Road Reserve) (the land).
5. On 10 September 2021, the first respondent lodged the development application (SSD 14394209) for a new high school in Bungendore.
6. On 13 September 2021, SINSW published a notice of development application for a new high school in Bungendore on the Department of Education website.
7. Between 15 and 19 September 2021, SINSW published notices of the development application for a new high school in Bungendore in the Regional Independent newspaper.

Relevant statutory provisions

1. Section 4.12(1) of the EPA Act provides: "A person may, subject to the regulations, apply to a consent authority for consent to carry out development."
2. Section 4.36 of the EPA Act provides relevantly in relation to State significant development: 4.36 Development that is State significant development (1) For the purposes of this Act, State significant development is development that is declared under this section to be State significant development. (2) A State environmental planning policy may declare any development, or any class or description of development, to be State significant development. (3) The Minister may, by a Ministerial planning order, declare specified development on specified land to be State significant development, but only if the Minister has obtained and made publicly available advice from the Independent Planning Commission about the State or regional planning significance of the development. …
3. Section 4.38(1) of the EPA Act provides in relation to consent for State significant development: 4.38 Consent for State significant development (1) The consent authority is to determine a development application in respect of State significant development by - (a) granting consent to the application with such modifications of the proposed development or on such conditions as the consent authority may determine, or (b) refusing consent to the application.
4. Clause 49 of the (since repealed) 2000 EPA Regulation provided as at the date of the decision, relevantly (emphasis added): 49 Persons who can make development applications (1) A development application may be made - (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent of the owner of that land. (2) The consent of the owner of the land is not required for a development application made by a public authority, or for a development application for public notification development, if the applicant instead gives notice of the application - (a) to the owner of the land before the application is made, or (b) by publishing a notice no later than 14 days after the application is made - (i) in a newspaper circulating in the area in which the development is to be carried out, and (ii) in the case of an application made by a public authority, on the public authority's website, or, in the case of public notification development, on the NSW planning portal. ... (4A) The consent of an owner or other person under this clause is not required to be in writing. (5) In this clause - public authority includes an irrigation corporation within the meaning of the Water Management Act 2000 that the Minister administering that Act has, by order in writing, declared to have the status of a public authority for the purposes of this clause in relation to development of a kind specified in the order. public notification development means - (i) State significant development set out in clause 5 (Mining) or 6 (Petroleum (oil and gas)) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011 but it does not include development to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974, or (ii) State significant development on land with multiple owners designated by the Planning Secretary for the purposes of this clause by notice in writing to the applicant for the State significant development.

Issue one: whether the development consent is invalid by reason of the consent of the Minister administering the CLM Act on behalf of the Crown not having been given to the lodgment of the development application

1. In relation to issue one, namely whether the development consent is invalid by reason of the consent of the Minister administering the CLM Act on behalf of the Crown not having been given to the lodgment of the development application, the applicant in its written submissions addressed a number of sub-issues: 1. whether "owner's consent" is jurisdictional and was required by the time of the decision to grant development consent; 2. whether the decision approved development in relation to dedicated Crown land comprising Lot 2 DP 1276286, being land outside the "main site" compulsorily acquired from Council or from Crown Lands; 3. whether "owner's consent" was required for the application for development on dedicated Crown land; 4. whether notices "purportedly under cl 49(2) of the [2000 EPA Regulation] ...obviate the need to comply with s 2.23(5) of the CLA Act"; and 5. the materiality of the decision having been made without owner's consent.
2. I set out the parties' submissions in relation to each of these sub-issues below.

Whether "owner's consent" is jurisdictional and was required by the time of the decision of the second respondent to grant development consent

Applicant's submissions

1. The applicant submitted that it is well established that owner's consent is jurisdictional to the grant of development consent, and that without owner's consent there is no power to grant development consent, relying in particular on the decision of Preston CJ of LEC in Al Maha Pty Ltd v Huajun Investments Pty Ltd (Al Maha) [4] and that of Tobias JA in Sydney City Council v Ipoh Pty Ltd (Ipoh). [5] It submitted that the requirement for owner's consent is "a matter of substance, rather than a mere formal requirement, and has been described as a power of veto in a number of cases". [6]
2. Further, the applicant submitted, despite cl 49 of the 2000 EPA Regulation referring to a development application being "made...with consent of the owner" and s 2.23(5) of the CLM Act referring to owner's consent to "lodgment" of the application, "there is no concept in the EPA Act framework of an 'invalid' development application, rather the application will be incomplete until such time as the owner's consent is furnished to the consent authority". [7] This means, the applicant submitted, that "the time by which the owner's consent must be furnished to the consent authority is the time of the decision to grant development consent and the lack of owner's consent can be cured at any time up to that decision. [8] " Further, "as the consent authority assesses whether any required owner's consent has been furnished at the time of its decision" to grant development consent, the applicable "general principle" is that "[a] development application is determined on the law as it stands at the time of the determination, including when it is determined on appeal to the Court". [9]

First respondent's submissions

1. The first respondent, in oral address, started with cl 49 of the 2000 EPA Regulation "because that's the critical provision here". The first respondent submitted: It's common ground in these proceedings that if all your Honour was concerned with was cl 49, clause 49(2) would apply because my client as a public authority at least complied with 49(2)(b), and owner's consent in accordance with cl 49(1) was not required. If all your Honour was concerned with was cl 49, obviously I'll come to 2.23 in a moment, but to say cl 49, an owner's consent is substantive and gives an owner a power of veto is incomplete where in a case like the present the proponent is the Department of Education and notifies in accordance with cl 49(2).
2. The first respondent submitted that the question is whether "s 2.23(5) of the CLM Act impose[s] a freestanding requirement for owners' consent to the lodgment of a development application even if the EPA Regulation does not otherwise require owners' consent", and that that question should be answered "no". The issue is one of statutory construction, and questions of statutory construction are resolved "'by applying the fundamental principles of statutory interpretation, which require reading the text of the relevant provisions in their context' and having regard to statutory purpose". [10] As to statutory purpose, both statute and the common law require that a construction that promotes the purpose of a provision must be preferred to a construction that would not promote that purpose. [11]
3. Orally, counsel for the first respondent drew attention to the title of s 2.23, "in bold", as part of the context in which the provision is to be construed. The first respondent submitted that subs (2) is "really what this section is about", and that "the way we put it is that subs (5) of 2.23 is declaring the operation of cl 49.1 of the regulations".
4. Further, counsel for the first respondent submitted orally: I understand when you look at subs (5) you might think, well it says consent is required, consent wasn't given, doesn't that mean there's a breach of 2.23(5)? I accept that the submission we are putting involves reading subs (5) in a way that may not be the way you initially read it. I fully accept that. I'm going to take your Honour to authorities that indicate that the appropriate way of approaching a clause like this is to start with matters of context, including the Parliamentary materials.

Second respondent's submissions

1. The second respondent submitted that applying well-established principles of statutory construction, the correct approach to the construction of s 2.23 of the CLM Act and its interaction with cl 49 of the 2000 EPA Regulation is as set out by the first respondent in its outline of submissions. That is, s 2.23(5) does not impose a requirement for owner's consent if such a requirement does not otherwise arise.

The applicant's submissions in reply

1. In reply, the applicant submitted that the first respondent's contention that the Court use extrinsic materials to identify the purpose of s 2.23(5) was misplaced for a number of reasons: 1. "[I]f the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust." [24] And orally, the applicant submitted that s 2.23(5) "simply says what it says, there is no ambiguity in the requirement to obtain owner's consent from the Minister for dedicated Crown land development applications to which subs (2) does not apply". 2. "Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure". [25] 3. The objective purpose of the CLM Act framework is to protect Crown lands for the benefit of the people of the State, 4. None of the circumstances in s 34(1)(a) or (b) of the Interpretation Act 1987 (NSW) (Interpretation Act) applies so as to enable consideration to be given to extrinsic materials as the first respondent is not seeking to use the materials to confirm the ordinary meaning of the text, rather "using an alleged purpose to argue the text means something other than what it says." The terms of s 2.23(5) are neither ambiguous nor obscure. Even if the Court were to take the extrinsic materials into account, it would give due regard to s 34(3) of the Interpretation Act "in that there is a public interest in being able to rely on the ordinary meaning of the text." 5. The extrinsic materials, it was submitted, "do not address s 2.23(5)". This was not in dispute. Orally, counsel for the applicant submitted that "there is no relevant legislative history of s 2.23(5) because it was a new provision" and that "references to what subs (2) deals with are not going to be useful… in ascertaining the meaning of the provision in subs (5) because it simply hasn't been addressed in the extrinsic materials". 6. Even if the extrinsic materials "had some relevance to the objective purpose" of s 2.23(5), "the statutory purpose asserted by the first respondent of 'reducing red tape'" is a selective reading of the broader purpose of the new CLM Act framework, and it is "not surprising" that the CLM Act should require owner's consent for an application to develop dedicated Crown land in the way it does in s 2.23(5) in that: 1. the Second Reading Speech recognises that management of Crown land is an "important responsibility", that the outcome of the earlier review was that the State needs "new and comprehensive Crown land legislation, and it is needed now", that the CLM Bill "creates a single, modern legislative framework which will be easier to understand and increase community involvement in major decisions on Crown land" and that the CLM Bill "effectively presumes that all Crown land is State significant"; and 2. the Explanatory Memorandum notes that the CLM Bill was "the first stage of the process of creating a new legislative regime for Crown land by making provision for substantive matters concerning Crown land".

The decision of the second respondent to approve development on dedicated Crown land, Lot 2 DP 1276282, being dedicated Crown land outside the acquired "main site"

Applicant's submissions

1. The applicant further submitted that whilst the development approved by the second respondent was "primarily" on land that had been acquired by the Minister for Education and Early Learning by compulsory process from Council or from Crown Lands at the time of the decision, it extended beyond that land to dedicated Crown land comprising Lot 2 DP 1276282. Counsel for the applicant said that there was "no dispute that Lot 2 in DP1276282 was at all material times dedicated Crown land".
2. Figure 2 in the assessment report before the second respondent in making the decision to grant development consent identified the "main site", being land that had been compulsorily acquired. The lots within the "main site" are identified in Figure 3 in that report. It was not in dispute that the "main site" had been acquired by compulsory process by the time the decision to grant development consent was made.
3. Figures 2 and 3 in the assessment report are reproduced below:
4. It is agreed that landowner's consent was not obtained in relation to the approved development on dedicated Crown land outside the acquired "main site". The land on which development is carried out, the applicant submitted, uncontroversially, citing Al Maha, is determined not only from the address and formal particulars of title shown on the development application form, but also from the documents that must accompany the development application. [27] Again citing Al Maha, if the accompanying documents reveal that part of the proposed development extends to land other than the land the address and formal particulars of title of which are shown in the development application form, that other land is also the subject of the development application. [28] Here, the applicant submitted, the same principle applies to "a development application in respect of that land [being dedicated Crown land]…for the carrying out of any development to which subsection (2) does not apply" under subsection 2.23(5) of the CLM Act. This means that the land outside the "main site" on which development was to be carried out was still land on which development was to be caried out for the purpose of the EPA Act, and the development application was "still a development application 'in respect of' dedicated Crown land for the purpose of subsection 2.23(5) of the CLM Act."

First and second respondents

1. It was an agreed fact that the development consent approved development on dedicated Crown land "outside" the acquired land; that is, outside the "main site".

Owner's consent was required for the application for development on dedicated Crown land

Applicant's submissions

1. The applicant submitted that s 2.23(1)(a) applies to dedicated Crown land, and so to Lot 2 DP 1276282. It was not contended by the first respondent that s 2.23(2) applied to deem owner's consent in relation to the works the subject of the development application outside the main site, that is works proposed to be undertaken on Lot 2 DP 1276282 including the construction of a high school, the demolition of Bungendore swimming pool and the amenities building for the oval to the south of the pool, and the relocation of the existing flood lights. Accordingly, s 2.23(5) applied to require the consent of the Minister administering the CLM Act on behalf of the Crown (as the owner of dedicated or reserved Crown land) to the lodgment of the development application in relation to Lot 2 DP 1276282. Further, s 2.23(1)(b) makes clear that the provision has effect despite anything in the EPA Act or the 2000 EPA Regulation.
2. The applicant submitted that consent was not obtained from the Minister administering the CLM Act on behalf of the Crown (that is, the Minister for Lands and Water), having regard to the following matters: (1) The environmental impact statement for the development application asserted that owner's consent was not required because the first respondent had given written notice to the owner of the relevant land, Council and Crown Lands, pursuant to cl 49(2) of the (now repealed) 2000 EPA Regulation; and (2) likewise, the development application form indicated that no owner's consent was required, and the environmental impact statement asserted that the portion of the land on former Lot 701 DP 1027101 would be acquired. That is, the decision purported to approve development on dedicated Crown land for which no owner's consent was received because the first respondent relied on a notice under cl 49(2) of the 2000 EPA Regulation. Reliance on such notices was "misconceived because s 2.23(5) of the CLM Act applied despite anything in the EPA Regulations and required owner's consent from the Minister administering the CLM Act."

First and second respondents

1. The first and second respondents' submissions in relation to the construction of cl 49(2) of the 2000 EPA Regulation and s 2.23 of the CLM Act are set out above at [49] to [68].

Whether notices "purportedly under cl 49(2)" of the 2000 EPA Regulation "obviate the need to comply with s 2.23(5) of the CLM Act"

1. Further, in relation to issue one, the applicant submitted in chief that the first respondent appears to contend that the 9 September 2021 notices and the newspaper and website notices "overcame the need for owner's consent" under s 2.23(5) of the CLM Act because the first respondent says "s 2.23(5) does not impose a duty to obtain owner's consent where the duty does not otherwise exist under cl 49" of the 2000 EPA Regulation, and "owner's consent was not required under cl 49 if notice was given under subcl (2) of that regulation".
2. The applicant submitted that such a position is misconceived because it is contrary to the plain words of the CLM Act: s 2.23 "does not say that subsection (5) only imposes a duty to obtain consent from the Minister administering the CLM Act where a duty to obtain owner's consent independently exists under the 2000 EPA Regulations". To the contrary, the plain words in s 2.23(1)(b) give s 2.23(5) effect despite anything in the 2000 EPA Regulation which includes any notice under cl 49(2) "in lieu of owner's consent."
3. The applicant submitted that there are a number of reasons why the first respondent's construction of the interaction between s 2.23 of the CLM Act and cl 49 of the 2000 EPA Regulation ought not be accepted.
4. First, the words in s 2.23(5) "comprise a complete description of an obligation (that is, to obtain owner's consent from the Minister administering the CLM Act to lodge a development application to which the provision applies) that does not separately rely on the words in cl 49(1) of the [2000 EPA Regulation], or even subsection 4.12(1) of the [EPA Act], for its operation." That is, if s 2.23(5) applies to a development application, it contains a requirement to obtain owner's consent and "the source of the obligation to obtain owner's consent is that subsection of the CLM Act, regardless of whether cl 49(1) or (2) independently require owner's consent." Consequently, it is "immaterial" whether owner's consent is required under the 2000 EPA Regulation or "even under the EPA Act" for a development application on dedicated Crown land to which s 2.23(5) applies "because the CLM Act says owner's consent is required and it applies by virtue of subsection 2.23(1) despite anything in the EPA Act or its regulations." Section 2.23(5) is "the only place (in any legislation)" where the person who needs to give owner's consent to lodgment of a development application in respect of reserved or dedicated Crown land is identified. It is not "merely confirming an existing obligation for owner's consent to be sought from the Minister administering the CLM Act, but it is a substantive provision identifying the person from whom owner's consent for dedicated or reserved Crown land on behalf of the Crown must be obtained for the purposes of [EPA Act] development applications and the circumstances in which it must be obtained."

First respondent's submissions

1. The first respondent submitted that cl 49(2) of the (since repealed) 2000 EPA Regulation lifted the requirement imposed by cl 49(1); relevantly, if the development application was made by a public authority and the applicant instead gave notice of the application in one of various ways prescribed by cl 49(2). There was no dispute first, that the first respondent gave notice under cl 49(2), and secondly, that but for any operation of s 2.23(5) of the CLM Act, the first respondent was not required to obtain "owner's consent" in respect of the development application.
2. The first respondent accepted that there was no dispute that the Minister for Lands and Water (as the Minister administering the CLM Act on behalf of the Crown) did not give consent to lodgment of the development application prior to the granting of consent by the second respondent on 24 January 2023. However, the applicant's contention that that is fatal to the validity of the consent was based on an erroneous reading of s 2.23(5). The extrinsic materials speak to the purpose of s 2.23 "with one voice and with uncommon directness". Again, the purpose of s 2.23, the first respondent submitted, is to reduce constraints on the development on Crown land, not to add additional constraints. Statutory and common law principle require s 2.23 to be construed in a manner "calculated to achieve, not subvert, that purpose." In that context, s 2.23(5) is a "for the avoidance of doubt" provision. Its purpose is to ensure that the deemed consent under s 2.23(2) does not carry a negative implication to the effect that consent is not otherwise required under the 2000 EPA Regulation. Section 2.23(5) does not impose a freestanding requirement to obtain consent where such a requirement was not otherwise imposed by the 2000 EPA Regulation.

The question of the materiality of the decision made without owner's consent

Applicant's submissions

1. In relation to materiality, the applicant submitted that the making of the decision without the consent of the Minister administering the CLM Act on behalf of the Crown was material in the relevant sense, citing Minister for Immigration and Border Protection v SZMTA (SZMTA) [36] where the High Court (Bell, Gageler and Keane JJ) at [45] considered that a breach "is material to a decision only if compliance could realistically have resulted in a different decision." Where materiality is in issue, "the question of the materiality of the breach is an ordinary question of fact" in relation to which the applicant bears the onus of proof and is to be determined by inferences drawn from evidence adduced on the application. [37]
2. The applicant also relied on the subsequent decision in MZAPC v Minister for Immigration and Border Protection (MZAPC) [38] where Gordon and Steward JJ clarified the scope of these principles in the context of a broader range of potential jurisdictional error, and said at [85] (emphasis added): 85. There are evidently two steps. First, it is necessary for an applicant for judicial review to identify an error and establish that the identified error could realistically have resulted in a different decision. This sets a low bar. It would be a mistake to describe this as an evidentiary onus. The task of demonstrating that a decision could realistically have been different had an error not occurred is better understood as directed at the quality or severity of the error and what, as a matter of logic and common sense, might have resulted. It necessarily calls for an assertion as to how a decision might have been different and an explanation as to why that is so. But because the bar is low, a court should hesitate to reject a sensible and reasonable postulation about what the result could have been. Naturally, speculation and conjecture will not be sufficient. More is needed. But it is not necessarily a task which is determined by leading evidence and by demonstrating what is possible on the balance of probabilities. That is because the subject matter of the inquiry is hypothetical; it is not a matter of proving what could have happened. Rather, the task is one of persuasion, based upon the nature of the breach and the claims that have been made, as well as logic and common sense. Put in different terms, precisely what must be shown will depend upon the nature of the alleged error. In some cases, however, an error will be jurisdictional regardless of the effect the error may have had on the conclusion of the decision-maker.

Respondents' submissions

1. The first respondent did not make any submission in relation to materiality. However, the first respondent appears to have accepted that the decision was material in the requisite sense.
2. The second respondent noted that in its amended response to summons filed on 9 June 2023, it raised that the applicant is required to demonstrate the materiality of the alleged error, and had not done so. The second respondent submitted that in its outline of written submissions, the applicant raised, for the first time, arguments as to why the alleged error is a material error such that it would be appropriate for relief to be granted in the event that the applicant is successful in relation to issue one. The second respondent said that the onus is on the applicant to establish materiality of the breach to the satisfaction of the Court.

Conclusions in relation to issue one

1. In relation to whether the development consent is invalid by reason of the consent of the Minister for Lands and Water on behalf of the Crown (as the owner of dedicated land) to the lodgment of the development application not having been obtained, I find as follows: 1. At the time of determining to grant consent to a development application for State significant development pursuant to s 4.38 of the EPA Act, evidence of the provision of consent of the Minister for Lands and Water, as Minister administering the CLM Act on behalf of the Crown (as the owner of dedicated of reserved or dedicated Crown land) to the lodgment of the development application was a jurisdictional prerequisite to the exercise of the function to determine the application. The requirement in s 2.23(5) of the CLM Act for the consent of the Minister to the making of a development application over dedicated or reserved Crown land other than in relation to the kinds of development identified in s 2.23(2) is an essential prerequisite to the determination of the application, not merely a formal requirement. As Preston CJ of LEC said in Al Maha at [79] (in a case concerning an appeal under s 97(1) now s 8.7(1) of the EPA Act in Class 1 of the Court's jurisdiction against the Council's deemed refusal of a development application): 79. The requirement in the EPA Act and the EPA Regulation that a development application contain evidence of the owner's consent to the application and the requirement in the applicable environmental planning instrument that development consent not be granted except if some condition is satisfied, are jurisdictional prerequisites that need to be satisfied in order for the consent authority (and the Court on appeal exercising the functions of the consent authority) to be able to exercise the function of determining a development application by granting consent to the development application. Under s 34(3) of the Court Act, if the jurisdictional prerequisites to the exercise of the function of determining a development application by granting consent to the development application are not satisfied, a decision to grant consent to the development application will not be "a decision that the Court could have made in the proper exercise of its functions." The Court could not make that decision. And at [95] the chief judge said: 95. The giving of owner's consent to the making of a development application with respect to the owner's land for the purpose of cl 49 of the Regulation is an essential prerequisite to, and part of the process of, a consent authority's determination of the application. That is to say, the giving of owner's consent is necessary to enable the consent authority to exercise its function to grant development consent to the application if it be minded to do so. On an appeal from a determination of the consent authority, the Land and Environment Court cannot uphold the appeal and grant development consent to the development application unless the owner's consent to the making of the application has been given: Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34(c) and (e)]. In Ipoh, Tobias JA said at [34(c) and (e)]: (c) The giving by the council of consent to the making of a development application with respect to its land for the purpose of cl 49 of the Regulation is an essential prerequisite to, and part of the process of, its determination of that application. That is to say, the giving of that consent is necessary to enable the council as the consent authority to exercise its function to grant development consent to the application if it be minded to do so. … (e) The Court cannot uphold any such appeal and grant development consent to the application unless the owner's consent to the making of the application has been given. 1. In the circumstances here, s 2.23(1) and (5) of the CLM Act and not cl 49 of the 2000 EPA Regulation is the "critical provision". Section 2.23(1) of the CLM Act provides in the plainest of terms (emphasis added) that: (1) This section - (a) applies in relation to dedicated or reserved Crown land for the purposes of the Environmental Planning and Assessment Act 1979 (and any instrument made under that Act), and (b) has effect despite anything in that Act (or any instrument made under that Act). And s 2.23(5) provides, again in the plainest of terms: (5) To avoid doubt, the Minister's consent on behalf of the Crown (as the owner of dedicated or reserved Crown land) to lodgment of a development application in respect of that land is required for the carrying out of any development to which subsection (2) does not apply. 1. It was agreed that the development application here did not come within the deeming provision in s 2.23(2) of the CLM Act. It was also agreed that the development consent approved development on dedicated Crown land comprising part of Lot 2 DP 1276282 outside the acquired Crown land (the "main site"), and that in relation to the approved development on the dedicated Crown land outside the acquired "main site" consent from the Minister for Lands and Water (as the Minister administering the CLM Act) was not obtained. It was also uncontroversial that the first respondent is a public authority within the meaning of s 1.4 of the EPA Act. 2. As a matter of statutory construction, I have determined that a general regulation authorised to be made under the EPA Act, not requiring the consent of the owner of land for a development application made by a public authority, cannot have the drastic effect of impliedly repealing the specific provisions in s 2.23(1) and (5) of the CLM Act in relation to dedicated or reserved Crown land. 3. The question is not whether "s 2.23(5) of the CLM Act impose[s] a freestanding requirement for owners' consent to the lodgment of a development application even if the EPA Regulation does not otherwise require owners' consent". Of course, the Court should strive to read the statutes harmoniously and as coherently as possible. However, it is plain that Parliament's purpose was that in the case of dedicated or reserved Crown land, the specific regime in s 2.23 of the CLM Act should have effect. The objects of the CLM Act in relation to the ownership, use and management of the Crown land of New South Wales are set out in s 1.3, relevantly in particular s 1.3(b) and (d), and the principles of Crown land management in s 1.4, relevantly in particular paragraphs (c), (e) and (f). 4. Dedicated or reserved Crown land is to be used for the limited purposes identified in Division 2.4 of the CLM Act and is subject to the general limitations on dealings with Crown land, including those specified in s 1.15 of the CLM Act. As has been consistently held, it is a constitutional principle for New South Wales that all dealings in Crown land are subject to Crown land legislation and must be made in accordance with statutory authority. Recently, in Valuer-General v Sydney Fish Market [44] Leeming JA said at [86] (Mitchelmore and Kirk JJA agreeing): 86 ...not lightly would the Court find that there has been either an implied repeal of the Crown Lands Act or a displacement of the power in s 34, which is an exception to the general prohibition in s 6 that Crown lands not be disposed of or dealt with other than in accordance with the Act. That provision has a very long history, and was regarded by Bryson J as "a constitutional principle for New South Wales": Fensom and Anor v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 at [5]; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349 at [24]. 1. It cannot be, as a matter of statutory construction, that s 2.23 of the CLM Act is "declaratory" of cl 49 of the 2000 EPA Regulation nor, as submitted by the first respondent, that the words "to avoid doubt" in s 2.23(5) of the CLM Act are intended to maintain the status quo under cl 49 of the 2000 EPA Regulation. 2. The cases relied upon by the first respondent in relation to statutory construction, principally CIC Insurance, Taylor, NH and ADCO, are leading (and binding) authorities. However, they do not assist the first respondent in the construction for which it contends here. 3. In relation to the applicant's submission that the Court would not use extrinsic materials to identify the purpose of s 2.23(5), I do not consider that the statutory history, in any event, assists the first respondent. It is true that in the Second Reading Speech for the CLM Bill, it was said that the "bill will address the delays, duplication and poor practices of Crown land management that have existed for decades". However, it is clear from the Second Reading Speech that the purpose of cl 2.23 of the CLM Bill was, in order to cut red tape, "that the lands Minister will be taken to have given consent to low impact acts on dedicated or reserved land". And further, that "[a]pplicable low impact acts are minor, such as repairs and maintenance". It was common ground that neither the Explanatory Memorandum, nor any of the extrinsic materials make reference to what was enacted as s 2.23(5) of the CLM Act. The purpose of s 2.23 was to make it "easier" to lodge applications in respect of Crown land. That was achieved by s 2.23(2) identifying the circumstances in which consent is deemed to have been given. As submitted by the applicant, the extrinsic materials do not address s 2.23(5), and, as submitted by the applicant orally, s 2.23(5) "simply says what it says, there is no ambiguity in the requirement to obtain owner's consent from the Minister for dedicated Crown land development applications to which subs (2) does not apply". 4. Nor do I accept the first respondent's submissions that "considerations of statutory context and history point against the applicant's interpretation of s 2.23(5)" and that if the applicant were correct, s 2.23, "by sidewind", introduced "a new hurdle" for development consents on Crown land. It is correct that s 2.23(5) is a "for the avoidance of doubt" provision. It is also correct, as the first respondent submitted, that the statutory expression "to avoid doubt" suggests the existence of doubt as to the meaning or operation of an existing provision, and the avoidance of doubt provision is "designed" to dispel doubt. I am comfortably satisfied that the doubt "designed" to be dispelled by s 2.23(5) is to make clear that s 2.23 of the CLM Act prevails over cl 49 of the 2000 EPA Regulation in relation to certain development applications over reserved or dedicated Crown land. As the first respondent submitted orally, ultimately, in relation to the relationship between 2.23(5) of the CLM Act and cl 49(2) of the 2000 EPA Regulation "if 2.23 is inconsistent with the [2000 EPA] Regulation 2.23 prevails". I have determined that the specific regime in s 2.23 of the CLM Act prevails over cl 49(2) of the 2000 EPA Regulation. 5. This construction is not to leave cl 49(2) of the 2000 EPA Regulation without work to do. It has work to do in respect of land that is not reserved or dedicated Crown land. Land might be the subject of a development application by a public authority by notice. However, reserved or dedicated Crown land is subject to the specific regime in s 2.23(1) and (5) in the CLM Act. 6. Accordingly, it is immaterial to the question of statutory construction that consent was not in fact obtained from the Minister for Lands and Water because the environmental impact statement for the development application asserted that owner's consent was not required because the first respondent had given written notice to the owners of the relevant land, Council and Crown Lands, pursuant to cl 49(2) of the (now repealed) 2000 EPA Regulation, and that the development application form indicated that no owner's consent was required. 7. It follows that the 9 September 2021 notices and the newspaper and website notices did not overcome the need for consent from the Minister administering the CLM Act. I accept the applicant's submission that the words in s 2.23(1)(b) - "has effect despite anything in [the EPA Act or 2000 EPA Regulation]" - are of broad import. In the context of dedicated or reserved Crown land "those words are weighty and protective of the public and Crown lands: whatever the [EPA Act] or the [2000 EPA Regulation] might provide in respect of owner's consent generally, owner's consent for reserved or dedicated Crown land is subject to section 2.23". In Vella, where in the course of considering whether a provision of this type (that had effect despite "anything" in any other provision of an Act) could override an implied statutory obligation such as a requirement to afford procedural fairness, the Full Federal Court considered the significance of the word "anything". There the Full Court said at [66] that "[t]he use, in particular, of the word 'anything' suggests that the subsection is intended to apply to any requirement imposed by any provision in the Act, even if that requirement is not express, but rather arises by implication." 8. In relation to the materiality of the breach and whether it would be appropriate to grant relief, I find that the making of the decision to grant consent to the development application without the consent of the Minister was material in the relevant sense. That is because compliance could realistically have resulted in a different decision: SZMTA at [45]; MZAPC at [85]. As Gordon and Steward JJ said in MZAPC at [85], "because the bar is low, a court should hesitate to reject a sensible and reasonable postulation about what the result could have been". I accept, as submitted by the applicant, that there was no certainty that consent would have been obtained if it had been sought before the decision, and that the Court can be satisfied that there was a realistic possibility that owner's consent "might not have been obtained". The respondents did not make any submission in relation to materiality, other than the first respondent appearing to have accepted that the decision was material in the requisite sense, and the second respondent in its amended response to summons filed on 9 June 2023, raising that the applicant is required to demonstrate the materiality of the alleged error, and had not done so. I am satisfied that the applicant has discharged its onus of establishing the materiality of the breach. 9. It follows that the grant of consent by the second respondent, the Minister for Planning, on 24 January 2023 purportedly pursuant to s 4.38 of the EPA to development application SSD-14394209 for the construction and operation of a new high school at Bungendore is invalid and, subject to my consideration of the parties' submissions in relation to s 25B of the LEC Act and the question of an order for the conditional validity of the consent, I will make a declaration to that effect.

Issue two: whether the Court should make an order for the conditional validity of the development consent pursuant to s 25B of the LEC Act

1. For the reasons set out above, I have determined that the decision is invalid by reason of non-compliance with s 2.23(5) of the CLM Act. Accordingly, it arises to consider whether the Court should make an order for the conditional validity of the development consent pursuant to s 25B of the LEC Act.

Applicant's submissions

1. The applicant submitted that the first respondent's contention, in its response to the further amended summons, that orders be made under s 25B of the LEC Act suspending the operation of the development consent the subject of the decision in whole and that it be validated upon the Minister for Lands and Water giving consent "for the purposes of cl 49(1)(b) of the [2000 EPA Regulation]" misconstrues the statutory scheme. That is because consent would need to be given for the purpose of s 2.23(5) of the CLM Act, the question of whether owner's consent is separately required under the regulation being irrelevant.
2. The applicant submitted that the general intention of s 25B is that "technical breaches should be capable of being rectified", referring to Hodgson JA at [21] in Kindimindi Investments Pty Ltd v Lane Cove Council (Kindimindi). [45] However, the provision is not limited to preliminary procedural steps. [46] In obiter, Tobias JA said in Kindimindi that the power in s 25B of the LEC Act extends to reconsideration of a development application where what is now s 4.15 of the EPA Act has not been complied with. [47]
3. The applicant also referred to a number of decisions in this Court where it has been accepted that matters that are fundamental to the granting of consent should not be the subject of s 25B orders: [48] 1. In Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) (Hoxton Park) [49] at [41], Biscoe J identified authorities where this Court at first instance had held that s 25B is not available where there has been a complete absence of power to grant a development consent. [50] 2. Preston CJ of LEC's reasoning in Al Maha at [279] to [280] was submitted to be consistent with owner's consent being a fundamental matter of a type that would not ordinarily be the subject of s 25B orders. There the chief judge (sitting in the Court of Appeal) said: 279...The Commissioner's decisions involved jurisdictional error. The Commissioner had no power to grant the development consent in the absence of Al Maha's consent to the application as the owner of land on which the development is to be carried out … 280…These jurisdictional errors were not "technical", but were fundamental to the proper exercise of the Commissioner's functions… 1. In Adams v Great Lakes Council (No 3) (Adams (No 3)) [51] Pain J at [98] considered that there was no basis for the Court to exercise its discretion under s 25B in the terms proposed by Council, the effect of which was to confirm or suspend the consent so that owner's consent could be provided. Earlier in Adams v Great Lakes Council (No 2) (Adams (No 2)) [52] Pain J at [37] had considered the lack of owner's consent to be a matter that could be cured by appropriate orders suspending the development consent to enable owner's consent to be given by the Council under s 25B, but her Honour reached this conclusion following a finding (at [36]) in that case that owner's consent was not jurisdictional. The decision pre-dated that of the Court of Appeal in Al Maha where the Court of Appeal confirmed that the absence of owner's consent is jurisdictional. [53]

First respondent's submissions

1. The first respondent submitted that if the Court concludes (as it has) that the development consent is invalid by reason of non-compliance with s 2.23(5), it should nevertheless make orders under s 25B of the LEC Act for the conditional validity of the development consent, referring to the duty of the Court in s 25E to "consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part". Counsel for the first respondent submitted orally that the section imposes a duty on the Court to consider making an order "under this division before declaring it invalid or developing it", and that "what it does indicate is that Parliament intended this to be a remedial and beneficial regime". Section 25B was submitted to be available in the absence of owner's consent. The first respondent proposed orders suspending the consent to be validated upon the giving of any requisite consent by the Minister for Lands and Water (as at the date of this decision, the Minister for Lands and Property).
2. The first respondent referred to consideration by the Court in a number of cases including, in particular, Hoxton Park at [30] to [46] and Anglican Church Property Trust Diocese of Sydney v Camden Council (Anglican Church) [58] at [116] to [122], and submitted that the purpose of s 25B is to ensure that "technical breaches should be capable of being rectified". [59] While there is some doubt as to the extent to which s 25B can be applied to save decisions infected by procedural unfairness or a considerations failure under s 4.15, it was submitted to be "clear that the section is available for jurisdictional errors arising from a failure to carry out a matter preliminary to the granting of development consent, including a failure to obtain owner's consent." [60]
3. The first respondent submitted that there is no principle, as contended by the applicant, that s 25B is not available for what the applicant describes as "matters that are fundamental to the granting of consent." Section 25B, in terms, applies where there is "invalidity arising from any steps preliminary to the granting of a development consent": s 25A(2). The cases referred to by the applicant show only instances where the discretion given by s 25B has, though the discretion exists, not been exercised. In relation to those cases, the first respondent submitted as follows: 1. In Bungendore Residents Group Inc v Palerang Council (No 4), Pain J held that s 25B "should not" be applied in the circumstances of that case, [61] not that it "could not" be applied. Subsequently, Pain J held that s 25B order was available in cases where there is an absence of owner's consent: see Adams (No 2) at [37]. 2. Contrary to the position put by the applicant, in Centro Properties v Hurstville City Council (Centro Properties), [62] McClellan CJ of LEC at [85] indicated that s 25B was available where there was a failure "to obtain the concurrence of another authority." However, his Honour declined to exercise the discretion in that case, which involved a failure by the consent authority to consider mandatory matters. In Belmore Residents' Action Group Inc v Canterbury City Council, [63] Talbot J (at [34]) adopted the reasoning in Centro Properties, and declined to exercise the discretion because the errors were in the nature of considerations errors.

Second respondent's submissions

1. The second respondent submitted that orders under s 25B to suspend the operation of the consent and specify terms of compliance which would validate the consent, rather than to declare the development consent invalid, would be appropriate in light of both the nature of the alleged breach and the nature of the development. The second respondent "broadly" agreed with the first respondent's submissions in relation to s 25B. Orally, the second respondent submitted that the Court should not make anything of the fact that "a s 25C order has not been flagged by the Minister to date in circumstances in which the Minister has clearly stated that...a s 25B approach is appropriate in these proceedings".

Applicant's reply submissions in relation to s 25B of the LEC Act

1. In reply, the applicant submitted that "far from finding that jurisdictional errors (generally) are amenable to s 25B of the LEC Act", Pepper J held in Anglican Church at [125] that "it cannot be the case that all jurisdictional error precludes the operation of s 25B of the LEC Act", [66] but declined to make a s 25B order (at [127]). Her Honour did not identify which jurisdictional error might or might not be amenable to s 25B orders.
2. Contrary to the first respondent's submission that "it is clear that s 25B is available for a failure to obtain owner's consent", the applicant submitted that it is far from clear, and even if available, there is a weight of authority that it ought not be used: 1. Section 25B has never been used to validate a development consent granted without owner's consent. The number of cases where s 25B has been used at all is "vanishingly small". 2. The first respondent refers to "technical breaches" and "steps preliminary to granting consent", but owner's consent is not technical and it is required by the time the consent authority purports to grant consent; failing this, there is an absence of power to grant consent. 3. Preston CJ of LEC in Brown v Randwick City Council (Brown) [67] held at ([87]) that where there is an absence of power to grant consent, it is inappropriate to use s 25B (in that case the application had been refused by the time the decision to grant consent was made) "because of the absence of power to grant consent, it is inappropriate to employ the power under s 25B of the LEC Act". 4. In Waverley Council v Samadi (Samadi) [68] Duggan J applied (and expanded) the reasoning of Preston CJ of LEC in Brown. Her Honour said at [255]: 255. Where the invalidity arises from an absence of power and that absence of the power is not able to be cured by the taking of steps, the discretion referred to in s 25B is not available: Brown v Randwick City Council (2011) 183 LGERA 382 at [87] as per Preston CJ. To do so is, by Court order, permitting a further breach of the provisions of the EP&A Act in an attempt to overcome an existing breach. This is not what the LEC Act (or the EP&A Act) intended by the reservation of the discretion to the Court; see by way of analogy, albeit in the context of the discretion exercised under s 9.46 of the EP&A Act, Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128 at [138]-[142] as per White JA (Beazley P and Meagher JA agreeing). 1. Applied to this case, the absence of power is not able to be cured by the orders proposed by the first respondent because owner's consent was required by the time development consent was granted: that time has passed and cannot be rectified by obtaining owner's consent after the event. Even if the Court had power to make a s 25B order, it would not be appropriate to do so in this case. 2. Pain J's decision in Adams (No 2) does not make clear that a failure to obtain owner's consent is amenable to s 25B. In Adams (No 3), her Honour declined to made s 25B orders. These cases preceded the decisions in Brown and Samadi. Further, it is not clear that her Honour in Adams (No 2) was accepting "that absence of owner's consent was jurisdictional and, even if she was, her Honour's reasoning was infected by conclusions that the Court of Appeal has since overruled". In particular, the applicant submitted that in Adams (No 2) at [26] Pain J "downplayed the significance of owner's consent" by suggesting it had been found in Botany Bay City Council v Remath Investments No 6 Pty Ltd (Remath) [69] to involve a "technical breach". In the passages in Remath identified by Pain J at [26], being those of Stein JA at [15] to [18], Stein JA did not say that there was a "technical breach", and to the contrary in Al Maha Preston CJ of LEC relied on the same passages in Remath, and concluded that the absence of owner's consent is not "merely technical". [70]

Conclusions in relation to whether the Court should make an order for the conditional validity of the development consent

1. I decline to exercise the Court's discretion to make orders suspending the operation of the development consent and that it be validated upon the Minister for Lands and Water giving consent for the purposes of s 2.23 of the CLM Act.
2. As submitted by the applicant, the general intention of s 25B is that "technical breaches should be capable of being rectified": Kindimindi at [21] (Hodgson JA). The first respondent also referred to consideration by the Court in a number of cases including Hoxton Park at [30] to [46] and Anglican Church [116] to [122], and echoed the submission that the purpose of s 25B is to ensure that "technical breaches should be capable of being rectified".
3. This Court has held that matters fundamental to the granting of consent should not be the subject of s 25B orders: Bungendore Residents Group at [42] (Pain J) and the authorities there cited, including Centro Properties at [83] to [85] (McClellan CJ of LEC). In Hoxton Park at [41], Biscoe J collected authorities where the Court has held that s 25B is not available where there is an absence of power to grant development consent. In Al Maha, Preston CJ of LEC at [279] to [280] held that the Commissioner's decisions involved jurisdictional error, the Commissioner having no power to grant development consent in the absence of consent to the development application of the owner of land on which the development was to be carried out. These jurisdictional errors were not "technical", but were fundamental to the proper exercise of the Commissioner's functions. In Brown, Preston CJ of LEC held that where there is an absence of power to grant consent, it is inappropriate to use s 25B (in that case the application had been refused by the time the decision to grant consent was made), stating that "because of the absence of power to grant consent, it is inappropriate to employ the power under s 25B of the LEC Act". In Samadi at [255], Duggan J applied (and expanded) the reasoning of Preston CJ of LEC in Brown.
4. In light of the authorities referred to above, I do not accept the first respondent's submission that the absence of owner's consent is a "technical breach". I find that the requirement of owner's consent is required at the time the consent authority purports to grant development consent. Nor do I accept the first respondent's submission that s 25B is "available for jurisdictional errors arising from a failure to carry out a matter preliminary to the granting of development consent, including a failure to obtain owner's consent." The Court is not aware of any case where s 25B has been used to validate a consent granted without owner's consent. However, even if I were satisfied that the Court has power to make orders under s 25B where the decision involves jurisdictional error, in the exercise of my discretion, I decline to make such orders for the following reasons: 1. As Kirby P said in Sedevcic at 339, the enforcement of planning law involves enforcement of a public duty imposed by law "by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment". 2. Council, which has statutory responsibility for managing dedicated Crown land outside the "main site", made multiple submissions to the Department of Planning, Industry and Environment objecting to the development application. In deciding whether to give consent, the Minister might take account of any view expressed by Council, and if Council opposes the development and satisfies the Minister that it is not appropriate to give consent, then the consent will not be "revivified". However, that is a matter which concerns the merits of the development application and upon which I ought not and do not express any view. 3. It is for the party seeking that the Court exercise its discretion to make good its discretionary considerations. It may be available to infer, as submitted by the first respondent, that the Minister for Lands and Water, being the Minister administering the CLM Act, was "plainly aware" of the development application given that his department made detailed submissions in relation to the development application. However, that is no answer to the uncontested fact that the Minister's consent was not sought or granted in relation to the dedicated Crown land outside the "main site". Likewise, the first respondent's submission that planning law includes "the remedial provision" in s 25B of the LEC Act which is intended to be available where there has been a non-compliance with planning law does not assist in the construction of the relationship between s 2.23(1) and (5) of the CLM Act and cl 49 of the 2000 EPA regulations. The first respondent, as the party seeking that the Court exercise its discretion, has not made good its discretionary considerations. 4. Finally, as submitted by the applicant in reply, the second respondent had not sought an order under s 25C, and in Hoxton Park Biscoe J held that s 25B orders are "futile" unless there is an application proposed under s 25C. Here, there is no such application, the second respondent having submitted that "a s 25C order has not been flagged by the Minister to date in circumstances in which the Minister has clearly stated that...a s 25B approach is appropriate in these proceedings".

Parties' submissions in relation to costs

1. The applicant submitted that in the event that the development consent is declared invalid and set aside, the applicant would seek to be given the opportunity to be heard on an alternative costs order. The first respondent had "no difficulty" with the applicant being heard on costs in the event that the further amended summons is dismissed. The second respondent did not make any submission as to costs.
2. Unless any party notifies the Court within 7 days of the publication of these reasons, that is by Wednesday, 20 December 2023, that it seeks to be heard on the question of costs, I will make an order that the respondents pay the applicant's costs of the proceedings.

Conclusions and orders

1. The Court makes the following declaration and orders: 1. The grant of development consent by the Minister for Planning on 24 January 2023 purportedly pursuant to s 4.38 of the Environmental Planning and Assessment Act 1979 (NSW) to development application SSD-14394209 for the construction and operation of a new high school at Bungendore (development consent) is invalid. 2. The development consent is set aside. 3. Unless any party notifies the Court within 7 days of the publication of these reasons, that is by Wednesday, 20 December 2023, that it seeks to be heard on the question of costs, the respondents to pay the applicant's costs of the proceedings.

Endnotes

1. [2023] NSWLEC 47 (Pritchard J).
2. [2023] NSWLEC 47 at [9] (Pritchard J).
3. Environmental Planning and Assessment Regulation 2021 (NSW) Schedule 6, Part 1, cl 3.
4. (2018) 233 LGERA 170; [2018] NSWCA 245 at [79] and [95] (Preston CJ of LEC, Basten and Leeming JJA agreeing).
5. (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34(c) and (e)] (Tobias JA, Hodgson and Santow JJA agreeing).
6. Hurstville City Council v Minister for Planning and Infrastructure (2012) 189 LGERA 269; [2012] NSWLEC 134 at [40] (Pain J) citing North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 477; [1996] HCA 20 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); Mulyan Pty Ltd v Cowra Shire Council (1999) 105 LGERA 26 at 35; [1999] NSWLEC 212 (Lloyd J); Becton Corporation Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 197 at [7] (Lloyd J); and IGS Enterprises Pty Ltd v Hornsby Shire Council (2008) 164 LGERA 424; [2008] NSWLEC 304 at [6] (Lloyd J).
7. Citing Al Maha at [96] (Preston CJ of LEC, Basten and Leeming JJA agreeing) citing Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300 at [35] (Spigelman CJ) and Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364 at [14] and [18] (Fitzgerald JA).
8. Citing Al Maha at [97]-[98] (Preston CJ of LEC, Basten and Leeming JJA agreeing).
9. Dubler Group Pty Ltd v Minister for Infrastructure and Planning and Natural Resources (2004) 137 LGERA 178; [2004] NSWCA 424 at [20] (Giles JA, Sheller JA agreeing at [1], Santow JA agreeing at [46]).
10. Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819; [2022] HCA 28 at [31] (Gordon, Edelman and Steward JJ) and cases cited therein; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 95 ALJR 557; [2021] HCA 19 at [15] (Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ).
11. Interpretation Act 1987 (NSW) s 33; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (McHugh, Gummow, Kirby and Hayne JJ); Mills v Commissioner of Taxation (2012) 250 CLR 171; [2012] HCA 51 at [58] (Gageler J, French CJ, Hayne, Kiefel and Bell JJ agreeing).