Scouts Australia v Ryde City Council

The following basal propositions may, I think, legitimately be derived from the foregoing discussion - (i.) the Court's jurisdiction is relevantly enlivened by an appeal brought pursuant to the EP&A Act, s 97 , such an appeal encapsulating the following jural facts - (a) an appeal to the Court brought by an applicant; (b) who is dissatisfied with the determination of a consent authority; (c) made with respect to the applicant's development application; and

(ii) the Court's function of "hearing and disposing (that) appeal" involves it in an original determination of the development application by exercising all of the functions and discretions that the consent authority had in respect of that development application, including the power pursuant to cl 55 of the Regulation to agree (or not to agree) to an amendment to the development application made by the applicant.

My conclusion that cl 55 of the Regulation is included in the powers relevantly available to the Court "in hearing and disposing of an appeal" necessarily involves a finding of the satisfaction or fulfilment of the second of the two conditions essential for the operation of the LEC Act, s 39(2) earlier postulated, ie the power conferred by cl 55 of the Regulation was relevantly available to the Council when it was considering the Applicant's development application.

However, this finding is arrived at, not without some difficulty, because it is to be recalled that the relevant power conferred upon a consent authority is not the power to amend a development application, but the power to agree (or not to agree) to an amendment made by the applicant. Accordingly, absent any such proposed amendment by the applicant, the question arises as to whether there is any relevant power vested in the consent authority. In the present case, where the amendment has been proposed for the first time by the Applicant only after it had appealed the Council's determination of its development application (being relevantly a deemed refusal of consent by virtue of the EP&A Act s 82), it is an obvious fact that the relevant power conferred by cl 55 of the Regulation lay dormant throughout the period that the development application was lodged with the Council until, by virtue of the EP&A Act, s 82, it was deemed to have been determined by the Council refusing development consent.

The question that arises is whether, in the light of these facts, it can be said that the Council relevantly possessed the power conferred by cl 55 of the Regulation in respect of the Applicant's development application, when factually the power lay dormant. After some hesitation, I think that the question can be answered affirmatively. The power conferred by cl 55 of the Regulation upon a consent authority is, by its nature, only a responsive power in the sense that it is only enlivened by an applicant seeking to amend the development application.

Nonetheless, the power, albeit lying dormant, is possessed by a consent authority, and it is possession of the power, rather than its activation or exercise, which is relevant to the operation of the LEC Act, s 39(2).

Since the power was relevantly possessed by (or vested in) the Council in respect of the Applicant's development application, albeit unactivated because the Applicant had not sought to amend the development application before it was determined, it is likewise relevantly available to the Court by virtue of the LEC Act, s 39(2) and where, as in the present case, the power has been activated by virtue of the Applicant's proposed amendments to its development application, the Court in hearing and disposing of "the appeal", by itself determining in the exercise of original jurisdiction whether or not to grant development consent, may exercise the available power conferred by cl 55 of the Regulation to agree (or not to agree) to the amendment of the development application.

In so concluding, I do not find it necessary to delve deeply into the power conferred upon the Court by the LEC Act, s 39(2) which has been much discussed and expounded in many decided cases. Just a few days ago, in his judgment in Gibson v Mosman Municipal Council (2001) NSWLEC 134 Talbot J cited some 21 reported cases and his judgment contains a helpful survey of many of them.

What emerges from the decided cases is that they have tended to focus attention upon the concluding words of s 39(2), namely "had in respect of the matter the subject of the appeal", as providing the solvent to the question whether a particular power is available to the Court, in any given case.

In McDougall v Warringah Shire Council (1993) 80 LGERA 151, which contains the most extensive discussion and exposition of s 39(2) to be found in the decided cases, Kirby P (as he then was) held at 154 the concluding words of the statutory provision to be "wide and ambiguous" and at 161 to be "words of extremely broad connection and wide denotation". His own impression, initially expressed at 157 and sustained in his conclusions at 161 and 162, was that "it was intended that the Land and Environment Court be placed fully in the shoes of a council at the time an application is lodged".

In respectfully adopting Kirby P's interpretive approach, it would be appropriate to conclude (as I do) that "the matter the subject of the appeal" is relevantly the Applicant's development application seeking development consent for the proposed development, recognising that a wider interpretation is possible, namely the "proposed development" cf Ross v Town and Country Planning Appeal Board at 220, where Cooke J suggested, of a similar provision in the New Zealand town planning legislation, that "the matter" was "the land" comprising the development site.

For all the foregoing reasons, I hold that the Court, by virtue of the LEC Act, s 39(2) is invested with the power conferred by cl 55 of the Regulation to agree (or not to agree) to the Applicant's proposed amendment to development application as applied for in the Applicant's Notice of Motion.

The Court has not been persuaded that the fine distinction between the power to consider the application and the so-called administrative function antecedent to the exercise of the power now raised by the council in this matter can be maintained to the extent necessary that would justify the Court not following or even distinguishing the decision by Bignold J in Ervin Mahrer. Bignold J had no difficulty in applying the broad approach taken by Kirby P in McDougall that the Court be placed fully in the shoes of the council "at the time an application is lodged" . In my view, nothing turns on the question of whether the appeal is in respect of a deemed or actual refusal of the development application. There is no cause to elaborate beyond the comprehensive analysis and reasons given by Bignold J in order to hold that the Court by virtue of s 39(2) of the Court Act is invested with the power conferred by cl 55 of the Regulation.

Whether the power is available in the circumstances of the case

Once again, the respondent raises the sceptre of the administrative difficulties raised by the recent amendments made to the Regulation, which introduced procedures relating to development applications which confer additional rights and obligations on a council in order to improve the efficiency of processing development applications and, presumably, to ensure the consent authority, the applicant and those entitled to participate in the process are fully informed. The Court is not persuaded that these changes justify divergence from the course the Court has heretofore taken in dealing with amendments made to plans, and hence development applications, following the lodgement of an appeal. So far as my experience extends, the Court has been able to facilitate the opportunity for the council to fulfil its administrative and notification obligations by giving leave to make amendments on conditions which facilitate that being done.

Finally, the council claims that the relevant power pursuant to cl 55, was exercised by it when the same proposed amendments were rejected by it in November last year. In those circumstances it is alleged the council is functus officio because the power to consent to the amendments sought has been exercised and the repository of the power no longer has any function in relation to the development application. Accordingly, the power of amendment is not a power which the council "had" in the relevant sense because it was exhausted. It is not submitted that the power to consent pursuant to cl 55 is incapable of exercise from time to time but rather that it is not a power that may be exercised after the council has determined the development application. It is suggested that cl 55 contemplates one particular decision by the council which finally disposes of the question of consent to any amendment or variation.

The Court has some difficulty in understanding this submission. If it is correct that whilever the final determination of the development application is extant the council may consent to an amendment of the application, then the same position must surely prevail following an appeal which has the effect of suspending the final determination until the Court delivers judgment. Furthermore, the Court is not persuaded that the position should be regarded differently simply because the applicant now seeks to rely upon the same set of amended plans. It is true that cl 55, on a strict reading, contemplates a particular decision by the council which disposes of the question of agreement to a particular amendment or variation. Nevertheless, if it is right, as the Court has held, that s 39(2) of the Court Act enlivens the Courts power to act in the shoes of the council for the purposes of cl 55 after the council has become functus officio in respect of the development application before it then it must be open for the Court to re-address whether an agreement should be forthcoming in respect of the amended plans having regard to the circumstances at the time the amended plans are re-submitted. The Court only assumes this power if and when the applicant re-activates the process by making a fresh approach by seeking leave of the Court pursuant to r 16(b1). It is now for the Court to consider whether, under current circumstances, the applicant should be permitted to rely on the amended plans. It is worth noting that the reason given by the council for requesting the amended plans in November 2001 explained in paragraph 3 of this judgment had regard to the circumstances prevailing at that time.

The Court has already made a brief reference to the nature of the changes. The Court is satisfied that the amendments fall within the parameters identified in Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147, unreported. The application is not, in truth, a new application. The council will be able to fulfil the obligatory and discretionary administrative functions that arise as a consequence of the Court's agreement to the amendments if the grant of leave is made subject to appropriate conditions to allow this to occur.

The Court proposes to grant leave for the applicant to rely upon amended plans now exhibited before the Court.

The parties are directed to lodge a form of appropriate orders for consideration by the Court within seven days.

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