Shen v Parramatta City Council

8.18 Appeals concerning orders

(1) A person who is given a development control order may appeal to the Court against the order.

[…]

(3) The appeal may be made only:

(a) within 28 days after the development control order is given to the person; or

(b) […]

10. Section 20 of the Land and Environment Court Act 1979 (NSW) specifies the categories of proceedings that may be brought in that Court within Class 4. Such proceedings may broadly be described as civil enforcement proceedings. They include, at s 20(1)(e), proceedings as referred to in s 20(2). That subsection, extracted as far as relevant, is as follows:

20(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings-

[…]

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law [...]

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function

11. Subsection (3) of s 20 nominates the statutes that are within the expression "a planning or environmental law" and they include the Environmental Planning and Assessment Act.

12. In s 20(2)(a) the words "review" and "command" are apt to empower the Land and Environment Court to make orders in the nature of certiorari and mandamus. Subparagraph (c) of s 20(2) expressly enables the Land and Environment Court to grant declaratory relief in relation to orders of Council such as the Development Control Order in this case.

13. Section 71 of the Land and Environment Court Act makes this provision:

71 Proceedings in Supreme Court

(1) Subject to section 58, proceedings of the kind referred to in s 20(1)(e) may not be commenced or entertained in the Supreme Court.

14. Section 58 provides for appeals from the Land and Environment Court to the Supreme Court in relation to Class 4 proceedings. The relevant part of s 58 is in the following terms:

58 Class 4 proceedings - appeals

(1) Where a party to proceedings in Class 4 of the Court's jurisdiction is dissatisfied with an order or decision (including an interlocutory order or decision) of the Court the party may appeal to the Supreme Court against the order or decision.

15. The effect of s 71 of the Land and Environment Court Act is that the plaintiff's proceedings in this Court are incompetent and must be dismissed. This Court has no jurisdiction to undertake judicial review of the Council's decision of 6 January 2025 to issue the Development Control Order. The plaintiff’s purported claim for judicial review is forbidden to be commenced in this Court and the Court cannot entertain it. His avenue of appeal from, or review of, the decision to issue the Development Control Order is, exclusively, to the Land and Environment Court pursuant to ss 20(1)(e) and 20(2) of the Environmental Planning and Assessment Act.

16. The plaintiff submits that the Parliament of New South Wales has no power to oust what he contends is the supervisory jurisdiction of this Court with respect to the Council's exercise of statutory powers. In support of that claim he has cited Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1. In that case the High Court considered s 179 of the Industrial Relations Act 1996 (NSW), which provided that a decision of the Industrial Court was final and might not be appealed against, reviewed or quashed or called into question by any court or tribunal, including by proceeding for any relief or remedy whether by order in the nature of prohibition, certiorari, mandamus, injunction, declaration or otherwise.

17. The High Court held that s 179 precluded the Supreme Court from granting orders in the nature of certiorari for error of law on the face of the record but not for jurisdictional error. The Court said that s 179 should be construed not to extend to a decision of the Industrial Court made outside the limits of that court’s power. The High Court held that Chapter III of the Constitution would be infringed if a State Supreme Court should be deprived of supervisory jurisdiction to enforce limits on the exercise of State executive power or on the powers of inferior tribunals.

18. That holding has nothing to do with the present situation. What the plaintiff is seeking to do here is judicial review of an administrative decision of an authority, namely the Parramatta City Council. Section 71 of the Land and Environment Court Act does not take away from this Court any of its power to enforce limits on the exercise of State executive power or to supervise inferior courts and tribunals to keep them within their jurisdictional limits. The administrative decision of the Council is amenable to review at the suit of the plaintiff by the procedure in s 20 of the Land and Environment Court Act, therein referred to as an appeal. Grounds of appeal may include excess of jurisdiction by the Council. Section 58 of the Land and Environment Court Act provides for an appeal from the Land and Environment Court to this Court, whereby observance of jurisdictional limits on powers of the Council – and of the Land and Environment Court itself – may be enforced by the Supreme Court.

19. There is no attempt by the legislature, in enacting s 71, to exclude this Court's relevant supervisory control over exercise of jurisdiction by the executive or by any inferior court or tribunal. Mr Shen's argument is misconceived. The only other bases upon which he argued that s 71 did not preclude the proceeding that he has brought by his summons was an argument that there is public interest in the matter and that there has been systemic wrongdoing by Council. I do not find either of those further arguments coherent and they do not carry any weight or put in doubt the clear effect of s 71.

20. Mr Shen submits that, rather than dismiss the summons, the Court should exercise the power conferred by s 149B of the Civil Procedure Act to transfer the matter to the Land and Environment Court. The relevant part of s 149B is as follows:

149B - T****ransfer of proceedings between Supreme Court and the Land and Environment Court

(1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court.

21. There is no question of it being "more appropriate" for these proceedings to be heard in the Land and Environment Court. The proceedings are incompetent. There is no valid proceeding that would be eligible for transfer according to the sort of considerations that might govern choice of the more appropriate forum.

22. Furthermore, the summons was filed in this Court well outside the 28 day time limit prescribed by s 8.18 of the Environmental Planning and Assessment Act for commencing proceedings in the Land and Environment Court. If there exists any power in the Land and Environment Court to extend time for commencement of an appeal against a Development Control Order, that power should be exercised by that Court. It would be for that Court to determine whether it has the power to extend time and also to consider any discretionary considerations that might justify extension. It would be contrary to principle for this Court to defeat the effect of the 28 day time limit and to circumvent the Land and Environment Court's exercise of such powers to extend time as it may have, by treating the proceeding in this Court as if it were validly commenced and then purporting to transfer the matter to the Land and Environment Court as an active case.

23. No order for transfer of the proceedings to the Land and Environment Court will be made.

24. The first defendant gave an undertaking on 18 July 2025 not to take any further enforcement action under its Development Control Order in respect of the plaintiff’s property up to 31 July 2025. On 30 July 2025 the Court noted that that undertaking was continued, and it was not specified to what date. I will deal with the undertaking to bring it to an end, out of abundant caution.

25. The orders of the Court are:

26. The plaintiff's Summons is dismissed.

27. The plaintiff is to pay the defendants' costs of the proceedings.

28. The first defendant is released from its undertaking to the Court given on 18 July 2025 and subsequently continued on 30 July 2025.

**********