Snow Culture Pty Limited v Anthony Roberts Trading as Minister For Planning; Secretary, Department of Planning and Environment v Snow Culture Pty Limited
[2017] NSWLEC 125
Land and Environment Court (NSW)|2017-08-17|Before: Moore J
[2006] NSWLEC 242
Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89
Source
Original judgment source is linked above.
Catchwords
[2006] NSWLEC 242
Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89
Judgment (2 paragraphs)
[1]
EXTEMPORE Judgment
HIS HONOUR: On 4 July 2016, Snow Culture Pty Limited (Snow Culture), the Applicant in the first of the proceedings being dealt with by me, lodged a development application with the Department of Planning and Infrastructure, as it was then known. That lodgement is to be inferred from the departmental stamp appearing on the first page of the Statement of Environmental Effects dated July 2016, which is behind Tab 2 of Exhibit A in these proceedings.
On 18 October 2016, development consent was granted by the Minister for Planning's delegate, a person who held the title of Team Leader, Alpine Resorts Team of the entity by then known as the Department of Planning and Environment. The schedule appearing on the first page of that development consent lists three items as being the approved development:
1. The first is the demolition of the existing Smugglers Lodge building;
2. Second is the construction of a new lodge; and
3. Third is associated works, obviously, in conjunction with the construction of the new lodge.
The development is to be carried out at a site known as Lot 219, Corroboree Road, Smiggin Holes, Kosciusko National Park.
On the evidence of Mr Geoffrey Bennett, the Project Manager on behalf of the builder who has been employed by Snow Culture for the purposes of giving effect to the works permitted by the development consent, construction commenced shortly thereafter. Construction was anticipated to be completed by the end of May 2017.
For two reasons, explained by Mr Bennett, there were delays occasioned to the carrying out of the project. Those delays arose from the discovery of a spring during excavation works, and that spring had the effect of delaying the construction by several weeks. The second aspect of the delay was the discovery of significant, subsurface granite rock requiring to be excavated - an excavation of such rock also not being anticipated for the construction process.
Snow Culture Pty Limited v Anthony Roberts Trading as Minister For Planning;... [2017] NSWLEC 125 | Case summary | Zoe
The consequence of these impacted on the terms of the development consent, which permitted construction to continue until the end of May 2017 but, if construction was not finalised by that time, required construction to be suspended until 3 October 2017 - that is, for the duration of the ski season on the Perisher Range.
Completion was unable to be effected in its entirety, but also not to lock-up stage - lock-up stage in a building process being necessary to secure a building site, even if internal fitout has not been completed.
As a consequence of that, a nominee of the Secretary of the Department of Environment and Planning granted, on 2 June 2017, an extension of the operating period for the proposed development until four o'clock in the afternoon of 21 June 2017. The letter signed by the Director of Key Sites Assessments, as the Secretary's nominee, is behind Tab 7 of Exhibit A.
It turned out that it was still not possible for those carrying out the construction activities on the Smugglers Lodge site to complete construction to lock-up stage within that time period.
As a further consequence, on 20 June 2017, the same authorised officer granted a further extension until 30 June 2017. That further extension is behind Tab 8 in Exhibit A. It is expressly clear from the first and second paragraphs of that letter that the purpose of granting the extensions was to "enable the site to be made safe and secure within a reasonable amount of time". Clearly, that which was anticipated was that lock-up stage would be completed by 30 June 2017.
A number of conditions were imposed in that extension letter. The first was that work had to cease at four o'clock in the afternoon of 30 June 2017 and not recommence until 3 October 2017, the same recommencement period that had been anticipated both by the development consent and the earlier extension of time.
The letter then required that, by 30 June 2017, the building was to be adequately locked up; the site office, scaffolding, temporary fencing and storage containers were to be removed from the site; and barriers, whether temporary or permanent, had to be installed to balconies, verandas, or any area greater than one metre above natural ground for reasons, it is to be inferred, of safety.
There were then additional reinforcement conditions concerning access to the site, time and days of works, conditions that were in themselves entirely consistent with the earlier development consent.
On 14 July 2017, solicitors representing Snow Culture wrote to the officer who had granted the two extensions of time, noting that by that date school holidays had come to an end, and setting out what the author described as "the manner in which Snow Culture proposes to proceed".
The letter also indicated that which Snow Culture proposed to continue to carry out were internal works in a manner consistent with the conditions of the consent and the development application. Condition D3 of the development consent restricts construction works to the period within which activities on the site were permitted to be carried out within the initially defined and subsequently modified hiatus being inserted for the ski season. The letter of 14 July 2017 sets out, in a wide range of respects by a list at numbered paragraph 5 and its subparagraphs, the works that remained to be undertaken.
Less than a week later, 14 July 2017 having been a Friday, Mr Bennett and two other persons working on the project commenced activities on 19 July 2017 and undertook construction activities on 19, 20 and 21 July 2017.
On 21 July 2017, the Director of Compliance and Investigation, in her capacity as the delegate of the Minister for Planning, purported to give an order pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (the EP&A Act) requiring Snow Culture to cease construction activities on site.
On 31 July 2017, Snow Culture issued a Summons seeking judicial review of the validity of that order. That matter came before me on 2 August 2017.
On 1 August 2017, the Secretary of the Department had filed a Summons seeking an order restraining Snow Culture from carrying out construction within the meaning of condition D3(a) of the development consent until after 3 October 2017, or such further order as the Court might make.
On 4 August 2017, the Respondents in the Snow Culture proceedings filed a response to the first Summons, in which the Minister admitted that the proper procedures for the giving of the s 121B order had not been followed.
On 10 August 2017, the Minister's legal representative indicated that the order had been withdrawn and, therefore, effectively, those proceedings had been terminated.
That which remains for my consideration is, first, the extent to which that which remains to be done on the Smugglers Lodge site constitutes construction activities regulated by the development consent and, unless otherwise determined either by further modification (a course which it is reasonable to infer is not to be granted by the Department), or the exercise of a discretion by me pursuant to s 124 of the EP&A Act, permitting works that would otherwise be prohibited being undertaken on the site until 3 October 2017.
There are a number of matters that need to be considered in that regard.
First, and I expressly indicate in this decision (as I did during the course of the hearing) that that which I am about to address arising out of the letter of 14 July 2017 is not to be taken to be a criticism of the author of that letter - it is, however, to be taken as a criticism of Mr Bennett or those other persons who may have provided information concerning the status of the works on the site. Information that, as subsequently was discovered during the course of Mr Bennett's oral evidence, was both inaccurate, optimistic and misleading (whether intentionally or otherwise).
I have earlier referred to the nature of the works and activities set out in the development consent. It is necessary to contemplate what might be of the works remaining to be undertaken falling within the concept of "constructing a new lodge".
In this regard, it is to be noted that I am satisfied that a new lodge necessarily infers something that is a building sufficiently constructed to be capable of being inhabited for the purposes of which the development consent was given. Whilst there might be some minor issues as to whether, for example, door handles and the like, are part of the necessary construction activities, it is appropriate that I list the following that I am satisfied do fall within that term:
1. First, and most significantly, Mr Bennett acknowledged, in his oral evidence, that for this building, one which has a ground level, a first level, and then a loft level above that, there was no staircase between the ground level and the first level;
2. Second, that there was simply the central supporting beam upon which a staircase was to be erected between the first level and the loft level but that that staircase had not been installed and that that staircase required the addition, for balustrading purposes to comply with the National Construction Code, the installation of a glass wall adjacent to it.
Those are all clearly construction activities as envisaged by the consent.
The bathrooms on the first level are not tiled and fitted out with their necessary plumbing, including the plumbing in of toilet suites. Functional bathrooms, it seems to me, are necessary prerequisites for the construction of a ski lodge and that that tiling; such waterproofing as might remain to be undertaken; the installation and fitting out of the bathrooms (including the necessity for two of the first-level bathrooms to have holes drilled through walls to enable the effluent discharge pipes to go through into the combined system for the premises), all constitute construction activities.
Next, I am satisfied that the hanging of doors is a necessary element of construction activities in the building of a new lodge.
Further, I am satisfied that the installation of the loft windows into spaces that are currently boarded up also comprises construction activities.
The gyprocking of walls, which remains uncompleted, also constitutes construction activity for the creation of a new lodge.
There are two other matters which also fall within this category, in my view. They are the kitchen and the associated cool-room.
I am also satisfied that, for the purposes of what might (as a matter of fact) be regarded as construction activities, the installation of the kitchen cabinetry and the ceiling installation and other electrical works necessary to finalise the cool-room adjacent to the kitchen also constitute construction activities - as that term is to be interpreted for the purposes of condition D3(a) of the development consent as originally granted and as subsequently modified.
Having reached that conclusion, all of the works that I have discussed are, therefore, prima facie, not permitted to be carried out after the expiry of the extension of time granted by the delegate until the end of June 2017 and that those works are not to recommence until 3 October 2017.
The other matters that are dealt with, both in the letter of 14 July 2017 and Mr Bennett's written evidence in his affidavits of 31 July and 10 August 2017, (and as expanded upon in his oral evidence), are of largely an ancillary nature and not of any great significance when compared to the works that are properly to be understood as falling within the constraints imposed by the development consent.
Having reached that conclusion on that scope of activities requiring to be done, I am then, as I indicated to Mr Pickles SC for Snow Culture, at least with respect to the gyprocking and the staircases (with respect to which he had concurred in the conclusion that they constituted construction activities as envisaged by the development consent), required to address the question of whether as a matter of discretion I should permit the works to be carried out during the period when they would otherwise be prohibited as a consequence of the terms of the development consent.
There are a number of matters that are factual that require to be weighed before I consider the principles that are engaged in the exercise of such a discretion or the non-exercise of that discretion.
First, I have had the advantage this morning of reading the affidavit of Mr Darren Thomas, who is the Director and Secretary of Snow Culture and to hear his oral evidence concerning matters that might go to the engagement of considering and exercising discretion to permit the activities to be undertaken. Critically for these purposes, it is appropriate that I record two paragraphs contained in his affidavit of 9 August 2017; they are paragraphs 11 and 12 in the following terms:
11. I am informed by the Building Supervisor, Mr Bennett, and believe that tradesmen and others employed to complete the work are on standby and their work tools and other equipment is locked up in Smugglers Lodge.
12. Snow Culture has a genuine need to complete the internal works as soon as possible. That need arises in part because of personal commitments my wife and I have made to make the ski lodge available to a charitable organisation with which we are extensively involved. I am particularly anxious that the opportunity offered not be lost by reason of the inability to complete the interior works.
In his oral evidence this morning, Mr Thomas informed me that the charitable commitments that he and his wife had made were to an organisation known as the Starlight Foundation, an organisation well known for its public, charitable works of an entirely beneficial nature.
Mr Thomas informed me that he had hoped that he would have been able to make available for auction at an event tomorrow, 18 August 2017, and, more generally, occupancy of the Smugglers Lodge building when completed, to the Starlight Foundation at no charge. This would include permitting children with significant illnesses, including terminal illnesses, to be able to enjoy the facilities in the snowfields.
He indicated that, as he now understood the position, that chance had been lost for the 2017 ski season but that he, nonetheless, hoped that it might be possible if the works were completed to make the facility available for that purpose after the completion of the ski season but still within time when those children taking advantage of the facilities would still be able to play in the snow.
Second, Mr Thomas informed me that there were no future commercial bookings held by Snow Culture for any period post construction.
His third concern was that if continuation of construction was set aside until 3 October 2017, there was the risk that those who had been engaged for the project as tradespersons carrying out the work that remained to be done, would have moved on to other projects.
In that latter regard, although Mr Thomas's affidavit records that he had had the understanding from Mr Bennett that the tradespersons necessary to complete the fitout were on standby, it was Mr Bennett's evidence that he understood that, as I understood him, at least some of those tradespersons had moved on to other work.
It is in balancing those matters put by Mr Thomas and the submissions on behalf of Snow Culture by Mr Pickles that I must consider the matters of principle in determining whether or not to exercise my discretion and not to grant an order restraining Snow Culture from carrying out any of those construction activities until 3 October 2017.
Matters put to me by Ms Sims were that:
1. there was an informal policy of the Department that the Department - that is, of the consent authority - that works would not be permitted during the ski season;
2. at least to the extent of such evidence I have on that point, the policy was not immutable, as evidenced by the two extensions that have been granted to Snow Culture - noting, however, that those two extensions were simply for the purpose of achieving lock-up stage rather than for completion of the totality of the project.
The Applicant (that is, Snow Culture seeking the exercise of my discretion) has tendered, this morning, a revised, internal fitout, site management plan dated 15 August 2017.
It makes it clear that, assuming that there would be no work on Saturdays or Sundays, there is, on the most optimistic position as acknowledged by Mr Bennett during the course of his oral evidence, at least some eight weeks of work required to complete the internal fitout of the project to the stage where an occupation certificate might be contemplated.
In support of permitting me to exercise such a discretion, Mr Pickles has tendered a series of undertakings to the Court set out in Exhibit 2, offered as a basis upon which I might exercise the discretion. Following discussions between Mr Pickles and Ms Sims this morning, if I were to exercise that discretion, then there would be some further ameliorative aspects added to those undertakings to be incorporated in orders that I might make.
I now turn to the matters that arise concerning the exercise of discretion. The primary source of guidance on this point is the decision of the Court of Appeal in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 355. The principles set out by the (then) President appear on page 339 under the heading "Guidelines for the exercise of discretion".
The first principle is the acknowledgement that the discretion given by s 124 of the EP&A Act is a wide and comparatively unfettered one.
The second matter that arises for my consideration comes at the conclusion of the second of the principles - that is, the question of whether I should conclude that the authority - that is, in this case, the Secretary and the Secretary's delegates - delayed in dealing with the matter. There is no suggestion by Mr Pickles, as he quite properly conceded, that there has been any such delay.
Further, the question arises as to whether there will be any adverse effect on the environment, and I am satisfied that that would not be the case.
The third element is whether there might be some impact on the amenity of the locality. I am satisfied (to the extent that it is possible to do so) that that which is offered in the undertakings, both as to deliveries and access and internal activities in the premises (together with such other matters as may have been agreed to by Mr Pickles and Ms Sims), mean that it is unlikely, but not certain, that there will be no impact on the amenity of the locality.
The next matter, which is one that I am satisfied weighs quite heavily against Snow Culture in these proceedings, is the sixth of the learned President's guidelines, and that is where the application for the enforcement of the Act is made by the Attorney General or a Council - in this instance, I interpolate that the Secretary and the Secretary's delegates are to be regarded as falling within that category - a Court may be less likely to deny equitable relief than it would in litigation between private citizens.
As I put to Mr Pickles during the course of his closing submissions (although the propositions to which I referred him related to criminal proceedings in Class 5 of the Court's jurisdiction), the comments by Lloyd J in Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35] that there is significant public interest in the supporting of and promoting the adherence to the planning system in the State are apposite. That general sentiment (also in Class 5 proceedings) was repeated in the decision of Preston CJ in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [104] where his Honour refers to the need for the upholding of the integrity of the system of planning and development control.
I am satisfied that the combination of the fact that this enforcement action is being sought on behalf of the Secretary and that there is no significant demonstrated countervailing benefit of any sufficiency to warrant Snow Culture not being restrained, that the public interest in upholding the integrity of the planning system requires a restraining order be made in circumstances where I am not satisfied that:
1. there has been any significant degree of non-adherence to the policy, although an informal one, by the Department; and
2. where there is no essentially demonstrated public benefit imperative crystallised that would warrant the exercise of discretion
It follows that that Snow Culture is to be restrained from carrying out any further works until 3 October 2017.
Before making the formal order, I note that there is agreement between the parties that, in each of the proceedings, each party should bear their own costs. I also note that the effect of the withdrawal of the order purportedly made pursuant to s 121B by the Director of Compliance on behalf of the Minister means that those proceedings should be dismissed.
It, therefore, follows that the order of the Court is that:
1. Until 3 October 2017 or further order, the Respondent is restrained from carrying out construction within the meaning of condition D3(a) of Development Consent DA7743 granted by a delegate of the Minister for Planning on 18 October 2016, as modified, on land within Lot 219, Corroboree Road, Smiggin Holes, in the State of New South Wales known as Smugglers Lodge.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 September 2017