Stannards Marine Pty Ltd v North Sydney Council

The scheme for public participation regarding designated development

1. The EPA Act radically reformed planning law in NSW, previously dealt with under the Local Government Act 1919. Amongst the reforms were new provisions increasing public involvement and participation in environmental planning and assessment in three respects: public access to environmental information, community participation in environmental decision-making and access to justice by allowing access to the newly established Land and Environment Court, which was established by the cognate Land and Environment Court Act 1979. One of the objects of the EPA Act encapsulated the purpose of this reform, originally in s 5(c), "to provide increased opportunity for public involvement and participation in environmental planning and assessment, and now in s 1.3(j), "to provide increased opportunity for community participation in environmental planning and assessment."
2. Provisions of the EPA Act increasing opportunities for public access to environmental information and for community participation in environmental decision-making include requirements for public exhibition of environmental studies and draft environmental planning instruments under Part 3, development applications and accompanying environmental impact statements for a new category of development called designated development under Part 4 of the EPA Act, and environmental impact statements for activities likely to significantly affect the environment under Part 5 of the EPA Act.
3. Provisions of the EPA Act increasing opportunities for access to justice include the innovative, open standing provision in s 123 of the EPA Act, now s 9.45 of the EPA Act, that allows any person to bring proceedings in the Court for an order to remedy or restrain a breach of the EPA Act. As Street J observed in F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 at 313, this provision not only totally removes the conventional rule of standing, but "read in the context of the objects of the Act as set down in s 5 makes it apparent that the task of the Court is to administer social justice in the enforcement of the legislative scheme of the Act. It is a task that travels far beyond administering justice inter partes." Other provisions of the EPA Act increasing opportunities for access to justice include provisions enabling persons who duly made a submission by way of objection during the public exhibition of a development application for designated development to appeal or be heard on an appeal against a determination of the development application.
4. This case concerns the provisions providing for public access to environmental information, community participation in environmental decision-making and public access to the Court regarding designated development under Part 4 of the EPA Act. To those provisions I now turn, but it was important to place the provisions in their context and purpose.
5. The EPA Act originally created two categories of development under Part 4 of the EPA Act: designated development and development other than designated development. Designated development is a class or description of development that is declared to be designated development for the purposes of the EPA Act by an environmental planning instrument or the EPA Regulation: see originally s 4(1), s 29 and s 158 of the EPA Act and currently s 1.4(1) and s 4.10(1) of the EPA Act. Development described in Part 1 of Sch 3 of the EPA Regulation is declared to be designated development: cl 4(1) of the EPA Regulation. Development of a class or description of development in Sch 3 is likely to significantly affect the environment.
6. This characteristic of designated development having a likely significant environmental impact triggers the need for a development application seeking development consent to carry out designated development to be accompanied by a more detailed form of environmental impact assessment, called an environmental impact statement, prepared by or on behalf of the applicant in the form prescribed by the EPA Regulation: see currently s 4.12(8) of the EPA Act and cl 50(1)(c) and cl 2(1) of Schedule 1 of the EPA Regulation.
7. The purpose of an environmental impact statement for designated development is not merely to inform the consent authority who will determine the development application, but also to inform the public and enable public involvement and participation in that decision-making. This facilitates two aspects of the object of the EPA Act of providing increased access to environmental information and increased community participation in environmental decision making.
8. To achieve these aspects of the object, the development application and accompanying environmental impact statement for designated development are required to be publicly exhibited. Part 1 of Schedule 1 of the EPA Act currently sets out the mandatory requirements for community participation by planning authorities (which include a planning panel such as the Sydney North Planning Panel) with respect to the exercise of relevant planning functions (which include development consent functions under Part 4 of the EPA Act): s 2.22(1) of the EPA Act. Clause 8 of Schedule 1 of the EPA Act fixes a minimum public exhibition period for an application for development consent for designated development of 28 days. The development application is not to be determined until after that minimum period of public exhibition: cl 14 of Schedule 1 to the EPA Act.
9. The public may make submissions with respect to the development application for designated development during the minimum period of its public exhibition: cl 15(1) of Schedule 1 to the EPA Act. Any person who has made a submission under Schedule 1 to the EPA Act by way of objection to a development application for consent to carry out designated development becomes an "objector": see definition of "objector" in s 1.4 of the EPA Act. A person's status as an objector enlivens entitlements to appeal or to be heard on an appeal against determinations of a consent authority of the development application for designated development, thereby facilitating the third aspect of the object of the EPA Act of increasing public access to the Court.
10. The EPA Act makes provision for notification of the determination of the development application for designated development. Notice of the determination of the development application is required to be given, including to the applicant and, in the case of a development application to carry out designated development, to each person who made a submission under Schedule 1 of the EPA Act: s 4.18(1)(b) and cl 19 and cl 20 of Schedule 1 of the EPA Act and cl 100 of the EPA Regulation. The consent authority, within 14 days after the date of determination of the development application, is to publish the notice of determination on the NSW planning portal and send the notice of determination to a person to whom s 4.18(1)(b) of the EPA Act requires the notice to be given, and a person who made a submission under the EPA Act in relation to the development application (whether or not it involved designated development): cl 102(1) of the EPA Regulation.
11. This notification of the determination of the development application for designated development starts the time period within which appeals under s 8.7 and s 8.8 against the determination of the development application can be made.
12. Under s 8.7(1) of the EPA Act, an applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. The applicant may be dissatisfied with a determination to refuse consent to the development application but may also be dissatisfied with a determination to grant consent subject to conditions with which the applicant is dissatisfied. An appeal under s 8.7(1) may be made, currently within 12 months, but after 25 March 2022, within 6 months, after the date the decision appealed against (the determination of the development application) was notified or registered on the NSW planning portal or the date of deemed refusal: s 8.10(1) of the EPA Act.
13. Under s 8.8(2) of the EPA Act, a person who duly made a submission by way of objection during the public exhibition of the application for development consent for designated development (an objector), and who is dissatisfied with the determination of the consent authority to grant consent to the application, either unconditionally or subject to conditions, may appeal to the Court against the determination: s 8.8(2) of the EPA Act. This right of appeal of an objector under s 8.8(2) can only be exercised if a determination of an application for development consent for designated development is a determination to grant development consent, either unconditionally or subject to conditions, and not a determination to refuse development consent: s 8.8(1) of the EPA Act.
14. An appeal under s 8.8(2) may be made, currently within 56 days, but after 25 March 2022, within 28 days after the date the objector is notified of the decision appealed against (the determination of the development application): s 8.10(2) of the EPA Act.
15. There is, therefore, the potential for separate appeals to be brought to the Court against a determination of an application for development consent for designated development by both the applicant for development consent and by objectors, but only if the determination made by the consent authority is to grant consent. A determination to grant consent, either unconditionally or subject to conditions, entitles not only an objector to appeal under s 8.8(2), but also the applicant for development consent to appeal under s 8.7(1) if the applicant is dissatisfied with the determination of the application by the grant of consent subject to conditions with which the applicant is dissatisfied. In that circumstance, an appeal by an applicant for consent under s 8.7(1) cannot be heard until after the expiration of the period within which an objector may appeal to the Court under s 8.8(1): s 8.7(3) of the EPA Act. If there are separate appeals by an applicant for consent under s 8.7(1) and an objector under s 8.8(2), with respect to the determination of an application for development consent, the appeals are, as far as practicable, to be heard together: s 8.15(1) of the EPA Act.
16. If, however, the determination is to refuse consent, only the applicant for development consent would be entitled to appeal under s 8.7(1) and an objector would not be entitled to appeal under s 8.8(2) as the section would not apply (see s 8.8(1) of the EPA Act).
17. The EPA Act requires the consent authority that determined a development application for designated development to give notice of any appeal under s 8.7 or s 8.8 of the EPA Act to various people and authorities, depending on who makes the appeal. If an objector appeals under s 8.8(2) against the determination of the consent authority to grant consent, notice is required to be given by the consent authority (see s 8.12(3) of the EPA Act) to the applicant for development consent (s 8.12(1)(b)) and any other objector (s 8.12(1)(a)). If an applicant for development consent appeals under s 8.7(1) against the determination of the consent authority, whether to refuse consent or to grant consent subject to conditions with which the applicant is dissatisfied, notice is required to be given by the consent authority to an objector: s 8.12(1)(a) of the EPA Act.
18. The giving of this notice to an objector of an appeal by an applicant for development consent under s 8.7(1) entitles the objector to make application to the Court, within 28 days after the notice is given, to be heard at the hearing of the appeal by the applicant for development consent: s 8.12(3) of the EPA Act.

Stannards' argument that the objectors are not entitled to be heard

1. Stannards notes that the entitlement under s 8.12(3) of the EPA Act of a person to be heard at the hearing of its appeal depends on the person being given a notice under s 8.12(1): "Anyone who is given any such notice of appeal is… entitled to be heard at the hearing of the appeal if not already a party to the proceedings." The reference to "any such notice of appeal" is a reference to the notice of an appeal required to be given under s 8.12(1).
2. Section 8.12(1) identifies the persons "entitled to be given notice of an appeal made under this Division". Stannards' appeal under s 8.7(1) against the determination of its development application is an appeal made under "this Division", being Division 8 of the EPA Act. The relevant category of persons in s 8.12(1) of the EPA Act who are entitled to be given notice of the appeal is in paragraph (a): "an objector, in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division."
3. Stannards seizes upon the concluding phrase "in respect of which the objector has a right of appeal under this Division". Stannards notes that the only right of appeal the objector has under the Division is under s 8.8(2) to appeal against a determination of an application for development consent for designated development by the grant of development consent.
4. Stannards contends that none of the objectors has a right of appeal under s 8.8(2) of the EPA Act for the simple reason that the determination of the consent authority was not to grant consent but rather was to refuse consent to the development application. Stannards contends that an objector only has a right of appeal under s 8.8(2) if two conditions are satisfied: first, the person must be an objector as defined, being a person who duly made a submission by way of an objection during the public exhibition of the application for development consent, and second, the determination of the consent authority of the application for development consent is to grant development consent. In this case, the seven persons who have applied to be heard at the hearing of the appeal are objectors, as defined, but the determination of the consent authority was to refuse development consent, not to grant development consent. None of the objectors therefore had a right of appeal under s 8.8(2). In this circumstance, Stannards argues, none of the objectors was an objector entitled under s 8.12(1)(a) to be given notice of Stannards' appeal. As the objectors were not persons entitled to be given such notice of appeal, they could not be entitled under s 8.12(3) to be heard at the hearing of the appeal.
5. Stannards relied on the recent decision of Pepper J in Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 20 (Barr Property) that an objector to a development application that is determined by the refusal of development consent is neither entitled under s 8.12(1) to be given notice of an appeal by an applicant for development consent against such a determination to refuse development consent nor entitled under s 8.12(3) to be heard at the hearing of such an appeal: [35]-[42].

The Council's and objectors' arguments that the objectors are entitled to be heard

1. The Council contests Stannards' construction of s 8.12(1) of the EPA Act and submits that Barr Property, insofar as it decided in favour of Stannards' construction, was wrongly decided.
2. The Council notes that the circumstance in s 8.12(1)(a) in which notice of an appeal is to be given to an objector is "in the case of an appeal by an applicant concerning an application for development consent in respect of which an objector has a right of appeal under this Division". The reference in this phrase to a particular type of application for development consent is intended to distinguish between the classes of application in which an objector has a right of appeal and those in which an objector does not.
3. The Council suggests that one reason for this choice of language in s 8.12(1)(a) might be that there are some applications for development consent for designated development for which rights of appeal have been removed. An objector's right of appeal under s 8.8(2) can be "cut off" if the Independent Planning Commission makes a decision as consent authority in relation to the carrying out of any development after a public hearing: s 8.6(3)(a) of the EPA Act. Section 8.6(3)(a) provides that "there is no right of appeal under this Division" against such a decision. This explains the choice of language in s 8.12(1)(a) of "in respect of which an objector has a right of appeal under this Division". An objector will have "no right of appeal under this Division", being an appeal under s 8.8(2), against a decision referred to in s 8.6(3)(a). It would not have been appropriate to have substituted in s 8.12(1)(a) the words "designated development" for the phrase "in respect of which the objector has a right of appeal under this Division", because that would appear to confer an entitlement to notice and a right to participate in a hearing of an appeal where any right of appeal has been displaced.
4. The Council submits that the use of the phrase "an application for development consent" throughout s 8.12(1), including in paragraph (a), reinforces that it is the class of application for development consent that is the correct point of reference for ascertaining the entitlement of a person to be given notice of an appeal, rather than the determination of the development application. In s 8.12(1)(a), the circumstance in which an objector is entitled to be given notice of an appeal by an applicant for development consent turns on whether the application for development consent, which is the subject matter of the appeal, is an application in respect of which the objector has a right of appeal under s 8.8(2), not whether or how that development application is determined. The phrase "has a right of appeal" is used in the sense of "may appeal".
5. This is the same sense in which s 8.7(3) refers to an objector's right of appeal under s 8.8(2). Section 8.7(3) prevents the Court from hearing an appeal under s 8.7(1) by an applicant for development consent "to carry out designated development in respect of which an objector may appeal under this Division" until after the expiration of the period within which an objector "may appeal to the Court". The purpose of imposing this statutory stay is so as not to frustrate an objector's right of election to either appeal under s 8.8(2) or to participate under s 8.12(3). The language of s 8.7(3) reflects s 8.12(1)(a) and uses the expression "in respect of which an objector may appeal" to define the kind of appeal to which the subsection applies, being an appeal relating to a particular kind of application for development consent to carry out designated development.
6. The Council submits that from its inception the EPA Act has taken a different approach to appeal rights concerning designated development. An objector, as defined, could appeal against a determination of a consent authority to grant consent to designated development (under the former s 98(1) and the current s 8.8(2) of the EPA Act) or apply to be heard at the hearing of an appeal by the applicant for development consent (under the former s 97(2), then s 97(4), then s 97A(4) and the current s 8.12(3) of the EPA Act). An objector's appeal rights in respect of designated development are made expressly available irrespective of whether it is an objector or the applicant for development consent who commences the appeal. The reason is that, as designated development has a greater potential for significant environmental impacts and there is a greater need for community participation, Parliament considered it desirable that objectors have direct rights of participation in appeals as distinct from merely being called by a consent authority as witnesses in any appeal by an applicant for development consent.
7. The Council traced the legislative history of an objector's appeal rights from the making of the EPA Act up to the current provisions. Although there have been changes in form and numbering, there have been no changes in substance to an objector's appeal rights. The Council disputes Stannards' submission that any of the legislative amendments curtailed an objector's appeal rights so as not to entitle an objector to be given notice of, and to be heard at the hearing of, an appeal by an applicant for development consent against a determination of a consent authority to refuse development consent. Had such a fundamental change to an objector's appeal rights been intended, such intention would be expected to be clearly manifested in unambiguous language: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [19]-[20]. Although the High Court was there considering common law rights, the principle has application to statutory rights that are to be curtailed by amending legislation. In the present case, the Council submits, the Court is entitled to take into account the silence of Parliament as pointing to the absence of any intention to fundamentally alter objector rights of appeal and participation under the EPA Act.
8. The Council submits that Stannards' construction of s 8.12(1)(a) does not promote the express object of the EPA Act "to provide increased opportunity for community participation in environmental planning and assessment": s 1.3(j). To the contrary, it would curtail an objector's rights to participate in an appeal by an applicant for development consent. This is a further reason why the Council's interpretation should be preferred: s 33 of the Interpretation Act 1987.
9. The Council submits that there is no logic in Stannards' construction of s 8.12(1)(a). If the subject matter of the appeal (designated development) is of sufficient importance and potential consequence to confer on an objector a right of appeal against a determination to grant consent, the same importance and potential consequence attends an appeal commenced by an applicant from a refusal of development consent. The significance of designated development to objectors remains the same, irrespective of who commences the appeal, or the idiosyncratic circumstance of whether an application has or has not in fact been determined at all, or determined by the grant or by the refusal of development consent.
10. The Council submits that the decision in Barr Property is wrong for the reasons it has advanced. The decision also departs from the contrary decision in The Next Generation Pty Ltd v Independent Planning Commission [2020] NSWLEC 70 (The Next Generation) but without any consideration of the principle of judicial comity. The point given in Barr Property for distinguishing The Next Generation is unconvincing. The proper construction of s 8.12(1) does not turn on whether in fact a notice of an appeal has or has not been given.
11. The Owners of Strata Plan 49674, the Owners of Strata Plan 49675 and Mr Blombery contend that the notice of appeal given to them by the Council under s 8.12(1) was not issued in error. The three objectors submit that whether an objector is entitled to be given notice under s 8.12(1)(a) does not depend on whether the objector is able to exercise the right of appeal that the objector has under s 8.8(2), only that it has such a right of appeal. The three objectors note that under Stannards' construction of s 8.12(1)(a), the relevant consent authority could only give the required notice of appeal to a person under s 8.12(1) after the consent authority determines whether that person has a right of appeal under s 8.8(2). This would require the consent authority to make a determination of whether, first, the person is an objector as defined in s 8.8(2) and, second, the person is "dissatisfied with the determination of the consent authority to grant consent". The first test is easy enough but the second test is not. In the absence of a statement by the person that it is dissatisfied with the determination of the consent authority to grant consent, the consent authority has no way of knowing whether both tests are met for that person or not.
12. The three objectors submit that this reveals the error in Stannards' construction of s 8.12(1)(a). It does not require a determination by the consent authority that a person be able to exercise a right of appeal under s 8.8(2), but merely that the person has a right of appeal under s 8.8(2). The person will have a right of appeal under s 8.8(2) if the person is an objector, as defined, to the development application for development consent for designated development that is the subject of the appeal by the applicant for development consent.
13. The three objectors also submit that it is not a matter for the consent authority to determine a person's right to appeal. That is a matter for the Court. A decision by a consent authority to issue a notice to a person under s 8.12(2), who ultimately is found by the Court not to have a right of appeal, does not invalidate the notice. Here, as a matter of fact, the Council did give notices under s 8.12(2) to each of the three objectors. Having been given such notices of appeal, the three objectors are entitled under s 8.12(3) to apply, within 28 days after being given the notice, to be heard at the hearing of the appeal. The three objectors did so. That is all that was required.
14. The three objectors also submit that the decision in Barr Property was wrong, while the decision in The Next Generation was correct and should be followed.
15. Another objector, Waverton Public Lands and Water Protection Association Inc (the Association), submits that s 8.12(2) creates an obligation on a consent authority to give notice of an appeal to the persons, and in the circumstances, stated in s 8.12(1). Under s 8.12(1)(a), the person is "an objector" and the circumstances are "in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division". The person will be "the objector" if the person is one who satisfies the opening words in s 8.8(2) of being "a person who duly made a submission by way of objection during the public exhibition of the applicant for development consent (an objector)". The subsequent words of s 8.8(2) do not qualify who is an objector for the purposes of s 8.12(1)(a). The circumstances required by s 8.12(1)(a) will be met if the appeal by the applicant for development consent is concerning "an application for development consent" in respect of which the person who is an objector has a right of appeal. The only application for development consent in which a person who is an objector has a right of appeal is an application for designated development. Section 8.8(2) gives objectors, as defined by the opening words of s 8.8(2), a right of appeal with respect to designated development.
16. The Association submits that, once a person is a person who is entitled to be given notice of an appeal, and is given such notice of appeal, the person is entitled to be heard at the hearing of the appeal: s 8.12(3). No question arises, such as would arise if application were to be made under s 8.15(2), of whether the person would have useful material to provide to the Court or can otherwise assist the Court on the appeal.
17. The Association submits that Stannards' construction of s 8.12(1) is contrary to the legislative scheme and history of the EPA Act. The legislative scheme of the EPA Act for merit appeals concerning designated development would lack coherence if the rights of an objector with respect to an application for development consent for a designated development diverge substantially between an objector appeal as permitted by s 8.8(2), where an objector is the applicant party, and a proponent appeal as permitted by s 8.7(1), where the proponent is the applicant party. The analysis of Pain J in The Next Generation correctly sets out the nature of objector rights in merit appeals and the importance of those rights. To the contrary, the decision in Barr Property is wrong and should not be followed.

The objectors are entitled to be heard on the appeal

1. Stannards' construction of s 8.12 of the EPA Act, and the decision in Barr Property on which this construction is based, are clearly wrong. The objectors are persons entitled under s 8.12(1)(a) to be given notice of Stannards' appeal under s 8.7(1) of the EPA Act and the Council was correct in giving notice under s 8.12(1) to them. The objectors are also persons who are entitled to be heard at the hearing of Stannards' appeal, provided they made application to the Court within 28 days after the notice was given.
2. As I have earlier described, the scheme of the EPA Act, from its outset in 1979, is to control differently development that is designated development from development which is not. A development application for designated development needs to be accompanied by the more detailed form of environmental impact assessment of an environmental impact statement. The development application and environmental impact statement for the designated development must be publicly exhibited. Any member of the public may make a submission by way of objection during the public exhibition of the development application for designated development, in which event the person becomes an objector for the purposes of the EPA Act.
3. That status as an objector entitles the person to appear in any appeal against the determination of the consent authority of the application for development consent for designated development. The nature of the objector's appearance in the appeal differs depending on the determination of the consent authority of the development application.
4. If the determination is to grant consent, the objector may appeal in their own right against the determination to grant consent to the development application for designated development. If the determination is to refuse consent, the applicant for development consent may appeal against the determination of the development application for designated development and the objector may apply to be heard at the hearing of this appeal by the applicant for development consent. Either way, an objector is entitled to be heard on an appeal against a determination of a development application for designated development.
5. This legislative scheme controlling the process for making an application for development consent for designated development, determining such a development application, and appealing a determination of such a development application has remained relevantly the same from the enactment of the EPA Act. I will focus on the twin entitlements of an objector to appeal or to be heard on an appeal against the determination of a development application for development consent for designated development.
6. As made, s 98(1) of the EPA Act entitled an objector to appeal: "An objector who is dissatisfied with the determination of a consent authority to grant consent to a development application either unconditionally or subject to conditions may, within 28 days after the date on which notice of the determination was given under section 95, and in accordance with rules of court, appeal to the Court."
7. Section 97(2) entitled an objector to be heard at the hearing of an appeal by the applicant for development consent: "Where an appeal has been made under subsection (1) relating to a development application for consent to carry out designated development, each objector to that application shall be given notice by the consent authority of that appeal and shall, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, be entitled to be heard at the hearing of the appeal as if he were a party to the appeal."
8. The provisions for appeals were amended by the Environmental Planning and Assessment Amendment Act 1997. Section 98 continued to provide for an appeal by an objector, although in slightly different language. Section 98(1) as amended provided: "An objector who is dissatisfied with the determination of a consent authority to grant consent to a development application for designated development (including designated development that is integrated development) either unconditionally or subject to conditions may, within 28 days after the date on which notice of the determination was given in accordance with the regulations, and in accordance with rules of court, appeal to the Court."
9. The entitlement of an objector to be heard on an appeal by an applicant for development consent now was given by s 97(4), although in essentially the same language: "If an appeal has been made under this section relating to a development application for consent to carry out designated development, each objector to that application is to be given notice by the consent authority of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if he, she or it were a party to the appeal."
10. The provisions for appeals were again amended by the Planning Appeals Legislation Amendment Act 2010. The provision in s 98(1) for an appeal by an objector remained the same but the provision dealing with the entitlement of an objector to be heard on an appeal by an applicant for development consent was amended. The former s 97(2) and later s 97(4) had dealt with both the entitlement of an objector to be given notice of an appeal by an applicant for development consent and the entitlement of an objector to be heard at the hearing of such an appeal. The amendment in 2010 separated these two entitlements, the new s 97A(1) dealing with the entitlement to be given notice of an appeal and the new s 97A(4) dealing with the entitlement to be heard at the hearing of such an appeal: "(1) The consent authority must give notice of an appeal under section 97, 97AA or 98: (a) to an objector, in the case of an appeal concerning a development application in respect of which the objector may appeal under section 98, or (b) to the relevant Minister or public authority, in the case of an appeal concerning a development application in relation to which the concurrence of a Minister or public authority is required under this Act, or (c) to the relevant approval body (within the meaning of Division 5), in the case of a development application to carry out integrated development that involves the approval body. … (4) A person or body who is given notice of an appeal under this section is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if the person or body were a party to the appeal."
11. These provisions for appeals were amended by the Environmental Planning and Assessment Amendment Act 2017 to become the current form. The former s 98(1) became s 8.8(1) and (2) and the former s 97A(1) and (4) became s 8.12(1) and (3), with some minor changes of language being made. The current s 8.8(2) and (2) provide: "(1) This section applies to the determination of an application for development consent for designated development (including any State significant development that would be designated development but for section 4.10(2)), being a determination to grant development consent, either unconditionally or subject to conditions. (2) A person who duly made a submission by way of objection during the public exhibition of the application for development consent (an objector) and who is dissatisfied with the determination of the consent authority to grant consent may appeal to the Court against the determination.": s 8.8(1) and (2).
12. The current s 8.12(1) and (3) provide: "(1) The following are entitled to be given notice of an appeal made under this Division (a) an objector, in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division, (b) an applicant for development consent and the consent authority, in the case of an appeal under this Division by an objector concerning the application for development consent, (c) a Minister or public authority, in the case of an appeal concerning an application for development consent in respect of which the concurrence of the Minister or public authority is required under this Act, (d) the relevant approval body (within the meaning of Division 4.8), in the case of an application for development consent that involves the approval body. … (3) Anyone who is given any such notice of appeal is, on application to the Court within 28 days after the notice is given, entitled to be heard at the hearing of the appeal if not already a party to the proceedings.": s 8.12(1) and (3).
13. As can be seen, although there have been changes in the form of these provisions, there have been no changes in the substance of these provisions. The twin entitlements of an objector, first, to appeal against a determination to grant consent to designated development and, secondly, to apply to be heard at the hearing of an appeal by an applicant for development consent, have remained constant.
14. As Pain J correctly observed in The Next Generation at [50], if the construction of s 8.12 advanced by Stannards and accepted in Barr Property were to be correct: "the change in the statutory scheme as a result of the EPA Amendment Act will be the first time since designated development was introduced at the outset of the EPA Act in 1979 that objectors to such development have not been able to participate as a party in a proponent appeal. The original EPA Act gave objectors entitlement to be heard at the hearing of the appeal as if a party to the appeal in s 97(2), then s 97(4) which became s 97A(4) by virtue of the Planning Appeals Legislation Amendment Act 2010 (NSW). A significant reduction in an important appeal right in an Act in which third party participation in planning appeals has been a hallmark should not be lightly inferred in the absence of clear Parliamentary intention (as is the case here)."
15. The language of s 98 and s 97(2) of the EPA Act as made was clear in giving objectors the twin entitlements to appeal if the determination is to grant consent and otherwise to apply to be heard at the hearing of an appeal by an applicant for development consent. Nothing in the legislative amendments in 1997, 2010 or 2017 altered these twin entitlements of objectors. If the legislature had intended to curtail or abrogate either of these twin entitlements of objectors, such intention would need to be expressed "with irresistible clearness": Al-Kateb v Goodwin at [19].
16. As Pain J also noted in The Next Generation at [51], there are many cases in which objectors, exercising their entitlement under s 97(2), s 97(4) s 97A(4) or s 8.12(3), as then applicable, have appeared at the hearing of an appeal by an applicant for development consent for designated development. This includes examples of the exercise of s 97(2), such as Golden v Coffs Harbour City Council (1991) 72 LGRA 104 at 106; the exercise of s 97(4), such as Alexandria Landfill Pty Ltd v Sydney City Council [2004] NSWLEC 639 at [6] and CEAL Limited v Minister for Planning (2007) 159 LGERA 232; [2007] NSWLEC 302 at [4]; the exercise of s 97A(4) such as Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158 at [5]; and the exercise of s 8.12(3) in The Next Generation at [63].
17. Until the decision in Barr Property, no issue has ever been raised that objectors had no entitlement to so appear in an appeal by an applicant for development consent because their entitlement is limited to the right of appeal under s 98(1) or s 8.8(2), as then applicable, against a determination to grant consent to a development application for designated development.
18. Stannards' argument misconstrues the text and context of s 8.12(1) and (3). It may be accepted that, under s 8.12(3), the person who is "entitled to be heard at the hearing of the appeal" is "anyone who is given any such notice of appeal". The words "such notice of appeal" in s 8.12(3), and also in s 8.12(2), refer to the "notice of an appeal" in s 8.12(1). One of the categories of persons to whom "notice of an appeal" is to be given is a person meeting the description in paragraph (a) of s 8.12(1).
19. The description in paragraph (a) of s 8.12(1) commences with an identification of the category of person of "an objector". That is a defined term. An objector is defined in s 1.4(1) to mean "a person who has made a submission under Schedule 1 by way of objection to a development application for consent to carry out designated development".
20. Schedule 1 to the EPA Act specifies the provisions relating to public exhibition of an application for development consent for designated development and the making of submissions with respect to such application. To be "a person who has made a submission under Schedule 1", a person needs to make a submission by way of objection to the development application during the minimum period of the public exhibition of the development application : cl 15 of Sch 1 to the EPA Act. This is corroborated by the language in s 8.8(2) of a person needing to have "duly made a submission by way of objection during the public exhibition of the application for development consent" in order to be an objector.
21. The description that follows this identification of "an objector" in s 8.12(1)(a) addresses the nature and circumstances of the appeal in respect of which notice of an appeal is to be given to that category of person, namely "in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division".
22. The appeal referred to in s 8.12(1)(a) EPA Act is an appeal by an applicant for development consent against a determination of the application for development consent. This appeal is under s 8.7(1) of the EPA Act. The right of appeal under s 8.7(1) is able to be exercised by every applicant for development consent who is dissatisfied with the determination of the development application for any development, and not only development declared to be designated development. The entitlement to be given a notice of appeal is limited, however, to persons who are "an objector", being a person who duly made a submission by way of objection during the public exhibition of the application for designated development. As a consequence, greater specificity was needed to identify the particular type of appeal in respect of which notice of appeal needs to be given.
23. This is achieved by the qualifying phrase in s 8.12(1)(a) describing the appeal by an applicant, in respect of which notice of appeal is to be given, as needing to be "concerning an application for development consent in respect of which the objector has a right of appeal under this Division". The word "concerning" connects "an appeal by an applicant" with "an application for development consent in respect of which the objector has a right of appeal under this Division". The only type of application for development consent "in respect of which the objector has a right of appeal under this Division" is an application for development consent for designated development. The only right of appeal in the Division afforded to an objector is that under s 8.8(2) of the EPA Act. This appeal is against a determination of a consent authority to grant consent to a development application for development consent for designated development.
24. The qualifying phrase in paragraph (a) of s 8.12(1), therefore, limits the class of appeals by an applicant, in respect of which notice of an appeal is to be given, to appeals by an applicant against a determination by a consent authority of a development application for development consent for designated development. Only such an application for development consent for designated development is one "in respect of which" an objector can have a right of appeal under the Division.
25. The qualifying phrase in s 8.12(1)(a) also operates to apply this generic category of "an objector" to the facts of the particular application for development consent for designated development and the particular persons who duly made submissions by way of objection to that application. The category of person in paragraph (a) who is entitled to be given notice of an appeal is of "an objector" but the qualifying phrase operates to ensure that the particular person is in fact an objector to the particular application for development consent for designated development. This is achieved by asking whether the person is one who "has a right of appeal under this Division". The only right of appeal under the Division for an objector is under s 8.8. Section 8.8(2) limits the right of appeal to "a person who duly made a submission by way of objection during the public exhibition of the application for development consent (an objector)". This is the check that the qualifying phrase in paragraph (a) of s 8.12(1) requires. In order to be entitled to be given notice of an appeal by the applicant for development consent, the person must be a person who duly made a submission by way of objection during the public exhibition of the application for designated development that is the subject of the appeal by the applicant for development consent. If the person is such a person, the person can be said to be a person who has a right of appeal under this Division (under s 8.8(2)).
26. However, even if a person has duly made a submission by way of objection to the particular application for development consent for designated development, so as to be "an objector", the right of appeal under s 8.8(2) that such a status would ordinarily enable might have been removed. Section 8.6(3)(a) of the EPA Act provides that "[t]here is no right of appeal under this Division" against "a decision of the Independent Planning Commission as consent authority under this Act in relation to the carrying out of any development that is made after a public hearing by the Commission into the carrying out of that development." Hence, if the Independent Planning Commission is the consent authority to determine an application for development consent for designated development, and it holds a public hearing into the carrying out of that development, the right of an objector to appeal under s 8.8(2) against a determination of the application by the grant of consent is removed by s 8.6(3)(a): the objector has "no right of appeal under this Division." Returning to the qualifying phrase in s 8.12(1)(a), the application for development consent would in this circumstance not be one "in respect of which the objector has a right of appeal under this Division."
27. It is not necessary, in order for a person to be the objector who "has a right of appeal", that the person be able to exercise this right of appeal. There is a distinction between saying that a person has a right of appeal and saying that the person is able to exercise the right of appeal. As earlier noted, the person who has a right of appeal under s 8.8(2) can only exercise this right if the determination of the consent authority is to grant consent to the development application for designated development. Nevertheless, whilst a determination of a consent authority to refuse consent may mean that an objector cannot exercise the right of appeal under s 8.8(2), it does not mean that the objector does not have a right of appeal under s 8.8(2). There are four indicators in the text and context of s 8.12(1)(a).
28. First, "the right of appeal under this Division", which an objector "has", is in respect of "an application for development consent", not whether or how that application is determined by the consent authority. This stands in contrast to s 8.8(2), which conditions the entitlement of an objector to exercise the right of appeal afforded by that provision on the objector being "dissatisfied with the determination of the consent authority to grant consent." This contrast in how "a right of appeal" of an objector is used in s 8.12(1)(a) with when an objector can exercise the right of appeal under s 8.8(2) reveals that the phrase "the objector has a right of appeal" is used in 8.12(1)(a) in the sense of "the objector may appeal".
29. This is the same sense in which s 8.7(3) refers to an objector's right of appeal under s 8.8(2). Section 8.7(3) prevents the Court from hearing an appeal under s 8.7(1) by an applicant for development consent "to carry out designated development in respect of which an objector may appeal under this Division" until after the expiration of the period within which an objector "may appeal to the Court." The reference to "an objector may appeal" is a reference to the right of appeal afforded to any objector under 8.8(2), not whether a particular objector can exercise the right of appeal in any particular circumstances.
30. Secondly, if the phrase "the objector has a right of appeal under this Division" in s 8.12(1)(a) were to be construed as Stannards suggests so as to require that the objector not merely have a right of appeal but actually be able to exercise the right of appeal, the relevant consent authority who is required by s 8.12(2) to give the notice of appeal would need to determine whether a particular person is not only an objector but also is able to exercise the right of appeal under s 8.8(2). In order to be able to exercise the right of appeal under s 8.8(2), a person needs, first, to be an objector as defined and, secondly, to be dissatisfied with the determination of the consent authority to grant consent. The consent authority can, from inspection of the submissions made during the public exhibition of the application for development consent, verify whether the person duly made a submission by way of objection during the public exhibition of the application for development consent, and hence is an objector.
31. However, the consent authority has no means of ascertaining whether such a person is dissatisfied with the determination of the consent authority to grant consent to the application. No assumption can be made that, merely because the person made a submission by way of objection during the public exhibition of the application, the person will still be dissatisfied with the determination of the consent authority to grant consent. The determination to grant consent might be subject to conditions that address the concerns raised by the person in the submission by way of objection. The consent authority thus has no way of determining whether a person is dissatisfied with the determination to grant consent in advance of giving a notice of an appeal by the applicant for development consent. This difficulty makes it improbable that the legislature intended that the phrase in s 8.12(1)(a), that "the objector has a right of appeal under this Division", requires not merely that the objector have a right of appeal under s 8.8(2) in respect of the application for development consent in which the person is an objector but furthermore be able to exercise the right of appeal.
32. Thirdly, this construction of the phrase "an objector has a right of appeal" is corroborated by the circumstance in which the phrase is used in paragraph (a) of s 8.12(1). This circumstance is described as being "in the case of an appeal by an applicant", which is an appeal under s 8.7(1) by an applicant for development consent who is dissatisfied with the determination of the application by the consent authority. In many, if not most, instances, the determination of the consent authority with which the applicant for development consent will be dissatisfied will be a determination to refuse consent, rather than to grant consent. In this circumstance, an objector will not be able to exercise the right to appeal under s 8.8(2), as the determination is to refuse consent, not to grant consent. If the reference in the qualifying phrase in paragraph (a) of s 8.12(1) were to be read restrictively to refer only to the circumstance where the right of appeal can be and is exercised, the qualifying phrase would radically reduce the circumstances in which an objector would be entitled to receive notice of an appeal by an applicant for development consent and hence be entitled to be heard on the hearing of such an appeal.
33. Fourthly, this conclusion is also corroborated by the language and structure of the descriptions of the other categories of persons in s 8.12(1) who are entitled to be given notice of an appeal. Consider paragraph (b), for example. The category of persons identified is "an applicant for development consent and the consent authority", while the circumstance in which notice is to be given to these persons is "in the case of an appeal under this Division by the objector concerning the application for development consent". The only "appeal under this Division by an objector" is an appeal under s 8.8(2), which is an appeal by an objector against a determination of a consent authority to grant consent. The "notice of an appeal" to which the persons identified in paragraph (b) are entitled to be given, is notice of this appeal by an objector under s 8.8(2). The qualifying phrase in paragraph (b), therefore, describes the circumstance in which the persons identified are entitled to be given notice as being, "in the case of", an appeal by an objector under s 8.8(2). The language and structure of paragraph (b) are, therefore, similar to the language and structure of paragraph (a) and corroborate the construction I have given to paragraph (a).
34. The construction of s 8.12(1) and (3) that I have explained also promotes the purpose of the EPA Act. A key object of the EPA Act is "to provide increased opportunity for community participation in environmental planning and assessment": s 1.3(j). That object is implemented through the legislative scheme for designated development including providing increased public access to environmental information (public exhibition of the development application and the environmental impact statement for designated development), community participation in environmental decision-making (the public being able to make submissions by way of objection during public exhibition of the development application and environmental impact statement) and access to the Court (entitlement of objectors to appeal and be heard on appeal). A construction of s 8.12 that promotes this purpose of the EPA Act is to be preferred: s 33 of the Interpretation Act 1987 and R v A2; R v Magennis; R v Vaziri (2019) 93 ALJR 1106; [2019] HCA 35 at [37].
35. On this construction of s 8.12(1) and (3), the seven objectors were entitled to be given, and were in fact given by the Council, notice of the appeal under s 8.7(1) by Stannards. They are therefore entitled to be heard at the hearing of the appeal under s 8.12(3).
36. For these reasons, the Registrar did not err in ordering that the three objectors, Friends of Sydney Harbour, the Owners of Strata Plan 63626 and Dr Ron Blombery, are entitled to be heard at the hearing of the appeal. No issue is raised by Stannards that these three objectors did not make application to the Court within the 28 day period required by s 8.12(3). The Council gave notice by letter dated 23 April 2021. The earliest the notice could have been sent by prepaid post was on 23 April 2021. The Friends of Sydney Harbour, Dr Blombery and the Owners of Strata Plan 63626 applied to the Court on 13 May, 14 May and 28 May 2021 respectively, each within the 28 day period after 23 April 2021. Stannards' application to review and set aside the Registrar's orders should be dismissed.
37. Similarly, the three other objectors, the Owners of Strata Plan 48674, the Owners of Strata Plan 48675 and Waverton Public Lands and Waters Protection Association Inc, are also entitled to be heard at the hearing of the appeal. Again, no issue is raised by Stannards that these three objectors did not make application to the Court within time. The Owners of Strata Plan 48674, the Owners of Strata Plan 48675, and Waverton Public Lands and Waters Protection Association Inc applied to the Court on 18 and 19 May 2021 respectively, within 28 days of 23 April 2021. Orders entitling these objectors to be heard at the hearing of the appeal should be made.
38. Initially, Stannards contended that Mr Stevens stood in a different position. He is an objector who was entitled to be given notice of the appeal and would be entitled to be heard at the hearing of the appeal. The issue Stannards raised was whether Mr Stevens had made application to the Court within the time required of 28 days after notice of the appeal was given to him by the Council. The Council gave notice to Mr Stevens by letter dated 23 April 2021. Although not proven by evidence, presumably the notice was given by properly addressing, prepaying and posting the letter to Mr Stevens. The date on which the notice was given was not established, but the earliest date would have been the date of the letter of 23 April 2021. Section 10.11(2) of the EPA Act provides that where notice is sent by prepaid post in accordance with s 10.11(1)(a)(ii) or (b)(ii) of the EPA Act, it is deemed to have been given at the time at which the notice would be delivered in the ordinary course of post. There was no evidence as to when the notice was in fact delivered to Mr Stevens.
39. Stannards referred to s 76(1)(b) of the Interpretation Act 1987, which provides that, where an Act requires any document to be served by post, service of a letter containing the document is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the seventh working day after the letter was posted. In the circumstances of this case, Stannards did not raise any issue that the specific provision of s 10.11 of the EPA Act displaces the statutory presumption in s 76(1)(b) of the Interpretation Act 1987: Woolcott Group Pty Ltd v Rostry Pty Ltd [2015] NSWLEC 46 at [106].
40. Applying s 76(1)(b) of the Interpretation Act 1987, Mr Stevens needed to apply to the Court by 31 May 2021. Mr Stevens' application to the Court was undated, but was stamped as having been received by the Court on 31 May 2021. On this basis, Stannards conceded that Mr Stevens may have applied to the Court in time.
41. The upshot is that Stannards has not established, on the evidence before the Court, that Mr Stevens made his application to the Court outside the 28 day time period required by s 8.12(3) of the EPA Act and hence that Mr Stevens is not a person entitled to be heard at the hearing of the appeal. Mr Stevens is therefore also entitled to be heard at the hearing of the appeal.

Orders

1. The Court: 1. Dismisses the notice of motion filed 25 May 2021. 2. Confirms that Friends of Sydney Harbour, the Owners of Strata Plan 63626 and Dr Ron Blombery are entitled to be heard at the hearing of the appeal. 3. Orders that the Owners of Strata Plan 48674, the Owners of Strata Plan 48675, Waverton Public Lands and Waters Protection Association Inc and Mr Michael Stevens are entitled to be heard at the hearing of the appeal.

Amendments 22 June 2021 - Correction to representation. 22 June 2021 - Correction to objector name. 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: 22 June 2021