Starray Pty Limited v Sydney City Council

Subsequently, a second development application, namely D/2000/00395 ("the second application") was made on 12 May 2000 by the applicant pursuant to s 78A of the EP&A Act. It sought consent to incorporate the existing use of public carparking in the basement of the development the subject of the first consent. The second application describes such development as: Proposed change of use to approved mixed development DA 99/00423 The existing use of the site is described as Public Parking Station

The council was deemed to have refused the second application. It is common ground that the applicant was seeking to retain its existing use rights for the ground level public car park for 45 cars, and to incorporate such use into the first consent. The applicant had not sought the incorporation of the existing use in the first application because of the requirements of the Central Sydney Local Environmental Plan 1996 and Central Sydney Development Control Plan 1996 which restrict the operation of public car parks in the city of Sydney.

On 29 November 2000 Senior Commissioner Jensen delivered an ex tempore judgment upholding an appeal instituted on 28 June 2000 against the council's refusal of the second application.

The Senior Commissioner made the following substantive orders ("the orders"):-

1. The appeal is upheld.
2. The development application previously approved by council is confirmed subject to further conditions.
3. The conditions shall be generally as contained in Exhibit 5 before the Court except as modified by the contents of Exhibit E, excluding subs (3), and Exhibit F. The reference in order 2 to the ' development application previously approved ' is a reference to the first consent.

Council's appeal against the Senior Commissioner's decision

The council appeals pursuant to s 56A of the Land and Environment Court Act 1979 ("the LEC Act") raising as a question of law, namely, whether the Senior Commissioner was seised of jurisdiction to make the orders, or alternatively, whether the Senior Commissioner erred in making the orders.

The council submits that order 2 purported to confirm the first consent and that order 3 of the orders purports to modify the first consent. The council submits that the only jurisdiction of the Court to modify an existing development consent is pursuant to s 96 of the EP&A Act. Since no such application had been made under s 96(2) of the EP&A Act the Court had no jurisdiction to modify the first consent. The council therefore submits that the Senior Commissioner erred since he purported to modify an existing consent pursuant to an application made under s 78A of the EP&A Act.

The applicant submits that the application was made pursuant to s 78A of the EP&A Act 'in lieu of a s 96 modification application because of the likelihood of an argument as to whether the development as modified would be substantially the same as the approved development.'

The applicant submits that an application under s 96 of the EP&A Act cannot be made if a proposed development would not be 'substantially the same development' to that which consent had been granted. The applicant submits that in such circumstances it was appropriate to lodge an application under s 78A of the EP&A Act.

The Court accepts the applicant's submission that an application under s 96 of the EP&A Act would not have been appropriate since the development would not be capable of characterisation as 'substantially the same development' as that which is the subject of the first consent. However the appeal before the Senior Commissioner was confined solely to a consideration of the merits of the second application and the appellant in instituting the appeal was exercising the right provided by s 97 of the EP&A Act.

The power of the Court on an appeal is prescribed by s 39 of the Land and Environment Court Act 1979. Such prescription confines the Court's power to a re-hearing of the application. The Senior Commissioner was therefore limited to determining only the second application and he had no power to make any orders in respect of the first application. To do so would lead to the consequence that the Senior Commissioner had exceeded his jurisdiction.

In Craig v South Australia (1995) 184 CLR 163 the High Court of Australia said at 177:- An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the natures or limits of its functions in a case where it correctly recognises that jurisdiction does not exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act.

The transcript of the proceedings before the Senior Commissioner records that he considered the appeal before him as one which was related to the first application. The Commissioner said:- The only issue in my mind is that this is a notional change before the event, and I'm not sure that there is any precedent for coping with that sort of situation, but my inclination is as I've already said, I think that it is entirely possible to change in the fashion of an application something within an approved development.

This passage demonstrates that the Senior Commissioner treated the second application as being one in the nature of a modification to the first consent.

Further, the orders made by the Senior Commissioner confirm that he regarded the subject matter of the second application as an integral part of the first application. The Senior Commissioner purported to confirm the first consent by order 2. Order 3 imposes conditions to the second application as contained in Exhibit 5 'as modified by the contents of Exhibit E excluding subs (3) and Exhibit F'. The opening words of condition 2 to Exhibit 5 states:- The applicant shall modify the existing consent given in Notice of Determination No. D1999/00423 dated 31 March 2000, … When the contents of Exhibit 5 are examined it is apparent a modification of the first consent pursuant to s 96 of the EP&A Act was intended, although the terminology is meaningless. Only a consent authority has power to make such modification. Exhibit 5 as amended by Exhibit E purportedly imposes new provisions which affect the first consent. Condition 2 makes provision for 45 short-stay public car parking spaces and creates new arrangements for parking in the development which is the subject of the first consent.

However the Senior Commissioner had no jurisdiction to make orders confirming the first consent or altering the conditions applicable to such consent since the first consent was not the subject of the appeal. The Senior Commissioner exceeded his jurisdiction and the orders are a nullity. It is 'as if there were no judge and the proceedings are as nothing' (Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 360 at 389 per Dixon J). The orders made by the Commissioner are therefore void.

It will be necessary for this appeal to be re-heard and it is therefore inappropriate for the Court to make findings in relation to any of the remaining issues. The legal issues raised in the proceedings are intricate and this factor will no doubt be considered when the appeal is re-listed for hearing. Whilst the re-hearing will be confined to a re-hearing of the appeal, an application pursuant to s 96 of the EP&A Act to amend the first consent would be required to conclusively determine whether the existing use should be incorporated into the first consent. For this purpose it would be appropriate for any such application to be filed and listed for hearing with the appeal.

1. The appeal is upheld.
2. The orders made on 29 November 2000 be set aside.
3. The proceedings be listed before the Registrar on 9 August 2001 for further directions.
4. Costs be reserved.

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.