Starray Pty Ltd v The Council of the City of Sydney

Land and Environment Court (NSW)|2001-02-22|Before: Bignold J, Mr P, Lloyd J

The Applicant's sole basis for re-opening the concluded proceedings was very starkly formulated and only sketchily developed.

Starkly formulated, it is to the effect that a number of the conditions of the development consent granted by the Senior Commissioner are ultra vires because those conditions were founded upon, and derived from, section 5.2 of the relevant Central Sydney Development Control Plan 1996 (the DCP) which Lloyd J, in the Multistar case held to be void. The particular passage in his Honour's judgment relied upon the Applicant is par 53 which states -

It seems clear, however, that the DCP itself, or at least section 5.2 of the DCP, which relates to short stay public parking, is beyond power and is for that reason void. A DCP may only provide for matters for which a local environmental plan may provide (Environmental Planning and Assessment Regulation 1994, clause 16). The matters for which a local environmental plan may provide are set out in section 26 of the EPA&A Act. Section 5.2 of the DCP purports to control privately owned public car parking by way of specifying the fee structure to be applied. There is nothing in section 26 which enables the making of a local environmental plan to control the fee structure to be applied to privately owned commercial car parking stations or, for that matter, to any other activity. That is not something which local government councils may control or regulate either through development control plans or otherwise. It may be a matter which might be subject to control under the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987. Neither of those statutes, of course, have anything to do with land use and planning. Section 5.2 of the DCP in this case relates to matters for which for which [sic] a local environmental plan may not provide. The applicant does not, however, seek any relief in relation to the DCP itself: it seeks only to strike down the LEP or, alternatively, clause 48A of the LEP. As Mr Hemmings said in his submissions: The provisions in this DCP are draconian and we say not only harsh but ultra vires in that they impose provisions for the charges to be paid. We don't in these proceedings seek to challenge that but merely draw attention to it…

I should note at this point that the Applicant's Solicitor informed the Court (without demur from the Respondent) that Multistar and the Applicant are related companies.

The Applicant's argument did not really develop the point starkly formulated, leaving it to mere assumption (which for present purposes I am prepared to make) that a number of the conditions imposed upon the development consent by the Senior Commissioner's decision derive directly from the terms of the DCP and in particular, s 5.2 thereof.

When par 53 of the judgment in Multistar is read in its proper context, it is apparent that his Honour's holding in relation to the invalidity of the DCP is no more than an obiter dictum. In particular, no declaration to that effect was made in the Court's final orders which simply dismissed Multistar's class 4 application.

That application had sought declaratory relief to the effect that cl 48A of the Central Sydney Local Environment Plan 1996 (Amendment No 9) - Public Carparking (cl 48A) was void or alternatively partially void.

As is apparent from his reasons for judgment, Lloyd J dismissed Multistar's application because he held that the applicant was "precluded from raising in these proceedings the validity of the local environmental plan or of clause 48A of that local environmental plan": see at par 31.

It was in the light of that conclusion that his Honour stated at par 32 that it was "unnecessary to consider the attacks upon the validity of the local environmental plan and upon claim 48A in particular". His Honour continued:

I have hesitated over whether I should express my views thereon. As the parties have fully argued the matter, however, it may be helpful to them if I do so.

His Honour then proceeds to consider a number of questions, including the following: (i.) the inconsistency of cl 48A with the "existing use provisions" of the Environmental Planning and Assessment Act 1979, Pt 4, Div 10 - at par 33 to par 41 inclusive; (ii.) the validity of cl 48A(6)(c) giving mandatory effect to the DCP - at par 42 to par 53 inclusive.

His Honour's "views" on the first question are recorded in par 41 and include the following:

Those provisions of clause 48A which derogate from the incorporated provisions would simply then have no force or effect in relation to that land. But that does not make clause 48A void. The clause would continue to have force and effect in relation to land upon which there is no existing use. I note that the applicant did not contend before Talbot J that it had existing use rights in relation to the Kent Street Parking Station. Mr Hemmings' argument is syllogistic, but that does not make it right.

His Honour's "views" on the second question are recorded in par 51 and par 52 and include the following:

The conclusion to be drawn from the cases discussed above is that, absent any authority to the contrary, is not unlawful for an environmental planning instrument to give mandatory effect to a development control plan in the manner which clause 48A(6)(c) does in the present case

In the absence of any authority to the contrary, I would not be inclined to find that there is an invalidity in this case..

These last mentioned "views" immediately precede par 53 of his Honour's judgment which provides the sole foundation for the Applicant's application to re-open the concluded proceedings.

The Respondent submitted that the application to re-open the case was "hopeless". The application simply was an attempt to have a "second bite" at the concluded case, which had proceeded upon the assumption that cl 48A was valid, and that assumption far from being undermined by the later decision of Lloyd J in Multistar, was vindicated since his Honour had held that Multistar was precluded from questioning the validity of cl 48A and had observed obiter, that cl 48A was valid.

In my judgment, the Applicant has clearly failed to make out its case for a re-opening. At its highest the Applicant's case is that soon after the Senior Commissioner had pronounced his judgment granting development consent subject to conditions (which conditions apparently properly had reflected the requirements of cl 48A), the judgment of Lloyd J in Multistar had been delivered in which his Honour, in what can only be regarded as an obiter dictum, expressed the view that the DCP (the terms of which were incorporated by reference into cl 48A) was either wholly or partly "beyond power and….void".

In my judgment, this obiter dictum (which with the greatest respect to his Honour, presents its own difficulty inasmuch as his Honour had also earlier expressed the view that the incorporation of the DCP into cl 48A was valid) provides a self-evidently insufficient basis for any re-opening of the concluded proceedings. The present case is very far removed from Re Harrison's Settlement (1955) Ch 260 cited by Ritchie as an example of a case justifying a re-opening, where it was held that a Judge in the Chancery Division who had made an order which had not been perfected, had the power to recall it, to give effect to a change in the law brought about by a contemporaneous decision of the House of Lords which had made it clear that the judge had no power to make such an order.

Although what I have just said is sufficient to dispose of the Motion, there is a further cogent reason why the Motion must be dismissed, namely the fact that the Applicant had deliberately conducted its case before the Senior Commissioner on the stated assumption that cl 48A was valid - see the transcript of the hearing on 28 November 2000 at line 40.

Mr Hemmings QC who represented the Applicant in the proceedings before the Senior Commissioner had expressly stated this assumption in the context of informing the Court of the nature of the Multistar proceedings which had been argued before Lloyd J and where his Honour had reserved his judgment.

In these circumstances, the Applicant must be bound by the position it deliberately adopted in its conduct of the litigation before the Senior Commissioner. It would be manifestly unreasonable and contrary to principle, to now allow the Applicant the opportunity to re-open the concluded proceedings in order to advance a different case that it could have advanced at the hearing, but had deliberately chosen not to do so.

For all the foregoing reasons, in the exercise of discretion, I would refuse the Applicant leave to re-open the case.

For reasons given, the Court possesses the statutory power to grant the relief claimed in the Applicant's Notice of Motion, but in the exercise of its discretion, I would refuse to grant leave for the Applicant to re-open its case.

The Respondent seeks an order for costs on an indemnity basis.

The Applicant resists any order for costs on the ground that these are class 1 proceedings where the Court's general practice of not awarding costs should be applied.

In my judgment, the Applicant should pay the Respondent's costs of the Motion for the reason that the costs of the Motion are not costs in the planning appeal within the meaning of the Court's Practice Direction (Par 10) but rather, they are separate costs.: see MacDonald v Mosman Municipal Council (No 2) (2000) 107 LGERA 211 at 215/216 and Tenstat Chullora No 2 Trust v Valuer General (2000) 110 LGERA 227 at 233/234.

However, since I have rejected the Respondent's submissions that the Court lacked the power to grant the relief claimed (this being the sole basis for the claim to indemnity costs as communicated in the Respondent's Solicitor's letter to the Applicant before the hearing on the Notice of Motion, Exhibit A), there is no justification for indemnity costs.

Accordingly, I order that the Notice of Motion be dismissed with costs.

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.

Trade Practices Act 1974(Cth)

CITATION : Starray Pty Ltd v The Council of the City of Sydney [2001] NSWLEC 38 APPLICANT: Starray Pty Ltd PARTIES : RESPONDENT: The Council of the City of Sydney FILE NUMBER(S) : 10605 of 2000 CORAM: Bignold J KEY ISSUES: Practice & Procedure :- Motion to reopen concluded development appeal on basis of subsequent decision of Court. LEGISLATION CITED: Land and Environment Court Rules 1996, Part 15, r 9(b) Bailey v Marinoff (1971) 125 CLR 529; Baldry v Jackson (1976) 2 NSWLR 415 at 419; DJL v Central Authority (2000) 74 ALJR 706; CASES CITED: MacDonald v Mosman Municipal Council (No 2) (2000) 107 LGERA 211; Memel Holdings Pty Ltd v Pittwater Council (2000) NSWLEC 227; Multistar Pty Ltd v The Minister of Urban Affairs and Planning and Anor (No 2) (2000) NSWLEC 242; Tenstat Chullora No 2 Trust v Valuer General (2000) 110 LGERA 227 DATES OF HEARING: 22 February 2001 DATE OF JUDGMENT: 03/02/2001

(2000) 107 LGERA 211

(2000) 110 LGERA 227

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