Sydney City Council v Ipoh Pty Ltd

Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 LEGISLATION CITED: Land and Environment Court Act 1979 Local Government Act 1919 Local Government Act 1993

Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370 Estate Project Developments Pty Ltd v Sydney City Council (2005) 141 LGERA 86 Hemmes Hermitage Pty Limited v City of Sydney Council [2004] NSWLEC 539 Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 King v Great Lakes Shire Council (1986) 58 LGRA 366 Kogarah Municipal Council v Kent (1981) 46 LGRA 334 CASES CITED: McDougall v Warringah Shire Council (No 2) (1993) 30 NSWLR 258 North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740 Piano v Woollahra Municipal Council (1990) 71 LGRA 62 Pimas Group Pty Ltd v Maritime Services Board (NSW) (1994) 82 LGERA 205 Shell Harbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104 Strathfield Municipal Council v Drew (1985) 1 NSWLR 338 Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724

PARTIES: Sydney City Council Ipoh Pty Ltd

COUNSEL: C: M Craig QC / R Lancaster O: J Ayling SC / S Berveling

SOLICITORS: C: Maddocks, Sydney O: Home Wilkinson Lowry, Sydney

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT MEDIUM NEUTRAL CITATION: Ipoh Pty Limited v Sydney City Council [2006] NSWLEC 102

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40207/06 L&E 10323/05

HODGSON JA SANTOW JA TOBIAS JA

Friday 3 November 2006 SYDNEY CITY COUNCIL v IPOH PTY LTD Judgment 1 HODGSON JA: I agree with the orders proposed by Tobias JA, and subject to say I say below, I agree substantially with his reasons. 2 The question of whether a person can lawfully carry out development on land depends upon both (1) considerations associated with title to the land and (2) considerations associated with questions of environmental planning. 3 The granting of development consent by a council concerns (2) but not (1); and whether or not a person who is not the owner of land can carry out on that land a development, for which development consent has been granted, will depend on legal issues separate from those arising under the Environmental Planning and Assessment Act (the Act), such as the law relating to trespass, leases, licences, contracts and estoppel. 4 The circumstances that s.77(1)(b) of the Act (the predecessor of cl49 of the Environmental Planning and Assessment Regulation) required the consent of the owner to a development application does not in my opinion mean that the Act or Regulation was intended to give the owner a further measure of control, as a matter of title, over development, beyond that given by the law relating to trespass, leases, licences, contracts and estoppel. The objects of the Act, set out in s.5, concern matters relating to environmental planning, not matters relating to title to land. 5 In my opinion, the requirement of consent of the owner to a development application under the Act and Regulation is to be considered as a means of supporting the objects and the functioning of that legislative scheme; for example by ensuring that consent authorities are not troubled by applications that are pointless because title requirements for carrying them out will not be satisfied, and by ensuring that owners are not prejudiced by having development consents associated with their land which cause unwelcome increases in the value of land and thus in rates and taxes payable on it. 6 When the owner of land is the consent authority itself, the giving or withholding of consent to the making of an application is not something that determines the applicant's right, as a matter of title, to carry out the development; although in certain circumstances, it is conceivable that it could be a factor in giving rise to an estoppel pursuant to which an applicant could have such a right. Subject to the possibility of estoppel, all that the giving of that consent does is to permit the application to go forward so that the consent authority can assess it on the criteria set out in s.79C of the Act. 7 In circumstance such as those under consideration in Hemmes Hermitage Pty Limited v City of Sydney Council [2004] NSWLEC 539, where the application was to develop a building in the air space above and in sub-soil below a public road, and where the applicant had no basis for claiming or expecting that the Council would grant it the right (as a matter of title) to carry out that development, the application could be seen as pointless; and although in my opinion Lloyd J was in error in holding that the Land and Environment Court could not exercise the Council's power to give or withhold consent to the making of the application, it seems clear that it would have been futile for the Land and Environment Court to embark on a complex and expensive environmental and planning assessment in such circumstances, and so it would have been appropriate for the Land and Environment Court to confirm the Council's withholding of consent to the making of the application. 8 In the present, under its lease from the council, the applicant has, or may, by showing that consent has been unreasonably withheld, be able to obtain, the right, as a matter of title, to carry out the proposed development. In those circumstances, the development application is not pointless, and the carrying out of an environmental and planning assessment would not be futile; and there is no prospect of an effect on the value of the property adverse to the Council. As mentioned earlier, I do not think it was the purpose of the legislative scheme of the Act and Regulation to give owners additional control over their properties beyond that given by other laws; that is, in the circumstances of this case, to give the Council additional control as owner of property beyond that which it has in accordance with the lease to the applicant. 9 Viewed in that context, I agree with Tobias JA that the giving of Council's consent (as owner of the land) to the making of the development application was one of the "functions and discretions" of the Council "in respect of the matter the subject of the appeal" within s.39(2) of the Land and Environment Court Act. In exercising this function and/or discretion, in my opinion the Land and Environment court is not making decision on s.79C criteria, but deciding whether the appropriate course is to give or withhold consent to the making of the application, having regard to the purpose of this requirement as disclosed by the legislative scheme of the Act and Regulation. If the Court decides to give consent, then s.79C criteria would apply to its determination of the application. 10 SANTOW JA: I agree with Tobias JA, and with the additional observations of Hodgson JA. 11 TOBIAS JA: Clause 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) provides that a development application may be made either by the owner of the land to which the application relates or by any other person with that owner's consent in writing. 12 In Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724, this Court held that where a development application was made to a council for consent to the erection of a structure which projected over a public road the council as owner of the road under the Local Government Act 1919 (the 1919 Act) was empowered to give its consent to the making of the application as required by s77(1)(b) of the Environmental Planning and Assessment Act 1979 (the EPA Act) (the predecessor to cl 49 of the Regulation). If it did not do so and the applicant for consent appealed to the Land and Environment Court (the Court) against the refusal of its development application, then by virtue of s39(2) of the Land and Environment Court Act 1979 (the Court Act) the Court was empowered to give its consent to the making of the application for the purpose of satisfying the requirements of s77(1)(b). 13 The question in the present case is whether the Court's power under s39(2) to give the owner's consent to the making of a development application where the owner of the land the subject of that application is the council, extends to land which is not a public road but which is otherwise owned by the council as an investment asset. Talbot J answered this question in the affirmative and it is from that decision that the claimant (the Council) seeks this Court's leave to appeal. The application for leave was heard concurrently with the substantive appeal.

The relevant facts 14 For the purpose of deciding that question as a preliminary issue, the parties prepared a Statement of Agreed Facts that I set out below, so far as they are presently relevant and with some adaptation for that purpose: (a) The Council is the owner of the land in Certificate of Title Volume 8643 Folio 28 being lot 1 in DP 811077 and known as 429-481 George Street, Sydney (the land). (b) Erected on the land is a building known as the Queen Victoria Building (the QVB). (c) Central Sydney Local Environmental Plan (the LEP) and Central Sydney Heritage Local Environmental Plan 2000 (the HELP) apply to the land. (d) The QVB is listed as an item in Schedule 1 to the HELP. (e) Ipoh Pty Ltd (Ipoh) holds two leases over the QVB for terms of 99 years. The term of each lease expires in 2083. (f) On 9 January 2004, Ipoh lodged with the Council a development application (the development application) for the upgrading of certain elements of the QVB in the form of a master plan. (g) The proposed development is permissible with consent. (h) The Council proceeded with the assessment of the development application. (i) In a report dated 8 November 2004 to the Council's Planning Development and Transport Committee, the Council's planners recommended that the Council resolve to grant consent to the development application subject to certain conditions. (j) On 8 November 2004 the Council's Finance, Properties and Tenders Committee considered a report the purpose of which was to obtain the Council's consent as owner of the land to the lodgement of the development application for a master plan to guide the proposed upgrading works to the QVB. (k) The report recommended that: '(A) Council grant owners' consent for the lodgement of the development application for a master plan as described in the subject report by the lessee of the Queen Victoria Building, noting that separate development applications will be lodged for the works included in the master plan and that no works are authorised by this consent: and (B) Council's attorney be authorised to execute all necessary documentation.' (l) The Finance, Properties and Tenders Committee relevantly resolved to recommend that Council "(D) Defer consideration of the request for owners' consent to the lodgement of a development application for a master plan by the lessee of the Queen Victoria Building, pending a review as to whether there is an alternative means of improving circulation to the upper levels of the building while minimising the impact on the internal spaces as well as the heritage fabric of the building; (E) Establishes a sub-committee for the purpose of undertaking the review identified in paragraph (D) above. (F) Request that a report be presented at or prior to the final meeting of the Finance, Properties and Tenders Committee, scheduled for 13 December 2004 in order to facilitate the determination regarding the granting owners' consent." (m) On 15 November 2004, the Council relevantly resolved in terms of the Committee's recommendation. (n) At its meeting of 9 May 2005, the Council resolved that: "(A) Council not grant owners' consent for the lodgement of a development application for a Master Plan for the Queen Victoria Building, for the reasons outlined in the Memorandum; and (B) Council request that the lessee of the Queen Victoria Building investigate alternative means of improving circulation to the upper levels of the building; while reducing the impact on the internal spaces as well as the heritage fabric of the building." (o) The Council has failed to give its consent in writing as the owner of the QVB to the making of the development application. (p) The Council has also failed to determine the development application pursuant to s80(1) of the EPA Act by granting consent to the application either conditionally or subject to conditions or by refusing consent to the application. (q) At its meeting of 5 September 2005 the Council's Planning Development and Transport Committee relevantly resolved that: "(a) the application be returned to the Applicant as it cannot be determined in the absence of Council's consent as landowner to the lodgement of the development application. (b) the Applicant be advised that, had determination been possible, the development application would have been refused due to the negative impact of the proposed escalators on the quality, character, heritage significance and iconic nature of the interior of the building, and its appreciation by the public." 15 As the council failed to determine the development application within the relevant period prescribed by the Regulation, s82(1) of the EPA Act provided that the application was, for the purposes only of s97 of that Act, taken to have been refused. Accordingly, Ipoh instituted an appeal in Class 1 of the Court's jurisdiction pursuant to that provision. 16 As it was common ground that consent to the development application could not be granted by the Court unless there was compliance with cl 9 of the Regulation, on 21 March 2006 the following preliminary questions in the Class 1 proceedings were stated for separate determination: "Question raised by the Respondent: 1. Whether the ancillary jurisdiction of this Court, pursuant to s39(2) of the Land and Environment Court Act 1979 should be construed, in the circumstances of this case (as described in the particulars to the question of law filed on 14 November 2005), to permit the Court to grant owner's consent to the lodgement of development application No. D/.2004/00015? Question raised by the Applicant: 2. Does an appeal lie to the Land and Environment Court against the deemed refusal of a development application, where the owner of the land to which that development application relates has not given its consent to the lodgement of that development application?"

The primary judge answered each of these questions in the affirmative. 17 Although not contained in the Statement of Agreed Facts, it was common ground that the land was public land as defined in the Dictionary to the Local Government Act 1993 (the 1993 Act) and which, with immaterial exceptions, applied to any land vested in or under the control of the council. Further, being public land, it was required by s25 of the 1993 Act to be classified either as "community" or "operational". The land was classified as "operational". It was therefore not subject to the restraints contained in Div 2 of Pt 2 of Ch 6 of the 1993 Act. In particular, unlike community land, there are no express restrictions with respect to the sale or leasing of operational land. Typically, operational land is held by a council as an investment. Such was the case with the QVB which, under the terms of the lease to Ipoh returned a rent to the Council of 50% of what was referred to therein as the final balance of the lessee's gross income in each lease year from the sub-letting of the various shops and spaces within the building.

The decision of the primary judge 18 The decision of the primary judge turned on the provisions of s39(2) of the Court Act, which is in the following terms: "In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal."

Pursuant to the definition provision of the Court Act (s4(1)), the term "functions" is defined to include powers, authorities and duties. 19 After referring to Claude Neon and the cases which subsequently followed and applied it (and to which I shall later refer), the primary judge observed (at [20]) that the underlying consideration for the exercise of power by the Court within the meaning of s39(2) of the Court Act was "whether it was a function the council ' had in respect of the matter the subject of the appeal '. Although the majority of the cases that I have referred to involved the giving of the consent of the council as the owner of the public road, nevertheless, I do not consider that the facts of those cases confined the principle to the circumstances where the subject land is a road." 20 The primary judge referred to the observation of Hope JA in Claude Neon (at 729) that if the development is one that ought to be approved, then the council ought to give its consent to the making of the relevant development application and that its failure to do so in order to frustrate the right of the applicant to obtain approval to a structure projecting over the road would be an abuse of power. The primary judge then continued, saying that "[t]he giving of the consent to the making of the development application is a function the exercise of which is basic to the function of the council to grant development approval. To deny the giving of consent to the development application where in all other respects the development application would be approved would amount to a dereliction of the duty and obligation of the council to determine an application for development consent in accordance with the EPA Act."

The submissions on the appeal 21 Ipoh submitted that the basis of the primary judge's decision was that s39(2) of the Court Act permitted the Court in Class 1 proceedings to grant consent to the making of a development application in respect of which an appeal under s97 had been instituted because the giving of that consent by the Council was a function that it had in respect of the matter the subject of the appeal. Further, there was no reason in principle for confining the exercise of that power by the Court to cases involving public roads. 22 The Council accepted that the power conferred on the Court by s39(2) could only be exercised if the giving of the Council's consent (as the owner of the land) to the making of the development application was one of the "functions and discretions" of the Council "in respect of the matter the subject of the appeal" within the meaning of the section. Reference was made to the following passage of Hope JA, with whom Priestley and Meagher JJA agreed, in Claude Neon (at 731G): "If the power of the council to consent to the lodging of the application is a function or discretion which it has in respect of the matter the subject of the appeal, then the court would have the power not only to grant development approval but to exercise the power of the council to consent to the lodging of the application." 23 Reliance was also placed upon the following further passage in the judgment of Hope JA at 732D-F "The giving of its consent to the making of an application for development approval is undoubtedly a function of the council, and it is a function the exercise of which is basic to its function to grant development approval in such a case. If the view which I have expressed is right, namely, that a council can give its consent to the lodging of an application by giving development approval, in my opinion s39(2) places the Land and Environment Court, upon an appeal, in the same position as the council. Section 39(5) provides that a decision of a court upon an appeal shall, for the purposes of the Land and Environment Court Act or any other Act or instrument, be deemed, where appropriate, to be the final decision of the body whose decision is the subject of the appeal and shall be given effect to accordingly. The decision of the court is thus, where appropriate, deemed to be the decision of the council, and in my opinion the subject case is an appropriate case. The court thus having the same powers as the council had when dealing with the application before it, it is empowered to give a consent which will operate as a consent by the council in its capacity as owner of the road to the lodging of the application for development approval." 24 The Council nevertheless submitted that the foregoing passage must be understood as stating a principle not of general application but limited to the "special considerations" applying to cases "where the consent authority is the owner of the land, and that land is a public road": Claude Neon at 728F. Hope JA, at 729C-E, had noted that s232 of the 1919 Act provided that the Council had the same estate and rights in and with respect to the site of a public road as a private person would have if he were entitled to the site as private land held in fee simple. However, it did not follow that the functions, powers, rights and duties of the council with respect to land comprised in a public road, was the same as those of a private person with respect to land which he or she owned. The council owned the land which was the site of a public road only for the purposes of its use as such. It could not do with the road everything that a private owner could do with his land. It could only do things which are authorised by or under the relevant statues which vested in the council the fee simple of the road. 25 Hope JA then considered (at 729G) that if the owner of land applied to a council for its consent as owner of the road for the erection of an advertising structure which projected over the road, the council did not have the right arbitrarily to withhold its consent as the ordinary owner of private land might do. If the proposed development was one which ought to be approved, then the council ought to give its consent. Its failure to do so simply because it wished to frustrate the right of the applicant for development consent to obtain approval for a projecting structure would be to use its power for an improper purpose. 26 In the light of these observations by Hope JA in Claude Neon, the Council submitted that the power of the Court under s39(2) to give its consent to the making of a development application was confined to a situation where the land or part of the land the subject of that application was a public road. It was thus contended that where a council owned operational land that was leased on a commercial basis (as in the present case), it was entitled to deal with that land in precisely the same way, and exercise precisely the same rights, functions and powers, as would any other private owner of land. In this respect it is to be recollected that the 1993 Act did not restrict either the use or disposal of operational land by a council. 27 It accordingly followed, so it was submitted, that as a private owner of land would have the right to refuse its consent to the making of a development application with respect to that land by a third party, so the Council in the present case was entitled to refuse its consent to the making of Ipoh's development application with respect to the QVB. In so refusing that consent, the Council, like any other private owner of land, was entitled to take into account such considerations as it thought appropriate including commercial considerations which were independent of those that it was obliged to take into account pursuant to s79C of the EPA Act when exercising its powers and functions as a consent authority. Accordingly, the power of the Council to refuse to give its consent to the making of the development application in the present case was not a function or discretion which the Council, whose deemed decision to refuse the development application was the subject of the appeal, had in respect of any matter the subject of that appeal. 28 Ipoh contended that the Council was incorrect in its submission that it was in exactly the same position as a private owner of land. As the land was operational land it was and remained "public land" as defined. The Council's functions, powers, rights and duties with respect to public land (including operational land) were different from those of a private landowner and, in principle, fell into the same category as its functions, powers, rights and duties with respect to public roads in that the Council, even with respect to its dealings with operational land, was limited by the provisions of the 1993 Act. 29 It was thus submitted that the Council was bound to deal with all public land in its ownership in a manner consistent with its charter as set out in s8(1) of the 1993 Act which included the raising of funds for local purposes by income earned from investments. It was acknowledged by the Council that the QVB was an investment asset. The charter also required the Council to bear in mind that it was the custodian and trustee of public assets and was therefore required to effectively account for and manage those assets for which it was responsible. 30 Furthermore, income earned from investments was one of the sources of revenue referred to in the 1993 Act as necessary to enable the Council to exercise the functions conferred or imposed upon it under that Act pursuant to s21 thereof. Those functions included, for example, provision of community health, recreation, education and information services. The Act expressly provided that one of its "Revenue Functions" was investments. 31 Finally, Ipoh contended that Pt 2 of Ch 13 of the 1993 Act imposed obligations upon the Council relating to activities undertaken by it of a business or commercial nature: see, for example, s403(2). Furthermore, if it disposed of an asset and incurred a loss as a consequence of negligence or misconduct by a councillor or member of staff, that person was liable to be surcharged: see s435(2). None of these restrictions applied to an owner of private land. The simple point was that the Council was the owner of public land, not private land. 32 It was thus submitted that no relevant distinction could or should be made between a council's functions and powers with respect to public roads and its functions and powers with respect to public land in its ownership. It was true that most, but not all, of the cases concerning the exercise by the Court of its powers pursuant to s39(2) of the Court Act to consent to the making of a development application related to development upon public roads. Nonetheless, the relevant circumstance which enlivened the exercise of that power was neither expressly nor impliedly related to the status of the land the subject of the development application, of which the council was the owner. 33 What was relevant was that by giving its consent, as owner, to the making of a development application, the Council was exercising a power that was basic to its function as a consent authority under the EPA Act to grant development consent to that application. Accordingly, where there was an appeal to the Court against the Council's express or deemed refusal of that application, the giving of consent to the making of the application was a function in respect of the matter the subject of the appeal within the meaning of s39(2). The exercise by the Court pursuant to the provision of the Council's powers depended on whether that function was one "in respect of the matter the subject of the appeal" and not the nature, identity or status of the land the subject of the development application.

Is the exercise by the Court under s39(2) of the Court Act to give consent to the making of a development application in respect of which an appeal has been instituted to the Court pursuant to s97 of the EPA Act confined to land the subject of that application which is a public road? 34 In my opinion the answer to the question so posed is in the negative. Essentially, my reasons for holding this view are encapsulated in the following propositions:

(a) A council has two quite independent powers, namely: · To determine a development application as the consent authority under the EPA Act; · to consent to the making of that application in its capacity as the owner of the land the subject of the application. (b) A council therefore has the power to grant the owner's consent to the making of a development application as required by clause 49 of the Regulation. It has the power to do so before determining the application or it will be assumed to have done so if it grants development consent to the application. (c) The giving by the council of consent to the making of a development application with respect to its land for the purpose of cl 49 of the Regulation is an essential prerequisite to, and part of the process of, its determination of that application. That is to say, the giving of that consent is necessary to enable the council as the consent authority to exercise its function to grant development consent to the application if it be minded to do so. (d) If the development application is actually refused by the council or is deemed to have been refused, then the applicant has a right to appeal to the Court pursuant to s97 of the EPA Act. (e) The Court cannot uphold any such appeal and grant development consent to the application unless the owner's consent to the making of the application has been given. (f) Where the land the subject of the application is owned by the council from whose decision the appeal is brought, its function in giving consent to the making of the application is an aspect of the power to grant or refuse development consent to the application. In other words, the giving of its consent as owner of the land only has one purpose which is to enable it to lawfully determine and dispose of the development application in accordance with the provisions of the EPA Act. (g) The Court cannot exercise its function of determining the appeal by the granting of development consent to the application, if it is otherwise minded to do so, without the owner of the land having given its consent to the making of the application. This is because it is basic to the function of granting consent to a development application that clause 49 of the Regulation be complied with. (h) The Court has the same powers and functions as the council from whose decision the appeal is brought. The " matter the subject of the appeal " for the purposes of s39(2) of the Court Act is whether consent to the development application should be granted or refused. (i) As the owner of the land the subject of the application, the council has the power to give consent to the making of the application so as to permit of its lawful determination; it must follow that the Court has the same power as the council for the purpose of enabling it to determine the appeal by the granting or refusing of development consent to that application. (j) Accordingly, as the Court can do what the council can do, it must follow that the Court may, for the purpose of determining the subject matter of the appeal (namely, whether to grant or refuse development consent to the application), exercise the power of the council to give the necessary consent required by cl 49 of the Regulation so as to enable it to lawfully determine and dispose of the application the subject of the appeal. 35 It is appropriate that I seek to make the above propositions good by reference to the relevant authorities. The first, of course, is that of Claude Neon. As Ipoh observed, there were two errors of law alleged on the part of the Assessor in that case in respect of which there was an appeal to a judge of the Court. They were as follows:

(a) The conclusion that the development application was valid notwithstanding the absence of any written consent by the council pursuant to s77(1)(b) of the EPA Act (now cl 49 of the Regulation); and

(b) The conclusion that the Court was empowered by s39(2) of the Court Act to consent to the making of the application so far as it related to the airspace above the public road and to regard that consent as a consent on the part of the council. 36 After referring to the provisions of the 1919 Act which related to public roads, Hope JA then considered s77(1)(b) in the context of those provisions in order to determine the council's position in relation to a development application which involved the projection of a structure (in the case of an advertising structure) over and above a public road. 37 His Honour then referred to the decisions of Cripps J in Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 120 and King v Great Lakes Shire Council (1986) 58 LGRA 366. In both cases Cripps J held that a consent granted by the council to a development application was void because in the first case part of the land the subject of the development application, was vested in a body corporate under the Strata Titles Act and in the other, the land was owned by the Crown. In neither case had the consent of those respective owners been obtained in compliance with s77(1)(b). 38 It was in that context that Hope JA considered that it was necessary to have regard to the statutory scheme to see whether Cripps J's conclusion applied or needed modification where the council was the owner of the relevant land and that land was a public road. This was because under Ordinance 55 made under the 1919 Act, a licence was required by Claude Neon from the council to erect the advertisement structure which would project over the public road. 39 The refusal by the council to grant the necessary licence could be the subject of an appeal to the Court. However, development consent was also necessary to erect the structure. Although the refusal of development consent by the council could also be the subject of an appeal to the Court, the latter would have no power to grant that consent if the council, as owner of the road over which the structure was to project, did not consent to the making of the development application and "[I]ndeed, the application itself might on one view, be regarded as invalid because of the absence of a consent to it by the council. One has only to consider the proliferation of structures projecting from buildings over public roads to appreciate what an unfettered and unappellable power of control this construction of s77(1) would give to councils when it would seem that it was the intention of the legislation, including the ordinances, to make the council's power subject to appeal." (at 728G-729B) 40 Hope JA then considered whether such an anomaly could be avoided. It was in that context that he made the observations upon which the Council relies to which I have referred in [24] above. His Honour then continued (at 730A-D): "With this background it is necessary to consider how the provisions of s77(1)(b) can operate in practice. An owner wishing to obtain development approval for a structure on his building which will project over a road can adopt a number of alternatives. He may ask the council for its consent before lodging the application. He may lodge the application and ask the council to consent to its lodgement and thereafter to consider it. Or he may simply lodge the application seeking the council's development consent. If the council give consent in either of the first two cases, no issue as to compliance with s177(1)(b) arises. What is the position in the third case? The council, conscious of its position as owner, might consent to the lodging of the application and then give development approval. On the other hand it might simply give development approval, as it did in respect of the appellant's earlier application. As it seems to me, if the council adopts this course, its consent necessarily and implicitly imports consent to the lodging of the application. Whether as against the applicant or in proceedings taken by any other party, the council has in law consented to the lodging of the application. This conclusion is based upon the applicability of the principle that a council can impliedly exercise two powers when all it purports to do is to exercise one power." 41 His Honour then referred to the decisions of this Court in Kogarah Municipal Council v Kent (1981) 46 LGRA 334 and Strathfield Municipal Council v Drew (1985) 1 NSWLR 338. In the former it was held that the Court had power under s39(2) of the Court Act to exercise the council's power to vary a fixed building line to enable the particular development application to be approved. In the latter, this Court held that s39(2) did not extend to consenting to the establishment of a crematorium under the Public Health Act as the matter the subject of the appeal under the EPA Act to the Court had nothing to do with the exercise of the council's powers under that legislation, Hope JA continued in these terms (at 731C-E): "In my opinion the principle (that is, that an approval for one purpose may impliedly be an approval for another purpose) is to be applied where a council is asked to give consent to a structure which in part projects over a public road. If the council gives development approval to that structure, it is doing two things. It is consenting as owner of the road to the making of the application, and it is also approving the application. The first consent is necessarily implicit in the second consent, and in my opinion it does not matter that the council, when giving the second consent, is not conscious that it is implicitly giving the first consent also. There is no such difference between the nature of the act of the council in giving its consent as owner and the nature of the giving by it of development consent to enable it to be said that the actions have nothing to do with each other. If the council were in a position of an ordinary private owner of land in relation to the road, the actions would be completely different. However, that is not the position, and if a council considers that it should give consent to a development application it must also consider that it should give consent to the making of the application." 42 At this point of his judgment Hope JA noted that he had been thus far dealing with the position where the council had itself granted development consent to the proposed structure. Ipoh submitted that up to this point his Honour had been dealing with the first of the two points in the case, namely, that the council had no power to grant development consent for the structure unless it had already given its consent to the making of the application before it was determined. 43 The point sought to be made was that by granting development consent, or where it considered that it should grant such consent, the Council was obliged to consider whether it should give consent to the making of the application. Accordingly, the council did have power to grant development consent even though prior to doing so, it had not given its consent to the making of the application. 44 Relevant to the present case, however, was the situation to which Hope JA then turned, namely, where the council had refused the development application or had failed to deal with it so that it could not be said that it had given its consent to the making of the application. It was in that context that the second issue in the case arose, namely, whether the Court could exercise the power of the council as owner of the public road to consent to the making of an application for development consent to erect a structure over that road. In the context of determining that question, Hope JA observed that its answer depended upon the construction and application of s39(2). After setting out the section his Honour made the observations, relied upon by Ipoh, which I have set out in [22] above. 45 His Honour then noted that the application of s39(2) was considered by this Court in North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740. In that case the question was whether in an appeal from the refusal by the court of the respondent's development application, the Court it could decide whether the purpose for which the relevant land was reserved under the North Sydney Planning Scheme Ordinance could not be carried into effect within a reasonable period or whether the power to make that decision was one which could only be exercised by a council. This Court held that the council had that power. 46 McHugh JA, delivering the judgment of the Court, concluded (at 746D-E) that the function of the council to decide whether the purpose for which the land was reserved could not be carried into effect within a reasonable period was "at the heart of the matter" which was the subject of the appeal to the Court, and that it was a function of the council which could be exercised by that Court pursuant to s39(2), being a function which the council had in respect of the matter the subject of the appeal. 47 Hope JA then concluded in these terms (at 732D-F): "The giving of its consent to the making of an application for development approval is undoubtedly a function of the council, and it is a function the exercise of which is basic to its function to grant development approval in such a case. If the view which I have expressed is right, namely, that a council can give its consent to the lodging of an application by giving development approval, in my opinion s39(2) places the Land and Environment court, upon an appeal, in the same position as the council. Section 39(5) provides that a decision of a court upon an appeal shall, for the purposes of the Land and Environment Court Act or any other Act or instrument, be deemed, where appropriate, to be the final decision of the body whose decision is the subject of the appeal and shall be given effect to accordingly. The decision of the court is thus, where appropriate, deemed to be the decision of the council, and in my opinion the subject case is an appropriate case. The court thus having the same powers as the council had when dealing with the application before it, it is empowered to give a consent which will operate as a consent by the council in its capacity as owner of the road to the lodging of the application for development approval." 48 In my opinion Ipoh's submission that this part of the reasoning of Hope JA in Claude Neon was not dependant upon the status of the relevant land being a public road, should be accepted. What was critical was that not only was the giving of consent to the making of the development application undoubtedly a function of the council but also that it was the exercise of its basic function as the consent authority to grant development consent if minded to do so. As it was open to the council to give its consent to the making of an application by granting development consent thereto, s39(2) placed the Court, upon an appeal, in the same position as the council. 49 Claude Neon was considered and applied by this Court in Shell Harbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104. It was a case that related to the granting of development consent by the council to the construction of a bridge across a creek which was to extend from the applicant's land to a public road owned by the council. As part of the structure was to be erected on that road, the question arose as to whether the Court could consent to the making of the development application in the event that the council, as the consent authority under the EPA Act and the owner of the public road, declined to consent the making of the application. 50 After considering the judgment of Hope JA in Claude Neon, Clarke JA, with whom Samuels and Meagher JJA agreed, deduced some seven propositions from Claude Neon of which the following are presently relevant: "(5) On the other hand where [the council] declines its consent to the lodging of the development application the Court's power to review that action in an appeal under s39(2) of the Court Act depends upon whether the giving of consent is a necessary incident to the power of the council to grant development approval. (6) The giving of consent under s77(1)(b) of the EPA Act to the making of an application for development approval in respect of the erection of a structure projecting over a road is a function of the council which is basic to its function to grant the relevant approval in such a case. (7) Accordingly, s39(2) of the Court Act invests the court with jurisdiction to exercise the power of the council to consent to the lodging of the application." 51 His Honour noted the council's submission in that case that its power to give consent to the making of a development application was not a function conferred or imposed by a planning and environmental law. The right to give or decline such consent was, it was argued, an incident of the council's ownership of the land comprising the road and was to be treated no differently than the right of an owner of private land to withhold consent. In response to this submission Clarke JA remarked (at 112) "If the appellant was a private person then that submission would undoubtedly be correct. It is hard to conceive a situation in which a court could require an adjoining landowner to give consent under s77(1)(b). But that is not this case. As Hope JA pointed out in Claude Neon , the council does not have the power of a private land holder arbitrarily to withhold consent. Nor would it be a proper exercise of its power to decline consent simply 'because it wished to frustrate the right of the adjoining owner to obtain approval for the erection of the structure'. The council is placed in a special situation where an application is made to it for development approval for the erection of a structure partly on its road. The fact that it has not given its consent to the making of the application does not, as Claude Neon established, debar its consideration of the merits of the application. Furthermore, if it simply does nothing the applicant may appeal to the court which has all the powers of the council including the power to consent to the lodgement of the application. If this be correct then the power to grant the consent to the making of the application should be seen as an incident of the power to grant or refuse the application and the exercise of that power should be understood as falling within s20(2)(b) of the Court Act." 52 Piano v Woollahra Municipal Council (1990) 71 LGRA 62 was another case where it was held, applying Claude Neon, that the Court had power under s39(2) to give its consent to an application to convert a public road, which was vested in the council, from a pedestrian to a vehicular way. Hemmings J, after referring (at 169) to Mayoh and Claude Neon observed that the functions or discretions that a council has in respect of the matter the subject of an appeal to the Court was a wider concept than the precise terms of its decision to either grant or refuse development consent. His Honour then continued (at 69, omitting citations): "The function to grant Council's consent to the making of the application is an instance of the power to grant or refuse the application… It has only one ultimate purpose, that is, to enable the determination and disposal of the development application in accordance with the provisions of the EP&A Act. In my opinion, the only question in these proceedings is whether such function should be exercised in the circumstances of this case." 53 Hemmings J then noted the council's submission that the decision in Claude Neon was distinguishable and that that case turned on its own "special consideration" and facts. It was submitted that Hope JA had not turned his mind to applications other than those which involved simple encroachments over public roads of structures erected on private property which fronted those roads. It was further submitted that Rovili was intended to confine the decision of Claude Neon to those cases where application was made to erect a structure on private land which then projects over a public road. However, Hemmings J rejected those submissions opining that no such distinction was either intended or appropriate. His Honour referred to the judgment of Reynolds JA in Kent at 336 where he described the words employed in s39(2) as "wide and clear" and emphasised that the Court thereby could do whatever the council could do to dispose of the appeal. 54 Hemming J concluded that it was clear that the Court should exercise the function and discretion of the council to give the necessary s77 consent which would enable the hearing and disposal of the appeal. Otherwise the refusal by the council of owner's consent to the making of the application would deny the applicant's statutory right to a review by the court of it is the Council's decision on the merits. 55 McDougall v Warringah Shire Council (No 2) (1993) 30 NSWLR 258 was also a decision of this Court which depended upon the construction of s39(2). The appellant in that case kept pigeons in a loft erected on his property for that purpose. The council had resolved on 9 October 1990 to "control and regulate the property" by prohibiting the keeping of pigeons on it pursuant to s289(e) of the 1919 Act. The appellant then made a building application to the council to approve additions and alterations to, and the relocation of, the loft. The council refused the application and an appeal was made to the Court. The issue that arose was whether the Court pursuant to s39(2) could vary, modify or rescind the council's resolution under s289(e). Unless it could do so, the upholding of the appellant's appeal against the council's refusal of his building application would, in effect, be academic whilst that resolution was in force prohibiting the keeping of pigeons on the appellant's property. The Court allowed the appeal and exercised its power under s39(2) to rescind the resolution. 56 After reviewing the relevant authorities, Kirby P considered (at 264) that the language and apparent purpose of s39(2) in the scheme of the Court Act was that it was intended that the Court be placed fully in the shoes of the council at the time an application is lodged. The result of that interpretation, his Honour said, was that "all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval." 57 The President noted that there had been a tendency since the decision of this Court in Kent to confine the jurisdiction of the Court to exercise the powers and functions of the council to those functions "necessary", to "essential" for or "at the heart of" the decision in question. The relevant difference between the wider and narrower approach to the construction of s39(2) was exemplified according to his Honour by the decision in Kent on the one hand and that in Drew on the other. 58 However, his Honour preferred a wide and expanded view of the Court's jurisdiction, observing (at 266) that he preferred a reading "of s39(2) of the Land and Environment Court Act which will allow the Land and Environment Court, as Parliament has provided, to exercise the functions which the council may have exercised when hearing and considering the original application. The words 'matter' and 'in respect of' are wide indeed. It would be to frustrate Parliament's clear purpose if the Court were unduly to narrow the facility of appellate review by rendering it nugatory or diminishing its utility in cases such as the present." 59 The President then set out considerations of legal policy which favoured a narrow jurisdiction as well as those which favoured an ample jurisdiction. He preferred the latter. One of those considerations was the following (at 269): "Unless a broad jurisdiction with ample powers be accepted, the Land and Environment Court may find itself rendered impotent to perform its appellate function. A resolution could be adopted by the council which effectively put the matter in issue beyond the court's power. The objector could be met by rejection of an application at the council and a defence, on appeal, that the subject was beyond the court's correction being otherwise than 'necessary to' or 'at the heart of' the matter the subject of the appeal. Although public remedies would be available to attend to extreme cases where statutory powers were used otherwise than lawfully and reasonably, it should not be necessary for an objector to invoke such remedies where parliament has conferred a jurisdiction to hear appeals on a superior court and cloaked the court with powers widely defined." 60 In my view, even the narrow approach referred to by Kirby P in MacDougall supports the primary judge's decision in the present case. Although it is not possible to say that the wider approach preferred by the President commands a majority in this Court, in my opinion it has much to commend it. Of course, I am not required to make any final comments on this point for the purposes of resolving the appeal in the present case. 61 In his reasons agreeing with the orders proposed by Kirby P, Mahoney JA observed (at 271) "The function here in question is the control and regulation of the keeping of pigeons on the premises. The Council has prohibited that use of the premises. If the appeal before the Land and Environment Court were an appeal against the refusal of development consent to use the land to keep a pigeon loft for pigeons on it, the function of the Council in regulating and (as it had been assumed) prohibiting the use of the land for the keeping of pigeons there would be a function directly related to the determination of whether the land should be used for that purpose. I do not think that the fact that the present application is, in terms, an application only in respect of alterations and additions to or the location of the loft means that the Council's function is not in respect of the relevant matter. That would be too narrow a construction of the relationship to which s39(2) was directed. It would be inconsistent with the beneficial operation of the provision." 62 Mahoney JA then went on to consider this Court's decision in Drew observing (at 272) that in that case Samuels and McHugh JJA concluded that the function exercised by the council under s51(2) of the Public Health Act was not a function "in respect of" the matter the subject of development application. Each function, Mahoney JA observed, must be considered in its own context. The particular categorisation of the function in question in Drew could not determine the categorisation of the function of the council under s289(e) of the 1919 Act in the case at hand. His Honour considered that that function was sufficiently analogous to the function performed in relation to a building or development consent application to warrant the conclusion that it was "in respect of the matter the subject of the appeal". 63 Cripps JA agreed (at 277) with Kirby P that the word "necessary" should not be read into s39(2) of the Court Act, a view which, in his Honour's opinion, accorded with the decision in Claude Neon. His Honour considered (at 278) that as a matter of common sense the council, when considering matters relevant to the subject building application, would also be required to consider its resolution of 9 October 1990 and the reasons for it. It was relevantly "at the heart of the matter". The circumstance that it was not legally "necessary" for the resolution to be varied or modified did not, of itself, deny the power. In his Honour's opinion (at 278) "the power exists provided there is a relevant nexus between the matter the subject of appeal and the discretion or function proposed to be exercised." 64 If that is the correct test, then in my opinion there is a clear "nexus" between the determination of Ipoh's appeal against the Council's deemed refusal of its development application with respect to the QVB and the discretion or function of the Council in granting its consent to the making of that application without which the Court on the appeal would be deprived of jurisdiction to determine "the matter the subject of the appeal" in Ipoh's favour. Accordingly, in order for the Court to exercise its clear jurisdiction to determine that appeal it was required, if it otherwise saw fit, to exercise the Council's function in giving consent to the making of the application so as to engage its jurisdiction to grant a valid development consent if it was minded to do so on the merits of the case. 65 Apart from the present case, the only decision in which it has been held that the Court had power to give the owner's consent under s77 (as it then was) of the EPA Act to the making of a development application in relation to land which was not a public road, was that of Stein J (as he then was) in Pimas Group Pty Ltd v Maritime Services Board (NSW) (1994) 82 LGERA 205. 66 In that case the applicant lodged a development application with the Maritime Services Board (the Board) as the consent authority under the relevant Sydney Regional Environmental Plan to construct a concrete slab over an existing concrete swimming pool. The Board was the owner of the relevant land which formed part of the bed of Sydney Harbour and which it had leased to the applicant. The Board refused to grant its consent as owner of the land for the lodgement of the development application, and the applicant appealed to the Court. 67 The Board submitted that Claude Neon should be confined to its own facts. It sought to draw a distinction between the Board's "property" powers and its "planning" powers and submitted that in respect of the subject development application, it was entitled to exercise its rights as property owner to decline to give its consent as owner to the making of the application as it did not desire any change. 68 The applicant submitted that the only consent required to the making of the development application was that of the owner under s77 of the EPA Act. That was not an exercise of the Board's powers as a property owner: rather it was a planning power to facilitate the assessment of the development application under the EPA Act. 69 After referring to the decision of this Court in McDougall as to the ambit of s39(2) and, in particular, to the statement by Cripps JA that the power of the Court could be exercised provided there was a relevant nexus between the matter the subject of the appeal and the discretion or function of the council proposed to be exercised by the Court, Stein J observed (at 208) "It seems to me plain that there is that nexus between the application and the relevant functions and discretions vested in the Maritime Services Board. Therefore, the power exists in the Court to exercise the function and discretion of the Board for the purpose of disposing of the appeal before the Court. It is a planning power (for the purposes of the Environmental Planning and Assessment Act ) and not a property power. The granting of the owner's consent to the making of the development application confers no right in property and has no effect on the lease: see Piano v Woollahra Municipal Council (1990 71 LGERA 62). In my opinion the nexus is clear. Nor do I think that Sydney City Council v Claude Neon Ltd should be cut down and confined to its own facts. It has now been confirmed on a number of occasions, including by the Court of Appeal: see, eg, Shellharbour Municipal Council v Rovili Pty Ltd . " 70 Finally, I refer to the recent decision of McClellan J in Estate Project Developments Pty Ltd v Sydney City Council (2005) 141 LGERA 86. That case also involved an application seeking to redevelop a large parcel of land in which some small sections of a public road were incorporated within the proposed development. The road was vested in the council under the Roads Act 1993. The council raised as a question of law whether the development application had been validly made. His Honour held that the fact that under the Roads Act the council was constrained from disposing of title to the land was not to the point. The Court was not being asked to exercise the council's powers of disposition. Accordingly, the Court should receive and consider the appeal. 71 It was submitted by the council that his Honour should follow the decision of Lloyd J in Hemmes Hermitage Pty Ltd v City of Sydney Council [2004] NSWLEC 539. In that case his Honour was asked to consider whether or not the Court could exercise the function of the council as the consent authority in relation to an application to develop a building in the airspace above and in the subsoil below a public road. Lloyd J identified the application as being one in which the "the proposed development amounts to alienation of the airspace above the surface of the road and an alienation of the soil beneath the surface of the road."

Accordingly, he considered that the case before him was similar to the factual situation considered by this Court in Drew . 72 McClellan J (at 92) explained the decision in Hemmes upon the basis that Lloyd J must be understood to have been considering a development application which required the Court, if consent was granted, to exercise powers beyond that of an owner for the limited purpose of the making or lodgement of the development application but which in some manner disposed of title to the relevant land. Unless Lloyd J's decision was so understood, it could not be reconciled with Claude Neon. I agree, although I do not consider that the decision in Hemmes should be so understood. 73 Under the heading "Some further thoughts", McClellan J noted the observations of Kirby P in McDougall to the effect that the exercise of a function pursuant to s39(2) of the Court Act must be considered in the context of individual cases. His Honour then observed (at 92) "26. While this statement is not controversial, care must be taken in its application. Whether or not the capacity to exercise a function pursuant to s39(2) is available in the circumstances of any case is not a matter amendable to the exercise of a discretion. Either the function, which it is suggested the Court may exercise, falls within the power afforded by s39(2) or is outside of it. The only point at which discretionary considerations could arise would be if the relevant power is available but a question arises as to whether it should be exercised. 27. Because the fundamental question in any appeal to the Court is whether or not the application warrants approval, it is difficult to contemplate a case where the Court would conclude, the power being available, that approval was appropriate but would not exercise the function of the council to consent to the lodgement of the application." 74 It is apparent from these obiter remarks of his Honour that he considered that it was open to the Court pursuant to s39(2) to exercise the function of the council as the owner of the land the subject of a development application, by exercising its power to consent to the making of that application. It is also apparent that his Honour did not consider that there was any reason for confining Claude Neon to the situation where the development application in respect of which the Court is asked to exercise to the council's function to give the owner's consent, is a public road. With respect, I would agree with that approach. 75 During the course of argument on the appeal, the Council accepted the validity of the propositions which I have set out in [34] above other than that referred to in sub-paragraph (f), which, it was submitted, begged the question. I do not agree. 76 The proposition set out in (f) is consistent with the statement by Hope JA in Claude Neon at 732D that the giving by the council of its consent to the making of an application for development consent is undoubtedly a function, the exercise of which was basic to its function as the consent authority with respect to the defamation of that application in accordance with the EPA Act (to adopt and adapt the words of Stein JA, with whom Handley and Sheller JJA agreed, in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370 at 378-379 [43]). 77 In other words, the giving by a council of its consent as owner of the land to the making of the development application is a function "in respect of the matter the subject of the appeal" as without the performance of that function either by the council or by the Court pursuant to s39(2), the "matter the subject of the appeal", being the granting of consent to that application if the merits warrant, would be beyond the court's power. 78 Accordingly, the giving of that consent to the making of the application by the Court is inextricably bound up with a function or discretion "in respect of" the determination of the appeal. 79 Although McClellan J expressed the view in Estate Project (in [27] of his judgment, recorded in [73] above) that in a case such as the present it would be difficult to contemplate the Court not exercising the function of the council to consent to the making or lodgement of the application, I do not understand his Honour to be denying that there may be exceptional cases where that function would not be exercised by the Court. Thus it was submitted by the Council that in the present case its function of giving the owner's consent to the making of Ipoh's development application was not required to be exercised where there were proper commercial reasons justifying its refusal to do so. 80 However, in the present case, no such reasons have been advanced. On the contrary, the reasons in sub-paragraph (D) referred to in paragraph (l) of [14] above, clearly involve planning or heritage considerations and not commercial considerations. But even if there were commercial considerations, in my opinion they would need to be exceptional for the Court to refuse to exercise its discretion under s39(2) to grant owner's consent to the making of the development application. 81 The Council submitted that the Court should exercise caution before exercising its powers under s39(2). In McDougall, Kirby P (at 265) referred to the "note of caution" sounded by McHugh JA in Mayoh. The President observed with respect to McHugh JA's remark: "The formation of an opinion by the Land and Environment court in circumstances such as those before him required, in his Honour's opinion, a measure of judicial restraint, since the Land and Environment Court might not always be in a position to do justice to the council's opinion, given: '…the relevant social, financial, political and environmental priorities together with potential changes in the administration of the council.' (See Mayoh at 747)'" 82 However, in the context of the present case and in light of the particular function of the Council which the Court is being asked to exercise, the factors referred to by McHugh JA in the passage from his judgment in Mayoh cited by Kirby P above, have no relevant part to play. 83 Thus, as the authorities make clear, the granting of consent to the development the subject of a particular application in respect of land owned by the council does not mean that the applicant for that consent can actually proceed with that development. All that has occurred is that one of the pre-conditions to lawfully proceeding with the development has been satisfied. 84 In the present case the granting of consent by the Court to the making of Ipoh's development application does not carry with it any right to proceed with the development the subject of that consent. Whether it proceeds or not will depend upon the provisions of cls 19 and 20 of the lease. However, it is to be noted that cl 34.3 of the lease provides that nothing therein contained shall be deemed to prohibit or inhibit Ipoh from exercising any right conferred on it by law to appeal against any decision of the Council in its capacity as the authority charged with the control of development of the City of Sydney with respect to Ipoh's use or occupation of the land. 85 In the context of the present case, the denial by the Council of its consent to the making of the development application might well be in breach of that provision insofar as it would inhibit Ipoh from successfully exercising its right to appeal to the Court against the deemed refusal by the Council of its development application. 86 Finally, I would note that the Council's submissions were essentially founded upon the proposition that because the land was classified as operational land, it was in the same position with respect to that land as any other private owner of land. With respect, I cannot agree with that suggestion. 87 As observed in [28] above, the land is public land and the Council's responsibilities with respect to it are, if not directly then indirectly, restricted by the provisions of the 1993 Act to which I have referred in [29]-[31]. The fact is that the Council is not, as the owner of the land, in precisely the same position as any other private owner of land. It has responsibilities in respect of land which it holds as an investment to which the owner of private land would not be subject. It is interesting to observe that under the 1993 Act a public road is excluded from the definition of "public land". No doubt this is because the Council's powers, functions and duties with respect to public roads, the fee simple of which are vested in it, are now governed by the Roads Act rather than the 1993 Act. 88 Nevertheless, for the reasons to which I have already referred, I do not accept that the status of land owned by a council is relevant to the question with which this appeal is concerned. Irrespective of that status, in my opinion the primary judge was correct in extending the construction of s39(2) adopted by Hope JA in Claude Neon to the land in the present case, notwithstanding that it is operational and not community land. 89 It follows from the foregoing that in my opinion his Honour was correct in answering the first preliminary question in the affirmative.

Should the primary judge have answered the second preliminary question? 90 The Council submits that his Honour should not have answered this question as first, it was unnecessary given his answer to the first question and, second, it was far too widely framed as to warrant an affirmative answer. I agree with the submission that the question as framed is sufficiently broad to include a situation where the owner of the land to which the development application relates is not a council or other statutory body but a private landholder. In my view that question should not have been answered.

Conclusion 91 For the foregoing reasons, I would propose the following orders:

(a) Leave to appeal granted upon condition that a notice of appeal setting out the grounds of appeal be filed within seven days of the date of these orders.

(b) Appeal allowed in part to the extent that the affirmative answer given by Talbot J on 21 March 2006 to Question 2 be set aside but that otherwise the appeal be dismissed.

(c) The claimant to pay the opponent's costs of the summons for leave to appeal and of the appeal.

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