The Dubler Group Pty Ltd v Ku-ring-gai Municipal Council & Anor - [2004] NSWLEC 305 - NSWLEC 2004 case summary — Zoe

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The Dubler Group Pty Ltd v Ku-ring-gai Municipal Council & Anor

[2004] NSWLEC 305

Land and Environment Court (NSW)|2004-07-01|Before: Pain J, Mr P, Mr J, Ms J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2004-07-01

Before

Pain J, Mr P, Mr J, Ms J

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

The Applicant in these Class 4 proceedings seeks certain declarations concerning the operation and validity of State Environmental Planning Policy 53 - Metropolitan Residential Development (Amendment No 10) ("Amendment 10") made by the Minister which renders the development the subject of the development application made by the Applicant to the Respondent Council prohibited. Except in relation to costs, no orders are sought in relation to the Council in these Class 4 proceedings. Background
The Dubler Group Pty Limited ("the Applicant") lodged a development application with the Council, pursuant to State Environmental Planning Policy 53 - Metropolitan Residential Development ("SEPP 53"), for consent to carry out a dual occupancy development on certain land within the Ku-ring-gai local government area on 30 May 2003. The Applicant initiated Class 1 proceedings in this Court on 12 August 2003 against the deemed refusal of that development application by the Council. Those Class 1 proceedings are part-heard and have been stood over for final determination until after these proceedings are finalised.

[2]

On 19 December 2003 SEPP 53 was altered by Amendment 10. The Amendment lists certain land within the Ku-ring-gai local government area, including land identified on the map marked "State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (Amendment No 5) Bush Fire Evacuation Risk Map" in Sch 3 of SEPP 53. The land so identified in Sch 3 includes the land the subject of the Applicant's development application. Clause 16(2) of SEPP 53 provides that SEPP 53 does not apply to land within the area described in Sch 3. Thus the effect of Amendment 10 is that SEPP 53 no longer applies to the land the subject of the Applicant's development application and the development for which the Applicant has sought consent from the Council is no longer permissible.

[8]

(i) Interpretation of cl 33 of SEPP 53 11. Before determining whether cl 33 of SEPP 53 grants to the Applicant such a right or privilege as the Applicant contends, it is first necessary to construe cl 33 to determine its meaning. (a) statutory construction, applying the Interpretation Act 1987 12. The Minister submits that cl 33 must be interpreted in light of the heading to cl 33, with the effect that it only applies to development applications lodged before the policy commenced. Section 35(2) of the Interpretation Act 1987 has the effect that the heading to cl 33, "Development applications made before commencement of Policy", is not part of SEPP 53. Section 35(5) of the Interpretation Act 1987 states that extrinsic aids to the interpretation of legislation can only be used if s 34 of the Interpretation Act 1987 applies. Section 34(2)(a) of the Interpretation Act 1987 provides that the heading to a provision is relevant extrinsic material which may be considered in interpreting the provision if s 34(1) of the Interpretation Act 1987 applies. Section 34(1) of the Interpretation Act 1987 relevantly provides that reference to extrinsic material for the purpose of interpreting the provision of a statutory rule may only be made: … (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision … leads to a result that is manifestly absurd or is unreasonable . The Minister argues that the grounds identified in s 34(1)(b) of the Interpretation Act 1987 are made out in relation to cl 33. 13. The Minister submits that the heading to cl 33 makes it clear that cl 33 is not intended to have any operation in relation to development applications lodged and amendments made to SEPP 53 after SEPP 53 commenced. The Minister submits that the proper construction of cl 33 suggests that it is a transitional savings provision limited to development applications made before SEPP 53 commenced on 26 September 1997. The Minister asserts that the interpretation put forward by the Applicant produces a manifestly absurd result in that the Applicant would be immune from changes to the law occurring after the date on which the development application is made.

[39]

The Wednesbury standard was described as "extremely confined" in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36. Brennan J, at 37, emphasised that: The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to doing administrative justice: interests which are not represented as well as interests which are represented must often be considered. Morevever, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.
Applying these principles I find that the opinion of the Minister to the effect that Amendment 10 concerned matters of significance for environmental planning for the State was not unreasonable in the Wednesbury sense. The Applicant accepts that SEPP 53 concerns matters of significance for environmental planning for the State. The joint tender bundle provided by the parties includes two submissions signed by the Minister on 18 December 2003 before making Amendment 10 being: (a) a submission to the Minister recommending that the Minister form the opinion that the proposed amendments to SEPP 53 are of significance for environmental planning for the State for the reasons set out in that submission. (b) a submission to the Minister recommending that the Minister agrees to recommend to the Governor the making of Amendment 10 for the reasons set out in that submission. The submissions to the Minister referred to above state that Amendment 10 does not diminish the main objectives of SEPP 53 being "the provision of housing in metropolitan areas that will broaden the choice of building types and locations available in the housing market" but instead "ensures that the housing being promoted by SEPP 53 is appropriately located, where the form of the development being excluded (dual occupancy), in the bushfire affected areas, is less likely to be occupied by a vulnerable population." Thus the Minister's opinion that Amendment 10 was of significance for environmental planning for the State would seem to be based on the role which Amendment 10 will play in ensuring that vulnerable populations, albeit vulnerable populations located within certain areas in Ku-ring-gai, are less likely to be located in bushfire prone areas.
The fact that Amendment 10 applies only to a small area of the State does not prevent it being of State significance. Further, the Applicant's argument that the SEPP could have been amended by an LEP to deal with this matter as a localised issue does not prevent the matter being the subject of a SEPP if the Minister forms the necessary opinion under cl 39(3).

Parties

Applicant/Plaintiff:

The Dubler Group Pty Ltd

Respondent/Defendant:

Ku-ring-gai Municipal Council & Anor

Cases Cited (11)

CITATION : The Dubler Group Pty Ltd v Ku-ring-gai Municipal Council & Anor [2004] NSWLEC 305 APPLICANT The Dubler Group Pty Ltd PARTIES : FIRST RESPONDENT Ku-ring-gai Municipal Council SECOND RESPONDENT Minister for Infrastructure Planning and Natural Resources FILE NUMBER(S) : 41591 of 2003 CORAM: Pain J KEY ISSUES: Judicial Review :- whether s 34(4) of the EP&A Act preserves a right to have SEPP as in force when development application lodged apply at determination of Class 1 appeal despite amendment to SEPP after lodgement of DA - whether Minister's decision to amend SEPP ultra vires because of s 34(4) - whether Minister acted reasonably in forming the opinion that matter was of State significance when amending SEPP Environmental Planning and Assessment Act 1979, s 34(4), s 39(3), s 74(1), Interpretation Act 1987, s 30, s 34, s 35 Land and Environment Court Act 1979 LEGISLATION CITED: Local Government Act 1919 State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability, cl 26 State Environmental Planning Policy 53 - Metropolitan Residential Development, cl 16(2), cl 33, cl 44 State Environmental Planning Policy 53 - Metropolitan Residential Development (Amendment No 10) ACI Pet Operations Pty Ltd v Comptroller of Customs & Anor (1993) 118 ALR 114; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Bromley London Borough Council v Greater London Council [1983] 1 AC 768; Burton v Drummoyne Council (1997) NSWLEC 160; Byron Shire Council v Greenfields (1999) 105 LGERA 445; Continental Liqueurs Ltd v Heublein & Bro Inc (1960) 103 CLR 422; Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374; Director of Public Works v Ho Po Sang (1961) AC 901; CASES CITED: Druitts Developments Pty Ltd v Gosford City Council (2001) 114 LGERA 61; Esber v The Commonwealth (1991) 174 CLR 430; IDA Safe Constructions Pty Limited v Woollahra Municipal Council (1981) 48 LGRA 62; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Urban Affairs and Planning v Rosemount Estates (1996) 91 LGERA 31; Q & R Developments Pty Ltd v Sutherland Shire Council (2001) 117 LGERA 438; Robertson v City of Nunawading [1973] VR 819; Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1996) NSWLEC 237; Sofi v Wollondilly Shire Council (1975) 31 LGRA 416; Ungar v City of Malvern (1979) VR 259; Warringah SC v Koala-Ty Pizza Pty Ltd (1988) 65 LGRA 316 DATES OF HEARING: 22/03/2004 DATE OF JUDGMENT: 07/02/2004

(2004) 133 LGERA 438

(1993) 118 ALR 114

(1990) 170 CLR 1

(1999) 105 LGERA 445

(1960) 103 CLR 422

(2001) 114 LGERA 61

(1991) 174 CLR 430

(1986) 162 CLR 24

(1996) 91 LGERA 31

(2001) 117 LGERA 438

Cited By (1)

The Dubler Group Pty Limited v Ku-ring-gai Council