The Next Generation Pty Ltd v Independent Planning Commission

Land and Environment Court (NSW)|2020-03-24|Before: Pain J

SOLICITORS: Mills Oakley (Applicant) NSW Department of Planning, Industry and Environment (First Respondent Clayton Utz (Second Respondent) HWL Ebsworth (Objector) File Number(s): 19/13009

Judgment

Jacfin Pty Ltd (Jacfin) an objector to a proposed waste energy generation facility (the development) has filed a notice of motion dated 9 March 2020 seeking the determination of questions of law in relation to the scope of s 8.12(3) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Jacfin sought to rely on s 36(5) of the Land and Environment Court Act 1979 (NSW) (LEC Act) whereby a question can be referred to the Chief Judge for determination by a judge. No such order was made. Regardless, the question raised in the notice of motion can be considered by the Court.
The Applicant is the proponent of the development. The Independent Planning Commission (IPC) (the First Respondent) is the relevant consent authority. The Applicant has filed an appeal pursuant to s 8.7 of the EPA Act following refusal of its Development Application number SSD 6236 (the DA) by the IPC. Jacfin received a notice of that appeal as provided by s 8.12(1)(a) and (2) of the EPA Act. It exercised the right referred to in subs (3) by writing to the Court. At issue is what doing so allows Jacfin to do in the Applicant's appeal.
Blacktown City Council (the Council) has been joined as a party by the Court as provided by s 8.15(2) of the EPA Act. It did not make submissions on Jacfin's notice of motion.
The DA is state significant development. It would otherwise be designated development but for s 4.10(2) of the EPA Act.
The notice of motion asks the following questions: 1 Whether, on the true construction of the Environmental Planning and Assessment Act and in the events that have happened: a. Jacfin Pty Ltd is a party referred to in s 8.12(3) of the Environmental Planning and Assessment Act and has all the rights equivalent to that of a party to the proceedings; b. Jacfin Pty Ltd as an objector referred to in s 8.12(3) of the Environmental Planning and Assessment Act has all the rights equivalent to that of a party to the proceedings; and c. Jacfin Pty Ltd can be lawfully excluded from any part of the hearing, including any part of the conciliation conference under section 34 of the Land and Environment Court Act
Questions (a) and (b) are alternatives. Question (c) is a procedural matter which arises from the determination of the earlier questions. The key procedural aspect of question (c) is whether Jacfin and its experts can participate in any confidential communications at any conciliation conference between the parties. In the course of argument the ability of Jacfin to otherwise participate in the case management for the final hearing was also identified as an issue.

Environmental Planning and Assessment Act 1979

Relevant sections of the EPA Act provide: Part 1 Preliminary … 1.3 Objects of Act The objects of this Act are as follows - … (c) to promote the orderly and economic use and development of land, … (j) to provide increased opportunity for community participation in environmental planning and assessment. … Part 8 Reviews and appeals … Division 8.3 Appeals - development consents 8.6 Decisions subject to appeal to Court under this Division (1) A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division. … 8.7 Appeal by applicant - applications for development consent (cf previous s 97) (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. … 8.8 Appeal by an objector - designated development applications (cf previous s 98) (1) This section applies to the determination of an application for development consent for designated development (including any State significant development that would be designated development but for section 4.10(2)), being a determination to grant development consent, either unconditionally or subject to conditions. (2) A person who duly made a submission by way of objection during the public exhibition of the application for development consent (an objector) and who is dissatisfied with the determination of the consent authority to grant consent may appeal to the Court against the determination. 8.10 Time within which appeals may be made [Recently amended on 25 March 2020 by the COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act. Application of that amendment is not relevant to the resolution of this matter and is therefore not set out.] … (2) An appeal under this Division by an objector may be made only within 28 days after the date the objector is notified of the decision appealed against. … 8.12 Notice of appeals to be given and right to be heard (cf previous s 97A) (1) The following are entitled to be given notice of an appeal made under this Division - (a) an objector, in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division, (b) an applicant for development consent and the consent authority, in the case of an appeal under this Division by an objector concerning the application for development consent, (c) a Minister or public authority, in the case of an appeal concerning an application for development consent in respect of which the concurrence of the Minister or public authority is required under this Act, (d) the relevant approval body (within the meaning of Division 4.8), in the case of an application for development consent that involves the approval body. (2) Any such notice of appeal is to be given by the relevant consent authority. (3) Anyone who is given any such notice of appeal is, on application to the Court within 28 days after the notice is given, entitled to be heard at the hearing of the appeal if not already a party to the proceedings [emphasis added]. (4) In this section, a reference to an application for development consent includes an application to modify a development consent. 8.13 Effect of appeals on operation of consents (cf previous s 83(2)-(5)) … (2) If an appeal under this Division is discontinued, the consent is revived on the discontinuation of the appeal. … 8.14 Powers of Court on appeals (cf previous s 39(6A) Land and Environment Court Act) (1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. … 8.15 Miscellaneous provisions relating to appeals under this Division (cf previous s 97B; s 39A Land and Environment Court Act) … (2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion - (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that - (i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal. … Part 10 Miscellaneous 10.10 Right to be heard Except as provided by this Act or the regulations, if this Act confers a right on a person to be heard, that person shall be entitled to be heard personally or by an Australian legal practitioner or agent. … Schedule 5 Development control orders … Part 11 Effect of orders and compliance with orders … 35 Enforcement of orders by cessation of utilities … (8) An owner or occupier of premises, or a provider of water, electricity or gas to premises, who is affected by an application for a utilities order is entitled to be heard and represented in proceedings for the order. …
Prior to 1 March 2018 s 97A of the EPA Act provided (emphasis added): Part 4 … Division 8 Appeals and related matters … 97A Notice of appeals to be given and right to be heard (1) The consent authority must give notice of an appeal under section 97, 97AA or 98: (a) to an objector, in the case of an appeal concerning a development application in respect of which the objector may appeal under section 98, or (b) to the relevant Minister or public authority, in the case of an appeal concerning a development application in relation to which the concurrence of a Minister or public authority is required under this Act, or (c) to the relevant approval body (within the meaning of Division 5), in the case of a development application to carry out integrated development that involves the approval body. (2) A council must give notice to a regional panel of any appeal under section 97, 97AA or 98 in respect of a determination made by the panel or that may be reviewed by the panel under this Act. (3) A council must give notice to the Planning Assessment Commission of any appeal under section 97, 97AA or 98 in respect of a determination made by the Commission or that may be reviewed by the Commission under this Act. (4) A person or body who is given notice of an appeal under this section is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if the person or body were a party to the appeal. (emphasis added)

Land and Environment Court Act 1979

Relevant sections of the LEC Act provide: Part 4 Exercise of jurisdiction … Division 4 Special provisions respecting Class 1, 2 or 3 proceedings 34 Conciliation conferences (1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court - (a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and (b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference. (1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference. (2) A conciliation conference is to be presided over by a single Commissioner. (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner - (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. (4) If no such agreement is reached, the Commissioner must terminate the conciliation conference and - (a) unless the parties consent under paragraph (b), must make a written report to the Court - (i) stating that no such agreement has been reached and that the conciliation conference has been terminated, and (ii) setting out what in the Commissioner's view are the issues in dispute between the parties, or (b) if the parties consent to the Commissioner disposing of the proceedings, must dispose of the proceedings - (i) following a hearing, whether held forthwith or later, or (ii) with the consent of the parties, on the basis of what has occurred at the conciliation conference. …

Land and Environment Court Rules 2007

Relevant provisions of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) provide (recently amended on 15 May 2020 by Land and Environment Court (Amendment No 1) Rule 2020 (NSW) as shown in square brackets below): Part 3 Proceedings in Class 1, 2 or 3 of the Court's jurisdiction … 3.2 Originating process (1) The originating process to commence proceedings is an application prepared in the approved form. ... 3.4 Parties to appeals under the Environmental Planning and Assessment Act 1979 (1) Any application to be heard at the hearing of an appeal that is made under section 97A (4) [now 8.12(3)] of the Environmental Planning and Assessment Act 1979 is to be made by means of a letter, addressed and delivered to the Registrar, that identifies the appeal proceedings. (2) As soon as practicable after receiving such an application, the Registrar is to give notice of that fact to all of the parties to the appeal. (3) In an appeal under section 98 (1) [now 8.8] of the Environmental Planning and Assessment Act 1979, the consent authority and the person who made the development application are to be named as respondents and served with the appeal.
To the extent there were assertions of fact in the course of submissions, these were not disputed in these proceedings.

Second Reading Speech of the Environmental Planning and Assessment Amendment Bill 2017

Jacfin relied on the Second Reading Speech of the Environmental Planning and Assessment Bill 2017 (NSW) (EPA Amendment Bill) dated 18 October 2017 and subsequent Second Reading Debate dated 15 November 2017.
On the benefits of the amendments for the community, Mr Anthony Roberts former Minister for Planning commented in the Second Reading Debate as follows (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 November 2017 at 17): This bill will improve planning for our communities, councils and businesses across the State. It will do this by increasing faster, simpler processes; enhanced strategic planning; improved community confidence and participation; and more balanced and transparent decision-making.

Environmental Planning and Assessment Amendment Bill 2017 Explanatory Note

In the Explanatory Note to the EPA Amendment Bill, the new Pt 8 (Reviews and appeals) is described as follows (at p 7): Schedule 8.1 [2] revises and consolidates in a new Pt 8 existing provisions throughout the principal Act about reviews of planning decisions and appeals to the Land and Environment Court. The provisions apply in relation to applications for and the grant of development consent, building and subdivision certification, development control orders and other miscellaneous decisions.

Interpretation Act 1987

Section 33 of the Interpretation Act 1987 (NSW) provides: Part 5 Construction of Acts and instruments 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

Jacfin's submissions

The answers to the three questions in the notice of motion are: (1) yes (preferred, Jacfin is a party); or (2) yes (alternative, Jacfin is an objector with rights equivalent to a party); and (3) no (Jacfin should not be excluded from confidential communications at any conciliation conference).
The statutory basis for Jacfin to be heard is Div 8.3 of the EPA Act. The amendment of the words "as if the person or body was a party to the appeal" in former s 97A(4) to read in s 8.12(3) "if not already a party to the proceedings" does not in any way alter the standing and rights of an objector to a designated development. The intention of the amendment of former s 97A(4) by s 8.12(3) was to rationalise the drafting and not limit or reduce the rights of an objector in these circumstances.
The DA is state significant development that would be designated development but for s 4.10(2) of the EPA Act. Under s 8.8(1), had the consent authority determined to refuse or conditionally approve the DA, Jacfin would have acquired a right of appeal against the determination. The appeal rights under ss 8.8(2) (appeal by objector) and 8.7(1) (appeal by applicant) are equivalent. Both permit an appeal to be brought due to dissatisfaction with a determination of a development application (DA).
The Second Reading Speech of the EPA Amendment Bill makes clear that the March 2018 amendments to the EPA Act were intended to promote outcomes that ensure community participation. The changes do not intend to vitiate or impinge on the public participation objectives of the EPA Act: s 1.3(j).
An intention to remove or limit third party rights of appeal was not expressed in the Explanatory Note or Second Reading Speech. Section 33 of the Interpretation Act does not only remedy ambiguity - it provides that context is to be considered in the first instance and in the broadest possible sense: CIC Insurance v Bankstown Football Club Inc (1997) 187 CLR 384; [1997] HCA 2 at 408.
In Jacfin's submission, the change in wording of s 8.12(3) to "if not already a party to the proceedings" clearly contemplates rights akin to those of a party: 1. the words of s 8.12(3) recognise that all of those listed in subs (1) are parties and have a right to be heard on the hearing of the appeal; 2. there is no requirement that any of those listed in subs (1) be joined as a party to an appeal; and 3. the words "if not already a party to the proceedings" in s 8.12(3) confirm that an objector who makes application to the Court having received notice of the appeal becomes a party, since the provision acknowledges that there is no occasion to confer the entitlement if the person is already a party.
Under s 8.12(2) notice of an appeal must be given by the relevant consent authority, here the IPC, in relation to the notices of appeal referred to in subs (1). If an applicant appeals (subs (b)) then all within subs (a), (c) and (d) receive a notice of appeal. If an objector appeals (subs (a)) then all within subs (b), (c) and (d) are notified by the consent authority. It cannot be the case that if an applicant appeals an objector's statutory rights are any less than if an objector had appealed. In an objector's appeal the applicant is given notice and has the same status as an objector in an applicant's appeal. This informs the construction of s 8.12(3) of "entitled to be heard at the hearing of the appeal if not already a party". These words should be given a broad meaning to give effect to public participation rights in planning processes.
If the Court answers the question against Jacfin then a breach of the Court's jurisdiction will have occurred because this would be a failure to accord statutory rights. The Court must promote the objectives of the EPA Act. Alexandria Landfill Pty Ltd v Sydney City Council [2004] NSWLEC 639 (Alexandria Landfill) at [6], [9] and Lowy v The Land and Environment Court of NSW (2003) 123 LGERA 179; [2002] NSWCA 353 (Lowy) at [88] and [89] support Jacfin's approach. On this approach, a person who gives relevant notice is entitled to be heard at the hearing of the appeal, if not already a party, and they thereby become a party. Jacfin is hence a party as confirmed by Mason P in Lowy.
M H Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council [2018] NSWLEC 56 (M H Earthmoving) at [78] was wrongly decided and should not be followed. Molesworth AJ incorrectly described the community group as an "intervenor" under the EPA Act. It was not. Neither was it a "non-party". Mason P in Lowy confirmed that an active intervenor has all the rights of a party, including appeal rights. Jacfin is not an intervenor. It is an objector conferred with statutory rights.
The legislative change to the EPA Act has now removed any question as to Jacfin's rights. Former s 97A(4) used to refer to being heard "...as if it were a party". The current provision s 8.12(3) now simply says "… entitled to be heard at the hearing of the appeal if not already a party to the proceedings", meaning that at the hearing of the appeal an objector is entitled to be heard with party status. The right to be heard includes participation in the confidential part of the conciliation conference.
The Applicant's approach of construing legislation by reference to rules of court is not a correct approach to statutory construction (see approach in pars 15 and 16 of the Applicant's written submissions). In NSW Commissioner of Police v Rabbits Eat Lettuce (2019) 371 ALR 719; [2019] NSWCA 182 (Rabbits Eat Lettuce) Leeming JA identified that delegated legislation cannot change the meaning of a statute. Leeming JA referred to s 68(3) of the Interpretation Act. Section 8.12 of the EPA Act should not be construed in light of the LEC Rules.
Jacfin received the notice of appeal from the IPC and responded by exercising its ability to participate in these proceedings. It is entitled to be heard in all respects not just at the final hearing and that includes participating in the confidential part of a conciliation.
Contrary to the Applicant's submissions, the Court does not need to determine if Jacfin is a party as it has rights equivalent to a party meaning it can participate in all aspects.
The right to be heard at the final hearing of the appeal also requires that Jacfin and its experts have the opportunity to fully participate in case management.
In reply, the task of statutory construction should not focus so heavily on the words that have been removed and try to work out why they were removed or otherwise. Instead, the task of statutory construction should focus on how the section reads: Rabbits Eat Lettuce (Leeming J) at [40].
Second, there is no ostensible reason why an objector, who has taken the trouble to write an objection and indicated a wish to be heard in accordance with s 8.12(3), would have less status than the objector who wishes to bring proceedings in respect of the refusal in the first place. This controversy is alive when the objector files an appeal. To suggest that the objector in one instance has lesser status than in the other instance is an absurdity. This fails to give full effect to the rights conferred by s 8.12(3).
Finally, the Applicant has not addressed the definition of the word "hearing" in the Civil Procedure Act 2005 (NSW) to include interlocutory proceedings and trials.

Applicant's submissions

The answers to the three questions in the notice of motion are: (1) no (Jacfin is not a party); (2) no (Jacfin is not an objector with rights to participate as if a party); and (3) yes (Jacfin cannot participate in the confidential communications between the parties at the conciliation conference).
The text, operational context and legislative history support the construction contended for by the Applicant that Jacfin is not a party and has no rights which equate to those of a party under s 8.12(3).

Text

The text of s 8.12(3) makes a distinction between the person the express subject of the provisions ("anyone") and a person with the status of a "party" to the proceedings. Jacfin is an objector for the purpose of s 8.12.
As required by s 8.12(1) Jacfin received the required notice. Jacfin performed an action bringing itself within s 8.12(3) by sending a letter to the Court.
A wider contextual review of Div 8.3 and the EPA Act assists the question of statutory construction. Division 8.3 distinguishes between parties and objectors in other types of applications. For example, under s 8.10(2) an objector must appeal within 28 days after being notified of the decision appealed against. Section 8.12(1) has different operations depending on the type of application involved. The EPA Act provides the degree of procedural fairness it intends to provide by reference to its express provisions. Jacfin's reliance on general notions of procedural fairness do not apply to the specific EPA Act scheme.
The function of the Court is to "hear and dispos[e]" of the appeal: s 8.14(1). These are distinct functions. The EPA Act recognises that there may be disposal of an appeal without a hearing. This is expressly seen in s 8.13(2), providing for the operation of a consent when an appeal is discontinued. The EPA Act does not expect there will always be a hearing of an appeal. The EPA Act therefore recognises that a hearing in the Court is one of many potential end points for a DA. The hearing must therefore be distinct from any process leading up to it, including disposal of a matter by any other means, including under s 34(3) of the LEC Act concerning conciliation conferences.
There are three different statutory contexts for participation in an appeal process under the EPA Act reflecting different levels of entitlement. Firstly, a party, including those so joined under s 8.15(2). Secondly, under s 8.12(3) "a person entitled to be heard at the hearing of the appeal." Section 8.12(3) distinguishes between "anyone" and a person with the status of a "party". The conferral of entitlement on a "person" under the section occurs because they are not otherwise a party to the proceedings. Thirdly a "...person entitled to be heard and represented in the proceedings..." as identified in cl 35 of Sch 5 of the EPA Act concerning development control orders. A right to be heard at a hearing does not extend to participation in a conciliation conference under s 34 of the LEC Act. A conciliation conference is a different statutory creature to a hearing. These provisions show that the EPA Act distinguishes between processes leading up to a hearing and the final hearing, where this occurs. The landowner or other person the subject of cl 35(8) of Sch 5 is provided with an opportunity to participate in the whole proceedings. A person to whom s 8.12(3) is directed does not have such a right.
A number of aspects of the Court's functions are determined by whether a person is a "party" or any form of "non-party". Section 63(1) of the LEC Act recognises the right of a "person entitled to appear before the Court" to have representation, reinforcing the important difference between a "party" and a "person". Rule 4.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) acknowledges the right of a person to file documents in a proceeding.

Operational context

Had the application been granted development consent, Jacfin would have had a right to appeal to the Court under s 8.8(2) of the EPA Act. It would have then had to commence those proceedings by filing a Class 1 application: LEC Rules r 3.2(1). It would then be a listed applicant and a formal party. In that scenario, the proponent (applicant) and consent authority would need to be notified. Neither would need to have used the mechanism under s 8.12(3) because both would have been parties to those proceedings: LEC Rules r 3.4(3).
The mechanism for Jacfin to bring itself within s 8.12(3) was to complete a letter addressed to the Registrar: LEC Rules r 3.4(1). The parties (Applicant and First Respondent) would not receive that letter hence the rules provide for the Registrar to give notice of that event to the parties: LEC Rules r 3.4(2). No equivalent status of party is conferred on Jacfin as otherwise occurs under r 3.4(3). This does not support the view that the drafting of a letter renders a person/objector of equivalent status to a party to the proceedings.

Mischief

The mischief addressed by s 8.12(3) is that a person who objected to a state significant development that was otherwise designated and who wishes to repeat that objection on an appeal by the proponent might get lost amongst other objections. There were over 1,000 objections to the DA. Where a DA is refused the consent authority is the appropriate contradictor. Jacfin submitted there was no mischief as s 4.15 of the EPA Act requires the consent authority to take into account public submissions. The consent authority is obliged to take into account those relevant objections that are made.
Jacfin is an objector with a right of appeal under s 8.8(2) provided elsewhere in Div 8.3 if development consent was granted. If it wishes to avail itself of participating as a party it has a right to apply to the Court under s 8.15(2) for leave to do so.

Legislative history

The words in former s 97A of "...entitled to be heard at the hearing of the appeal as if the person or body were a party to the appeal" have been repealed. The repealed words do not inform the construction of s 8.12(3).
Former s 97A has been largely but not wholly replicated in s 8.12. Importantly the words in former s 97A(4) are not replicated in s 8.12(3). Something less than treating the person "as if the person… were a party" is now what is intended.
Lowy and Alexandria Landfill looked at former statutory provisions which no longer exist. They are of no assistance for that reason. Further, in Lowy the extent to which the case considered questions of status was limited. It was only about status given to people who benefit from "Double Bay Marina orders" under s 38 of the LEC Act. No resolution was reached on whether such persons are "parties" for the purpose of appeal rights. In contrast, Molesworth AJ was correct in M H Earthmoving and the Court should not depart from that decision.

First Respondent's submissions

Jacfin is not a party and cannot participate in the confidential part of the conciliation conference. The Applicant's submissions are adopted. In reply to Jacfin, the First Respondent does not concede that Jacfin is equivalent to a party and that there is no difference between "a party" and "equivalent to a party". Rather, Jacfin is not a party on a proper statutory construction of s 8.12(3) of the EPA Act, nor is it an equivalent party. Section s 8.15(2) of the EPA Act is the proper mechanism by which Jacfin should be participating should it wish to have the rights of a party.

Consideration

It is necessary to construe s 8.12(3) of the EPA Act in order to determine the issues arising in the notice of motion. This is apparently the first case where the subsection has had to be construed since it was introduced by the Environmental Planning and Assessment Amendment Act 2017 (NSW) (EPA Amendment Act). The EPA Amendment Act omitted former Pt 4, Div 8 of the EPA Act which contained s 97A and identified s 8.12 as its replacement through the words "cf previous s 97A". Principles of statutory construction require the words of a statute to be considered in their context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 381-382 (McHugh, Gummow, Kirby and Hayne JJ) cited by Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2018) 231 LGERA 145; [2018] NSWLEC 26 at [61]. Section 33 of the Interpretation Act requires a construction which promotes the purpose or object of an Act over one which would not. A general principle of statutory construction is that where words are plain and unambiguous they should be given their ordinary and grammatical meaning: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ) cited in Roden v Bandora Holdings Pty Ltd (2015) 213 LGERA 103; [2015] NSWLEC 191 at [42]. As the Applicant identified, the High Court confirmed a number of these principles recently in Australian Securities and Investments Commission v King (2020) 376 ALR 1; [2020] HCA 4 at [24] and [29] where Kiefel CJ, Gageler and Keane JJ, referred to "text, context and purpose" and "legislative context, history and purpose". It will be necessary to consider all these as the words in s 8.12(3) lack clarity in their terms and in the overall statutory scheme of the EPA Act.

Legislative content, history and purpose

If the Applicant's construction is correct the change in the statutory scheme as a result of the EPA Amendment Act will be the first time since designated development was introduced at the outset of the EPA Act in 1979 that objectors to such development have not been able to participate as a party in a proponent appeal. The original EPA Act gave objectors entitlement to be heard at the hearing of the appeal as if a party to the appeal in s 97(2), then s 97(4) which became s 97A(4) by virtue of the Planning Appeals Legislation Amendment Act 2010 (NSW). A significant reduction in an important appeal right in an Act in which third party participation in planning appeals has been a hallmark should not be lightly inferred in the absence of clear Parliamentary intention (as is the case here).
There are many examples of third party objectors participating as a party in proponent appeals concerning designated development, for example CEAL Limited v Minister for Planning (2007) 159 LGERA 232; [2007] NSWLEC 302 at [4] and Addenbrooke Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 95 at [3] under former s 97(4), and Barca v Wollondilly Shire Council [2015] NSWLEC 1124 at [12] and Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158 at [5], under former s 97A(4).
As Jacfin submitted, the history of the amendment or more relevantly the lack of history behind the amendment, informs construction of the text in s 8.12(3). The Second Reading Speech for the EPA Amendment Bill, which can be referred to in light of s 34 of the Interpretation Act, did not refer to any changes in the EPA Act in Div 8.3 "Appeals - development consents". The only general reference referred to by Jacfin and set out in [13] above was in the reply of the then Minister for Planning to debate on the Second Reading Speech. In other words no explanation for why the wording in s 97A(4) changed when s 8.12(3) was made has been identified in any relevant extrinsic materials.
This history suggests that Jacfin's submission that the amendment of s 97A(4) was not intended to limit or reduce the rights of an objector is correct. The Applicant submits that general submissions about affording procedural fairness have no application in construing s 8.12(3) but such considerations do inform the statutory context of the EPA Act, particularly where the words in issue are quite unclear. Such a consideration is relevant context and together with the significance of changing s 97A(4), as the Applicant contends for, favours Jacfin's construction.
Alexandria Landfill considered whether a person should be joined as a party where they already had rights as an objector under s 97(4) (predecessor to s 97A(4)) of the EPA Act. The objector sought joinder as a party under s 39A of the LEC Act arguing that if joined there was a greater likelihood that it would be able to mount an appeal. The objector argued that if not joined it may otherwise be open to the other parties to challenge its standing to appeal under s 97(4) of the EPA Act because of ambiguity arising from the words "as if he, she or it were a party to the appeal". I noted at [6] that there have been appeals to the Court of Appeal where s 97(4) has been the basis for participation by objectors in this Court in which no issue was raised about the existence of an appeal right. The words in s 97(4) mean that an objector is entitled to participate as a party and this includes the right to appeal from a decision of this Court as a party, reinforced by s 98 which gives an objector to designated development appeal rights.
Section 97(4) (precursor to s 97A(4)) did not arise directly in Lowy which addressed inter alia whether a party granted leave to participate in a Class 1 appeal through the making of a "Double Bay Marina order" had rights to bring an appeal in the Court of Appeal. In Lowy a neighbour objecting to a development (Mr Lowy) was refused joinder by Cowdroy J as a party under the Supreme Court Rules 1970 (NSW) Pt 8 r 8 (now repealed) to a Class 1 appeal brought by an applicant under s 97 (now s 8.7) of the EPA Act. Cowdroy J held that Mr Lowy could participate through the making of a "Double Bay Marina order", the alternative order sought. The Class 1 appeal was heard by Lloyd J who allowed the appeal and granted consent for the proposed development on conditions. Mr Lowy brought proceedings in the Court of Appeal against the Land and Environment Court alleging an error of law by Lloyd J and claiming both prerogative and appellate relief.
The Court of Appeal addressed procedural issues (whether Cowdroy J erred in refusing to join Mr Lowy as a party to the applicant's Class 1 appeal and subsequently whether Mr Lowy had the right to appeal from the decision of Lloyd J) and the substantive issue (whether Mr Lowy established an error of law by Lloyd J). On the procedural issues, Giles JA at [103] upheld the decision not to join Mr Lowy as a party meaning he could not appeal the decision of Lloyd J and at [88] confirmed that in ordinary circumstances the only parties to an applicant's appeal are the applicant and the consent authority. Giles JA observed in obiter that where the development is designated development an objector is not a party but can be heard as if a party to the appeal which is distinct from being heard as a party to the appeal. Mason P reserved his position on the procedural issues, stating at [5] that he was not convinced that the active intervener status conferred on Mr Lowy by Cowdroy J did not make him a party with ensuing appellate rights. Handley JA observed at [7] that the "Double Bay Marina order" made in Mr Lowy's favour substantially, if not completely, protected his position in the Court of Appeal. The Applicant relied on the obiter observations of Giles JA at [88]. No other member of the Court supported that observation. Mason P in obiter hinted at a different view and Handley JA did not consider the matter. Little assistance can be gained from Giles JA's obiter observations in these circumstances.
The status quo under s 97A(4) and former provisions of the EPA Act at the time of the EPA Amendment Act was that an objector to designated development could be a party in a proponent appeal.

Text

Considering the text, s 8.12(3) of the EPA Act states that a person given notice of an appeal under s 8.12(1) who applies to the Court is "...entitled to be heard at the hearing of the appeal if not already a party to the proceedings…". The words are ambiguous in meaning and scope on their own terms, and in their statutory context. Jacfin's submissions focussed on "if not already a party to the proceedings" suggesting the rights conferred are those of a party. The Applicant focussed on "entitled to be heard at the hearing of the appeal", effectively submitting that the words "if not already a party to the proceedings" have little work to do. The words participating "as if a party" in the former s 97A(4) have been changed. The words in s 8.12(3) do not appear in any other environmental or planning statutes in NSW or indeed any other NSW statutes, somewhat curiously. This serves to emphasise the unique nature of the statutory scheme under the EPA Act. "Hearing" is not defined in the EPA Act.
Considering the terms of Div 8.3 dealing with appeals concerning development consents, the appeal rights under ss 8.7(1) (appeal by applicant) and 8.8(2) (appeal by objector to designated development) are equivalent. The legislative scheme in the EPA Act for merit appeals for designated development lacks coherence if the rights of an objector to a designated development diverge substantially between an objector appeal as permitted by s 8.8(2), where an objector is the applicant party, and a proponent appeal as permitted by s 8.7(1), where the proponent is the applicant party. No such divergence existed under the former scheme. As already noted earlier in my finding, given that there is no indication in extrinsic material that Parliament intended to make such a fundamental change to the former scheme suggests that is not what was intended when the EPA Amendment Act was passed.
I agree with Jacfin's submissions that the change in words to "if not already a party to the proceedings" does contemplate rights akin to those of a party for the reasons given in [21] above. As stated, the words in s 8.12(3) recognise that the entities listed in subs (1) are parties, there is no requirement that those listed in subs (1) be joined as a party to an appeal and the words confirm that an objector who makes application to the Court becomes a party, as the provision acknowledges that there is no occasion to confer the entitlement if the person is already a party. The requirement in subs (2) for a consent authority to give notice of the appeal in subs (1) applies equally to those listed in subss (a), (c) and (d) if an applicant appeals, and to those listed in subs (b), (c) and (d) if an objector appeals.
Does the statutory right of Jacfin under the EPA Act refer to the ability to be heard only at a final hearing? Although not stated expressly, that is the assumption underpinning the Applicant's submissions of what "hearing" means. The word "final" does not appear before "hearing" in s 8.12(3). This issue is identified in the Applicant's submissions at [38] above referring to s 8.14 which states that the purposes of the Court on appeal are to hear and dispose of an appeal. The Applicant points to the word "dispose" to submit that the EPA Act contemplates that a matter may be disposed of by more than one method apart from being heard (at a hearing). The Applicant submits there are three levels of entitlement to participate in proceedings: (i) as a party; (ii) in the terms of s 8.12(3); and (iii) as a person entitled to be heard and represented in proceedings in Sch 5 cl 35(8), which deals with the enforcement of development control orders by the making of a utilities order. This is said to be the EPA Act drawing a distinction between the process leading up to the hearing and the hearing as an event. As there is no specific provision in the EPA Act which does so distinguish, and hearing is not defined, such a restrictive approach to the word "hearing" is not warranted by the EPA Act. The only legislative definition of "hearing" that could apply is in the Civil Procedure Act, where the definition includes final and interlocutory hearing processes.
The Applicant identified that s 10.10 of the EPA Act states that a person entitled to be heard can be heard personally or by a legal practitioner or agent. This was submitted to distinguish a "non-party" person from a "party". Considering the EPA Act at this level of generality rather than focussing on the operation of the section in issue is not particularly informative about the change in wording in s 8.12(3).
All these considerations of legislative history and text suggest that the correct construction of s 8.12(3) is that Jacfin is a party in the Applicant's appeal.

Land and Environment Court Act 1979 and Land and Environment Court Rules 2007

The Applicant's submissions assumed that the statutory construction task in relation to the EPA Act required consideration of the LEC Act and LEC Rules. From a statutory construction perspective that is not immediately obvious. The LEC Act is separate, albeit with some overlapping subject matter with the EPA Act.
These are Class 1 merit appeal proceedings for the purposes of the LEC Act filed by the Applicant as the proponent for development pursuant to s 8.7 of the EPA Act. The Court has jurisdiction to hear appeals referred to in s 8.12 under ss 8.7 and 8.8 by virtue of s 8.6(1) of the EPA Act and s 17(d) of the LEC Act. "Hearing" is not defined in the LEC Act or the LEC Rules. As already noted, in the Civil Procedure Act "hearing" is defined as both trial and interlocutory hearing. The LEC Act specifies how matters are to be managed before it, including in Class 1 appeals, supported by the LEC Rules as necessary. That the Court has implemented management procedures for matters including s 34 conciliation conferences does not assist greatly in determining the scope of "hearing" under the EPA Act.
As underscored by the facts before the Court, if an objector is not a party from the outset of a proponent appeal under s 8.7 of the EPA Act, and a s 34(1) conciliation process under the LEC Act occurs which results in an agreement accepted by a commissioner of the Court as required by s 34(3), that objector does not get the opportunity to participate in any hearing, however defined. A conciliation conference under s 34(1) of the LEC Act is generally required in Class 1 proceedings: Practice Note LEC Class 1 Development Appeals at [32]. Section 34(4) provides that if no agreement is reached in a conciliation conference the commissioner must terminate the conference and, if the parties consent, the proceedings can be disposed of following a hearing pursuant to s 34(4)(b)(i), or the proceedings are disposed of on the basis of what has happened at the conciliation conference pursuant to s 34(4)(b)(ii). That management processes exist to encourage conciliation for merit appeals conducted under the LEC Act should not drive construction of the EPA Act in limiting the scope of the statutory right in s 8.12(3). If excluded from a s 34 conciliation process an objector also runs the risk of not being able to participate as a party in any hearing process which may arise under s (4)(b)(i) or the process resulting in a final determination under s 4(b)(ii).
The Applicant also provided a list of circumstances in which it submitted that the status of a person as a party was critical to the operation of multiple aspects of the Court's function under the LEC Act, citing ss 22, 34(1A), 56A(1), 57(1) and 67A, and in relation to the LEC Rules citing rr 3.5, 3.7(2) and 3.7(3). Given that courts, including this Court, generally deal with parties, the multiple references in the LEC Act and LEC Rules to "party" are orthodox. The Applicant cited these examples because it was submitting that "party" in all these circumstances should not be read as extending to an objector. That can be accepted and I do not understand that reflects any submission of Jacfin but does not take the statutory construction task under the EPA Act any further. The relevance of these submissions to construing s 8.12(3) of the EPA Act is not clear.
Possibly more relevant is the distinction between a "person" entitled to appear, as stated in s 63(1) of the LEC Act, from a "party". "Person" is defined in the EPA Act as "person includes an unincorporated group of persons or a person authorised to represent that group". As I noted above at [62] the Applicant identified that s 10.10 of the EPA Act also provides similarly that a person entitled to be heard can be heard personally or by a legal practitioner or agent. Section 63(1) of the LEC Act and s 10.10 of the EPA Act are general provisions which simply provide for representation of a person before the Court in various ways. Such general provisions are just that, general.

Operational context (according to Applicant)

Rule 3.4(3) of the LEC Rules specifies how an application for an appeal by an objector to a designated development under s 8.8(1) is to be made, requiring that the consent authority and a proponent must be named respondents. The Applicant relied on this rule as supporting its argument. No equivalent provision exists for a proponent appeal under s 8.7(1). As Jacfin submitted, relying on Leeming JA in Rabbits Eat Lettuce at [25]-[26], delegated legislation should not be used to change the meaning of a statute. That r 3.4(3) of the LEC Rules (delegated legislation) requires an applicant in an appeal under s 8.8(2) of the EPA Act to join the consent authority and the proponent as respondents provides no assistance in construing s 8.12(3) of the EPA Act. That is simply a procedural mechanism specified in the LEC Rules and can rise no higher than that from a statutory construction perspective.

Mischief?

Is there a mischief which is being addressed, as argued by the Applicant? The Applicant submits that s 8.12(3) ensures that an objector who writes to the Court in time thereby benefits from being heard at the hearing of the appeal. That objector gains additional rights to any others who do not do the same and must instead rely on the consent authority (here the IPC) to manage their position being put to the Court. The mischief of an objector getting lost in the crowd, if that be a mischief, did not exist under the former statutory regime. The change in wording cannot be described as addressing a mischief which already existed, the more usual basis for suggesting particular drafting is addressing a mischief.

Section 8.15(2)

The Applicant and First Respondent rely on the existence of s 8.15(2) of the EPA Act as providing a mechanism for joinder as a party as another means which Jacfin could avail itself of. Joinder under s 8.15(2) is not as of right. A successful application requires an applicant for joinder to demonstrate that the Court's discretion should be exercised in their favour. As Jacfin submitted, an automatic right to participate in an appeal as a party is an important statutory right, here under s 8.8(2).
The issues in M H Earthmoving were different to the issues I have been presented with as the applicant in that case was not relying on s 8.12(3) in seeking to participate in a s 34 conference. I do not need to canvas that decision further in order to resolve this matter and do not therefore need to consider the parties' submissions in relation to it.

Conclusion

For all the above reasons the answers to two of the three questions posed in [5] above can be provided (question (b) need not be answered) as follows: 1. On the true construction of the Environmental Planning and Assessment Act 1979 and in the events that have happened: 1. Jacfin Pty Ltd is a party referred to in s 8.12(3) of the Environmental Planning and Assessment Act 1979; 2. no answer necessary; 3. Jacfin Pty Ltd cannot be lawfully excluded from any part of the hearing, including any part of the conciliation conference under s 34 of the Land and Environment Court Act 1979.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2020

Environmental Planning and Assessment Amendment Act 2017(NSW)

Land and Environment Court (Amendment No 1) Rule 2020(NSW)

Planning Appeals Legislation Amendment Act 2010(NSW)

Interpretation Act 1987(NSW)ss 33, 34, 68

Land and Environment Court Act 1979(NSW)ss 17, 22, 34, 36, 38, 39A, 56A, 57, 63, 67A

Land and Environment Court Rules 2007(NSW)rr 3.2, 3.4, 3.5, 3.7

(2007) 159 LGERA 232

(2003) 123 LGERA 179

(2018) 231 LGERA 145

(2015) 213 LGERA 103

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