Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council

Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council - [2008] NSWLEC 39 - NSWLEC 2007 case summary — Zoe

[49]

None of that which was approved in M619/00 related to the area of land now identified as site 68 and that was the approval and the second document, which we were told the applicant relies on, is an approval to operate a caravan park under Chapter 7 of Part 1 of the Local Government Act 1993 which relates to 64 short-term sites, six holiday cabins, one manager's residence and six associated storage sheds dated 29 June 2005, expiring on 28 June 2010. Now that's under the Local Government Act and that doesn't, as our submission would run, create lawfulness in any town planning sense. 23 The council tendered a bundle of documents from its files (Exhibit 9) and challenged the appellant to find a relevant development consent in it. There was no evidence that it was an exhaustive bundle or as to what investigations had been carried out by the council when compiling it. In that bundle was a 1999 development consent by this Court in a class 1 appeal for an "additional" nine caravan sites. The word "additional" therein and in the 22 December 2000 notice of determination suggests that there was development consent for the existing sites. Condition 17 of that 1999 development consent required an "approval" to operate a caravan park and/or camping ground issued by the council on 15 October 1997 to be updated to reflect the additional nine sites. The last-mentioned "approval" was not in the bundle tendered before the Commissioner but was tendered by the council before me. It was an approval under s 68 of the LG Act. 24 On the second day of the hearing before the Commissioner, counsel for the council sought a concession that "development consent is a pre-requisite to the granting of a s 68 approval". Counsel for the appellant did not make the concession but said: "If development consent is required then development consent is required". The Commissioner raised whether the way forward was to deal with "whether development consent is required as a threshold issue". Both counsel agreed. The Commissioner invited submissions as to whether there was an existing consent, and concluded by indicating that she would now proceed to hear "submissions on the point to do with development consent". Oral submissions followed but have not been transcribed and are not before me. 25 The council's Statement of Issues, the council report referred to at [47] of the Commissioner's judgment and, inferentially, the development consents of 1999 and 22 December 2000 for "additional" sites all suggested that development consent had been given for the subject site. Until the council spoke by the mouth of its counsel at the hearing it never said otherwise. Yet the council succeeded on the basis that development consent for the subject site had not been given. The development consent issue arose in a procedurally unsatisfactory way which creates the perception that the existence of a development consent may not have been fully investigated or adequately addressed, particularly by the appellant.

[59]

36 As to whether there is power to admit further evidence on the appeal, s 56A of the Land and Environment Court Act 1979 relevantly provides: (1) A party to proceedings in Class 1, 2 or 3 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) On the hearing of an appeal under subsection (1), the Court shall: (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. 37 The terms of a statutory grant of a right of appeal determine the right, if any, to adduce further evidence on the appeal: CDJ v VAJ (1998) 197 CLR 172 at 197 [95]. The Land and Environment Court Act 1979 does not expressly confer power upon the Court to receive further evidence on a s 56A appeal. There is no provision in that Act equivalent to s 75A(7) of the Supreme Court Act 1970, which empowers the Supreme Court to receive further evidence on an appeal. Three decisions of the Land and Environment Court indicate that it is not empowered to hear further evidence on a s 56A appeal. In Shao v Hornsby Shire Council (2001) 116 LGERA 462 at [25] Cowdroy J held: "S 56A of the LEC Act does not empower the Court to hear fresh evidence on an appeal which is confined solely to a question of law. To do so would be to render such appeal a re-hearing which s 56A of the LEC Act does not contemplate". In C M Hairis Architects v Waverley Council [2003] NSWLEC 404 at [3] Pain J held in the context of a s 56A appeal: "it is not appropriate that fresh evidence not before the Commissioner be tendered and considered by the Court on appeal". In Vaughan v Byron Shire Council [2002] NSWLEC 157 at [5] - [7] Lloyd J was inclined to the view that there was no power to admit fresh evidence but preferred to base his decision not to do so on the absence of power in the Court to make findings of fact on a s 56A appeal. If the court was not empowered to make findings of fact, there was no purpose in admitting the further evidence. 38 The conclusion that this Court is not empowered to make findings of fact on a s 56A appeal is supported, by analogy, by decisions of the Court of Appeal relating to s 57(1) of the Land and Environment Court Act 1979 which permits an appeal from this Court to the Supreme Court "on a question of law", and relating to similar provisions under other legislation. In Roads and Traffic Authority v Perry (2001) 52 NSWLR 222 at 235 [63] the Court of Appeal, after reviewing the authorities, held that its jurisdiction under s 57 "is limited to deciding questions of law, and we cannot make findings of fact". This passage was quoted by the Court of Appeal in Patrick Operations Pty Ltd v Comcare (2006) 68 NSWLR 131 at 145 [52]. That case was concerned with an appeal under s 32 of the Dust Diseases Tribunal Act 1989 (NSW) which permits an appeal to the Supreme Court "in point of law or on a question as to the admission or rejection of evidence" and is otherwise in very similar terms to s 57(2) of the Land and Environment Court Act 1979. Giles JA (Ipp and Tobias JJA agreeing) held at 145 [56]: I remain of the view that, if it finds error in point of law, this Court cannot make for itself findings of fact necessary for disposal of the proceedings. That does not mean that, if error in point of law be established, remission to the Tribunal must always occur. The error may be such that, upon correction, this Court can dispose of the proceedings, for example if it be held that as a matter of law the appellant did not owe a duty of care to the respondent. If the findings of fact already made are sufficient for the purpose and there is no question of finding other facts, this Court can pronounce the result in law correct on those facts. If there be error in the admission or rejection of evidence, it may be that this Court concludes that the error did not affect the outcome, and accordingly the appeal is dismissed. These and like possibilities readily explain why s 32 provided that the Supreme Court may remit the proceedings to the Tribunal for determination and may make such other order in relation to the appeal as [it] seems fit . They warrant reading and between the two limbs of s 32(2) as or , and the congruence with s 57(2) of the Land and Environment Court Act to which Handley JA referred in Maurici v Chief Commissioner of State Revenue . But the power to make such other order in relation to the appeal as the Court sees fit does not carry with it making findings of fact. 39 In my opinion, having regard to these appellate authorities, this Court's jurisdiction under s 56A is limited to deciding questions of law, and it cannot make findings of fact. Accordingly, it is pointless to admit further evidence for the purpose of making findings of fact. That suggests that there is no power to admit further evidence on a s 56A appeal, as the cases in this Court referred to above at [37] have held, at least for the purpose of making findings of fact. 40 These principles, if unqualified, make the further evidence tendered by the appellant inadmissible in the appeal and preclude a finding of fact in the appeal as to whether the 20 December 2000 notice of determination was received by the appellant. However, for the reasons indicated at [41] - [42] below, it is unnecessary (a) to apply the principles in the present case; (b) to consider whether there is any relevant qualification to the principles where the purpose of the evidence is to establish that the Commissioner's judgment was based on a mistaken assumption induced by the conduct of the successful party (in the present case by an alleged innocent misstatement that the 20 December 2000 notice of determination was not sent to the appellant); and (c) to consider, alternatively, whether any such contention has to be advanced, not on a s 56A appeal, but on an application to set aside the judgment: Kendell v Carnegie (2006) 68 NSWLR 193 at [44] - [52]; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 511.

[61]

(a) the development consent issue was never an issue in the proceedings until it was raised at the hearing by the council; (b) this Court's practice is to raise such matters as preliminary points; (c) the fact that a development consent existed was conceded by the council in its Statement of Issues; (d) the Commissioner made her decision regarding which of the two December 2000 notices might apply notwithstanding that when the question of whether the 20 December notice had been sent to the appellant was raised late in the proceedings, she agreed to the request of the appellant's counsel that the question be reserved for further clarification; (e) the council had granted numerous consents to use the land as a caravan park; (f) it should not have raised the development consent issue belatedly or at all and, in doing so, it put the appellant to difficulty in the preparation and presentation of its case, thus necessitating this appeal; (g) reference was made to Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401. 44 Part 16 r 4(2) of the Land and Environment Court Rules 1996 provides that in proceedings such as these "no order for the payment of costs will be made …unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable". This rule was recently considered by the Court of Appeal in Port Stephens Council v Sansom [2007] NSWCA 299 and Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300. The principles relating to indemnity costs because of unreasonable conduct were recently considered by me in Shellharbour City Council v Stewart [2007] NSWLEC 727 at [22]. 45 It may be said that the development consent issue was raised by the council in a procedurally unsatisfactory way. On the other hand, the appellant agreed to it being decided. Further, the initial grounds of, and submissions in, the s 56A appeal before me did not raise the issue on which the appellant has succeeded. Initially, the hearing before me proceeded on a misapprehension by counsel for the appellant (who did not appear at the hearing before the Commissioner) that the 20 December 2000 notice of determination was the notice the subject of the judgment. That of itself necessitated an adjournment of the hearing before me in order that the appellant's legal representatives could reformulate the grounds of appeal and submissions, and consider whether to seek leave to adduce further evidence that the 20 December 2000 notice of determination had been received by the appellant. After the hearing resumed, the grounds of appeal were amended.

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