HIS HONOUR: On 20 July 2016, the development application, DA16/0618, was lodged with Wingecarribee Shire Council (the Council) seeking development consent for the construction of a residential flat building at 1 Kangaloon Road, Bowral. A number of steps followed from that. Relevantly, for the purposes of the present proceedings, a Notice of Determination of that development application was issued on 4 April 2017. The application was determined by refusal. The refusal decision was made by Mr Nicholas Wilton, an officer of the Council who holds the role Group Manager, Planning Development and Regulatory Services.
In the material before me (Evidence Book, Exhibit A), I have, as at the relevant periods of time, copies of the Council's organisational structure that demonstrate that Mr Wilton is only subordinate to the General Manager of the Council and the Deputy General Manager, Corporate Strategy and Development Services.
I also have in evidence before me a copy of the organisational chart of those employees of, and contractors to, the Council who are subordinate to Mr Wilton. As at the relevant date, it clearly identifies that a Mr Wayne McDonald, who was engaged by the Council at the relevant times, was a contract town planner subordinate in the organisational structure to Mr Wilton.
On 11 May 2017, a request was made to the Council to review the determination. That request was made under what was then known as s 82A of the Environmental Planning and Assessment Act 1979 (the EP&A Act). It will be necessary later, when I make orders in these proceedings, to address the EP&A Act as it is presently numbered, as from 1 March 2018. By statute law reform legislative amendments, the EP&A Act has been renumbered in a decimal numbering fashion, now conventionally adopted for legislation in New South Wales. As at the date of the commencement of the proceedings, the renumbering of the EP&A Act had occurred.
On 11 May 2018, after receipt of the application for a review, that review was allocated to Mr McDonald for him to assess. Mr McDonald undertook a process of assessment. However, on 14 September 2017, Mr McDonald purported to sign a Notice of Determination for that development application as a result of his review. That Notice of Determination set aside, in effect, the determination made by Mr Wilton refusing development consent and, in lieu thereof, substituted a determination granting consent subject to conditions.
Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 173 | Case summary | Zoe
Since that time, through a history not needing to be set out in these proceedings, the Council became aware of that determination and took a series of steps seeking to have the development consent either surrendered or set aside.
However, on 6 April 2018, the Council commenced Class 4 judicial review proceedings in the Court seeking to have the determination set aside.
The application to set the Summons aside was made on the basis that there had been a breach of the EP&A Act in the making of the determination by Mr McDonald pursuant to the review process because, pursuant to s 8.3(4)(b) of the EP&A Act (which is in terms corresponding to s 82A(6)(a) of the EP&A Act as formerly numbered) when a review of a determination or decision that had been made by a delegate of a council, that review could only be undertaken (for the purposes of determining the review) by another delegate of the Council who was not subordinate to the delegate who made the original determination or decision.
The terms of that provision did not act to prevent Mr McDonald from undertaking an assessment of the determination that had been asked to be reviewed. What that section did prohibit was Mr McDonald making any determination with respect to the review, as he was clearly, for the reasons I have earlier articulated, subordinate to Mr Wilton and thus incapable of satisfying the relevant statutory provision.
For the purposes of these proceedings, and the question of substantive relief, I note that the Council has also pleaded several other grounds upon which it is said the Notice of Determination purportedly made by Mr McDonald should be set aside. As I am satisfied that the terms of the present s 8.3(4)(b) were infringed by Mr McDonald's purported determination, it is unnecessary for me to address the other grounds advanced by the Council, as that breach is, in itself, sufficient to warrant intervention.
The question that then arises is whether I should do so.
In terms of the present proceedings, I note, as well, that the Council had needed to seek an extension of time within which to commence the proceedings. That extension of time was dealt with by Pepper J in Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146, a decision in which her Honour granted the appropriate extension of time, thus permitting the proceedings to be dealt with by me on a substantive basis.
The formerly numbered s 124 of the EP&A Act (now numbered s 9.4(6)(i) of the Act) grants me a discretionary power to make orders and declarations that would have the effect of remedying or restraining an actual breach of the EP&A Act, a breach which I am satisfied has occurred, for the reasons I have earlier outlined.
In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, the then President of the Court of Appeal set out a number of guidelines to be engaged in assessing whether or not the discretion that is available to me pursuant to the now s 9.4(6)(i) of the EP&A Act should be exercised.
One of the critical elements that is dealt with by his Honour in that decision is the role of a council in seeking to protect the statutory planning scheme established in the legislative framework enacted by the Parliament in the EP&A Act. In this case, although the errors that give rise to the proceedings are clearly ones which arose within the Council's administration, that does not in any sense amount to disentitling conduct for the purposes of my consideration of discretion.
There is no doubt that that which has occurred as a consequence of Mr McDonald's purported exercise of a power that he did not have to grant the consent for the development sought in the original development application is one which should not be allowed to stand because, if it did so, it would undermine the integrity of the administration of the relevant local environmental plan by the Council.
For completeness, I should note that at the commencement of the proceedings today I indicated to Ms Hemmings, counsel for the Council, that I was concerned that the substantive relief sought in the Council's Class 4 Summons required a degree of procedural modification and not substantive adjustment to make sure that there were appropriate statutory references contained in it. I provided to Ms Hemmings a copy of a draft and, after some exchange between her and me, that draft has been refined in a further minor fashion.
I thought it prudent, given that the First and Second Respondents in these proceedings have, through their solicitor, Mr Bagley, filed an Appearance and Statement of Submission in the terms of which it was noted that each of the Respondents submitted to the making of the orders sought, that I should provide Ms Hemmings with an opportunity for her and her instructing solicitor to make contact with Mr Bagley and to inform him of the revised terms of the orders that I considered it appropriate to make in these proceedings.
Ms Hemmings has advised me that that conversation has been had and that Mr Bagley consents to the modifications to the orders that I have proposed and have now been settled with Ms Hemmings.
The consequence of all of that is that I am satisfied that I should deal with the matter by making two substantive orders.
I note, on the question of costs, that the Council does not suggest that there should be any costs order made in its favour and that the statement of submission that had been made by Mr Bagley on behalf of the First and Second Respondents expressly noted that that acceptance of the functional outcomes of the proceedings sought by the Council was on the basis that there would be no order for costs made in the proceedings, a position that I am satisfied is entirely appropriate under the circumstances.
It therefore follows that I make the following orders:
1. The Court declares the development consent purportedly granted on 14 September 2017 by Wingecarribee Shire Council for DA16/0618.01 with respect to Lot 10, DP808740, 1 Kangaloon Road, Bowral, is invalid and of no effect, as the consent was granted in breach of what is now numbered as s 8.3(4)(b) (formerly s 82A(6)(a)) of the Environmental Planning and Assessment Act 1979 (the EP&A Act);
2. Pursuant to 9.4(6)(i) of the EP&A Act, the First and Second Respondents are restrained from carrying out development in accordance with the development consent granted on 14 September 017 for DA16/0618.01 with respect to Lot 10 DP808740, 1 Kangaloon Road, Bowral;
3. The exhibits are returned; and
4. No order as to costs.
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Decision last updated: 31 October 2018