Before the Court this morning is a motion for expedition of an appeal commenced by summons pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) from a judgment handed down by Commissioner Chilcott at 4:15pm yesterday afternoon: Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1222. The summons and the notice of motion were filed yesterday evening by Zhiva Living Dural Pty Ltd ('applicant').
Somewhat unusually, the applicant seeks that the s 56A appeal be heard at 2:00pm this afternoon before a judge of this Court and, in the event that the appeal against Commissioner Chilcott's decision is upheld, the applicant seeks an order, in the s 56A summons, that the matter be remitted to the Commissioner for further hearing and determination prior to 4:00pm tomorrow, 24 May 2019. The respondent, represented by Mr Ward, neither consents to nor opposes the application for expedition.
The background to this matter may be briefly stated. The Class 1 appeal before Commissioner Chilcott was an appeal by the applicant in relation to the deemed refusal by Hornsby Shire Council ('respondent') of Development Application DA/668/2018 lodged 16 July 2018 ('DA') for the demolition of structures and the construction of a seniors housing development at 3 Quarry Road and 4 Vineys Road, Dural ('site'). The development is a residential care facility permissible pursuant to the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ('SEPP') and involves the construction of seven two‑storey buildings, a central facilities building, a two‑storey residential aged care facility with attic, and associated facilities including car parking, internal access roads and other related development.
The hearing before the Commissioner commenced on 6 May 2019, occupied five days and included extensive evidence. Further, the hearing involved an attendance at the site and some 350 pages of transcript.
In support of the motion for expedition (and urgent hearing), the applicant reads two affidavits of its solicitor, Matt Sonter, sworn 22 and 23 May 2019 respectively. Mr Sonter deposes that the urgency arises because, as the development is permissible pursuant to the SEPP, a prerequisite for the Court exercising its jurisdiction, or indeed the respondent granting consent, is for a valid Site Compatibility Certificate ('Certificate') to be in force. The Department of Planning and Environment issued a Certificate for the site on 24 May 2017 which expires tomorrow. This is the reason for the extreme urgency with which the matter has been brought before the Court today. Based upon the submissions I have received and the transcript of proceedings before the Commissioner, it is clear that the Commissioner was well aware of the expiration date of the Certificate.
Considering the Commissioner's judgment, it is clear that he dealt solely with one discrete matter, which he referred to as a jurisdictional precondition, being the application of cl 55 of the SEPP, which provides:
A consent authority must not grant consent to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system.
He found that the proposed development did not provide for a fire sprinkler system and, although the absence of provision for a fire sprinkler system was not raised in the contentions filed by either party, it was a matter which the Commissioner had specifically raised during or towards the end of the hearing.
Having raised his concern in relation to whether the development before him satisfied the terms in cl 55 of the SEPP, the Commissioner was furnished with a draft proposed condition ('condition 29A') which provided, as far as I am aware, that a fire sprinkler system within the proposed residential care facility would be provided in fulfilment of the requirements of cl 55 of the SEPP.
The parties each provided submissions to the Commissioner and it is relevant to note that the respondent agreed with the applicant that the inclusion of the proposed condition 29A would be sufficient to ensure the proposed development complied with the provisions of cl 55 of the SEPP. Despite this, in his judgment at [41], the Commissioner found:
The provisions of cl 55 cannot be satisfied by the inclusion of one or more conditions upon the grant of consent, as the Court's power to grant consent is only enlivened following (emphasis added) their satisfaction, and prior to the grant of consent.
In the judgment at [23]-[25], the Commissioner set out the contentions that had otherwise been raised by the parties (which I add have not been determined by him for reasons to which I shall come), which, apart from a contention as to whether the application could rely upon the Certificate, included the design of the proposed development, whether the design satisfied various provisions of the SEPP including cll 17, 24 and 25 and other concerns in relation to the Hornsby Development Control Plan 2013. The respondent's contentions also raised various concerns including character and context, the management of stormwater, the management of waste, remediation of land, traffic impacts and potential impacts on ecology.
In passing, I note that none of the abovementioned matters were dealt with by the Commissioner who, given the reasons set out in his judgment, concluded that in his view the proposed development, as it was before him, did not include a fire sprinkler system for the residential care facility component. The Commissioner noted that he reached that conclusion notwithstanding the fact that the parties had provided specific responses to his expressed concern regarding the provision of a fire sprinkler system.
The s 56A appeal summons sets out four grounds upon which the applicant will contest that the Commissioner's finding amounts to an error of law and raises two discrete categories upon which the grounds fall under. First, there was error associated with the finding that the proposed development for the purpose of a residential care facility for seniors did not include fire sprinklers and, second, failure to afford the parties procedural fairness in relation to the matter about which the Commissioner held concerns and provide an opportunity to address that matter.
The primary ground raised in the s 56A appeal summons relates to the Commissioner's understanding that cl 55 of the SEPP required that a consent authority must not grant consent unless the proposed development included a fire sprinkler system and that cl 55 could not be satisfied by the inclusion of one or more conditions imposed upon the grant of consent. Having reached that view, the Commissioner found that he did not have power to grant consent to the DA and in those circumstances he concluded that the appeal must be dismissed, noting at [43]:
…further consideration of the contentions in this appeal is otiose.
The legal principles relating to a court's consideration of an application for expedition are well-known and do not invite repetition except to note that there is no specific power dealing with expedition either in the Civil Procedure Act 2005 (NSW) ('CP Act'), the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), the Land and Environment Court Act 1979 (NSW) or the Land and Environment Court Rules 2007 (NSW). The power to grant expedition is to be found in s 61 of the CP Act and r 2.1 of the UCPR. Section 61 of the CP Act enables the Court to give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings, and r 2.1 of the UCPR provides that the Court, at any time, is able to give such directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings.
The principles guiding the exercise of the Court's discretion to grant expedition, if they can be so labelled, were considered by Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 ('Greetings Oxford Koala') at 42 and 43. Given the urgent nature of this application, I do not repeat those principles.
Mr Sonter deposes that the applicant has expended significant sums of money in relation to the development of the site, including $750,000 in costs associated with various applications made to the respondent and the relevant authorities, and $1.5 million in securing the land. Mr Sonter also notes that the hearing before the Commissioner was conducted over five days and involved extensive expert reports marshalled by the applicant in relation to planning, traffic, ecology, bushfire, stormwater and civil engineering.
I have heard detailed submissions today from Ms Duggan, senior counsel for the applicant, and I do not mean any disrespect by not repeating each of her submissions. Ms Duggan has taken me to the evidence of Mr Sonter in some detail and she has indicated the matters which she submits are relevant and should be taken into account. As well as Ms Duggan's careful submissions, I have been provided with and have considered an outline of submissions to be made in the s 56A appeal hearing.
Ms Duggan submits that as significant funds and time have been invested in the hearing, the resolution of the s 56A proceedings in a timely manner will serve the interests of justice in various ways and will permit the potential determination of the Class 1 application within the finite time frame provided by the Certificate which expires tomorrow. Ms Duggan submits that the question to be determined on the appeal is confined, the Commissioner's refusal of the application related to only one discrete legal point and that the objectives of the SEPP are matters of some public importance, referring to the aims of the policy.
As I indicated during the course of the hearing, it is my view that the Court ought not, in an application for expedition, make an assessment of the applicant's chances of success. However, I note that in Greetings Oxford Koala, Young J indicated, at 43, that a court should not expedite a case if it considers that, in all the circumstances, the chances of the applicant obtaining what it seeks in the litigation cannot be put as "higher than speculative". His Honour was not dealing there with the prospects in an appeal but, in my view, his sentiment is appropriate for the present matter. For clarification, I express no view in relation to the prospects of the s 56A appeal although I do not consider that the prospects could be described as speculative.
Whether a court or a Commissioner should deal with all issues on the basis that he or she may be incorrect (and be overturned) and therefore allow the Court on appeal to consider whether to determine the matter, is a frequently expressed concern raised by courts of appeal. In any event, and without any criticism, there are no findings of the Commissioner in relation to the outstanding issues which are noted at [23]-[25] of his judgment.
In relation to the application for expedition (seeking an urgent hearing of the appeal today), there are two primary matters which I find are determinative against the grant of expedition.
First, while I accept that there are genuine concerns residing with the applicant, that the prospects of the s 56A appeal are not speculative, and that the hearing involves a discrete issue, I express no other view. Despite this, I consider the extraordinary urgent relief now sought in this application before me to be partly, if not wholly, impractical.
Even if there were available resources to enable the s 56A hearing to progress before a judge of this Court this afternoon, and even if that judge is able to hear the matter, give appropriate consideration, and provide an appropriately considered judgment in relation to the discrete matter the subject of the appeal, there is in my view little likelihood and indeed no guarantee, that if the appeal was upheld and the matter remitted to Commissioner Chilcott, that the Commissioner would be, first, available, and second, in a position to deliver judgment in relation to the various issues which remain outstanding and which have clearly not been the subject of consideration in the judgment in the time frame otherwise suggested by the applicant - that is, before the expiration of the Certificate tomorrow.
Indeed, the only reference to those outstanding issues is the articulation of those matters at [24]-[25] of the Commissioner's judgment. I accept Ms Duggan's submission that some of these issues have been narrowed as a result of joint expert conferencing, however, in any event, it could not be assumed that the Commissioner would be able (or available), to be in a position to give judgment in relation to those matters which, as I have indicated, were presumably the subject of various expert reports and some 350 pages of transcript.
Although Ms Duggan submitted that the "risk" that the Commissioner may not be able, for whatever reason, to deliver his judgment, was a risk which the applicant was prepared to bear, I do not consider that this is a matter which I should take into account.
The second matter of significance is that there is no evidence before me that another Certificate would not be able to be obtained. Indeed, the evidence is that an application for another Certificate was made some time ago and is awaiting consideration by the relevant department. That is not to suggest that I underestimate the likely spent costs associated with this particular development application as detailed by Mr Sonter, however the expiration of the Certificate on its own, is not, in my view, a matter that is otherwise determinative of the application before me, although I accept that it is the primary factor in relation to the application for expedition.
For the above reasons, I am of the view that the motion should be dismissed and the s 56A proceedings be listed for directions at a time convenient to the parties. That is not to suggest, despite my findings in relation to this extraordinary application, that the matter is not otherwise deserving of some form of expedition such as a compressed timetable, if the applicant is still desirous that the matter be progressed.
[2]
Orders
The orders of the Court are:
1. The motion for expedition is dismissed.
2. The matter is adjourned to Tuesday 28 May 2019.
[3]
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: 29 May 2019
Parties
Applicant/Plaintiff:
Zhiva Living Dural Pty Ltd
Respondent/Defendant:
Hornsby Shire Council
Legislation Cited (6)
('CP Act'), the Uniform Civil Procedure Rules 2005(NSW)
('UCPR'), the Land and Environment Court Act 1979(NSW)