Al Maha Pty Ltd v Huajun Investments Pty Ltd

[2018] NSWCA 245

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245

Hearing dates:

5-6 September 2018

Decision date:

26 October 2018

Before:

Basten JA at [1];
Leeming JA at [41];
Preston CJ of LEC at [42]

Decision:

(1)   Quash the decision made in the Land and Environment Court on 26 February 2018 granting consent to development application N0429/16 lodged on behalf of Huajun Investments Pty Ltd with the City of Canada Bay Council, as amended by the decision of the Court on 7 June 2018 (the development consent).

 

(2)   Declare that the development consent is invalid.

 (3)   Order that the first respondent (Huajun Investments Pty Ltd) pay the costs of the applicant, Al Maha Pty Ltd, in this Court.

Catchwords:

JUDICIAL REVIEW – decision of Land and Environment Court Commissioner – decision to grant consent to development application for residential flat building that contravened height development standard – decision in accordance with parties’ agreement reached at conciliation conference – whether Commissioner lacked jurisdiction to make decision – development partly on neighbouring owner’s land – whether neighbouring owner’s consent was required to development application – whether Commissioner formed the requisite opinions of satisfaction to justify contravention of development standard – whether decision to grant development consent was legally unreasonable – whether conciliation conference was validly constituted

CIVIL PROCEDURE – power to amend orders – “slip rule” – Commissioner’s decision to amend orders under slip rule – amendments to conditions of consent and approved plans – whether order valid – Uniform Civil Procedure Rules 2005, r 36.17

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cl 4.6
Environmental Planning and Assessment Act 1979, ss 4, 75H, 76, 76A, 76B, 77, 78A, 79C, 80, 97
Environmental Planning and Assessment Regulation 2000, cll 49, 50; Sch 1, cll 1, 2; Sch 2, cll 6, 7
Interpretation Act 1987, s 48
Land and Environment Court Act 1979, ss 17, 18, 19, 31, 34, 34A, 34B, 34C, 36, 39, 56
State Environmental Planning Policy (Infrastructure) 2007, cl 101
State Environmental Planning Policy No 1—Development Standards, cll 7 and 8
Supreme Court Act 1970, s 69
Uniform Civil Procedure Rules 2005, r 36.17

Cases Cited:

Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13
Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 226 LGERA 54; [2017] NSWCA 263
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Cheetham v Goulburn Motorcycle Club Inc (2017) 223 LGERA 43; [2017] NSWCA 83
Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81; [2006] NSWCA 339
Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300
Federated Engine-Drivers’ and Firemen’s Association of Australasia v Broker Hill Pty Co Ltd (1911) 12 CLR 398
Forrest and Forrest Pty Ltd v Wilson (2017) 91 ALJR 833; [2017] HCA 30
Housing Commissioner (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Huajun Investments Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1087
Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23
Leichhardt Council v Serratore [2005] NSWCA 406
McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300
Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195
North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20
Owners – Strata Plan 37762 v Pham [2005] NSWLEC 500
Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7
Roads and Maritime Service v Desane Properties Pty Ltd [2018] NSWCA 196
Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208
Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287
Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17

Category:

Principal judgment

Parties:

Al Maha Pty Ltd (Applicant)
Huajun Investments Pty Ltd (First Respondent)
Land and Environment Court (Second Respondent)
City of Canada Bay Council (Third Respondent)

Representation:

Counsel:
Mr T Robertson SC, Mr Lazarus (Applicant)
Mr P Tomasetti SC, Mr J Doyle (First Respondent)
Submitting appearance (Second Respondent)
Submitting appearance (Third Respondent)

  Solicitors:
Project Lawyers (Applicant)
Colin Biggers Paisley (First Respondent)
Crown Solicitors Officer (Second Respondent)
Hall and Willcox Lawyers (Third Respondent)

File Number(s):

2018/164491

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Civil

Citation:

[2018] NSWLEC 1087

Date of Decision:

26 February 2018

Before:

Smithson C

File Number(s):

2017/131433

Judgment

1. BASTEN JA: The first respondent, Huajun Investments Pty Ltd (“Huajun”), owns a parcel of land at 38-42 Leicester Avenue, Strathfield. On 1 November 2016 it lodged a development application with the City of Canada Bay Council seeking approval to demolish existing structures on the land and replace them with an eight-storey residential apartment building. The application was not determined within the time permitted under the Environmental Planning and Assessment Act 1979 (NSW) and was therefore deemed to have been refused. On 2 May 2017 Huajun lodged a class 1 appeal to the Land and Environment Court.

2. On 26 February 2018, following a conciliation conference, which resulted in agreement between Huajun and the Council, Commissioner Smithson granted consent to the development application. The applicant, Al Maha Pty Ltd (“Al Maha”), was the owner of an adjoining parcel of land at 36 Leicester Avenue, Strathfield. It was not a party to the development application, nor was it a party to the proceedings in the Land and Environment Court. However, it had lodged an objection to the development application on the basis that part of the development encroached on its land and it had not provided consent as the owner of land to which the development related.

3. On 25 May 2018 Al Maha commenced proceedings in the supervisory jurisdiction of this Court claiming that the development consent was invalid. The respondents to the proceedings were Huajun (first respondent), the Land and Environment Court (second respondent) and the City of Canada Bay Council (third respondent).

4. On 4 June 2018 Huajun filed a notice of motion in the Land and Environment Court seeking an order pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (“the slip rule”) amending the terms of the development consent; the motion was not opposed by the Council. On 7 June 2018 Commissioner Smithson purported to amend the conditions of the consent in accordance with the motion. The intended effect of the amendments was to remove from the description of the development any work which was required to be carried out on land owned by Al Maha.

5. I agree with Preston CJ of LEC that the development consent is invalid and should be set aside. Subject to what follows, I also agree with his reasons.

Grounds of challenge

6. Al Maha raised six grounds of challenge to the decision-making in the Land and Environment Court. Four of the grounds do not require further consideration. The first (ground 3A) alleged that the conciliation conference held on 15 February 2018 was invalidly constituted (i) because an earlier conference, held on 24 August 2017, had been terminated and the power to conciliate was exhausted, and (ii) because the conference held on 15 February 2018 was presided over by two Commissioners instead of one. For the reasons given by Preston CJ of LEC, there was no substance to these challenges. Further, had there been some irregularity in either of the ways alleged, it was not demonstrated that an agreement reached at or following the conference was therefore invalid.

7. The second and third grounds which may be put aside concern the purported amendment of the development consent on 7 June 2018. The challenge to the power of the Court to make such a variation of a development consent pursuant to the slip rule (ground 4) should be upheld for the reasons given by Preston CJ of LEC. A further ground alleging procedural unfairness in denying Al Maha an opportunity to be heard in opposition to the amendment (ground 5) need not be addressed.

8. Fourthly, ground 1 concerned the absence of consent of Al Maha to the development application. The requirements for a valid development application were prescribed by regulation. [1] Clause 49(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) reads as follows:

49   Persons who can make development applications

(1)   A development application may be made:

(a)   by the owner of the land to which the development application relates, or

(b)   by any other person, with the consent in writing of the owner of that land.

1. Environmental Planning and Assessment Act, s 78A(1), as then in force – now s 4.12(1).

9. A development application “relates” to any land on which development particularised in the application is to take place. For the reasons given by Preston CJ of LEC, the development application related to land owned by Al Maha and Al Maha had not given its consent in writing at any stage prior to the grant of development consent. Given that the proposed amendment failed, ground 1 must be upheld. The result is the invalidity of the development consent.

Incomplete application (ground 2)

10. There are two further grounds which should be addressed and which form independent grounds for setting aside the development consent. Ground 2 relied upon the terms of s 34(3) of the Land and Environment Court Act 1979 (NSW). In order to understand the basis of the arguments in relation to both this ground and ground 3 (addressed below) it is convenient to set out the relevant provisions in s 34.

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 ….

…

(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.

(5)   The Commissioner, when giving his or her decision under subsection (4) (b), is to give reasons for the decision:

(a)   in writing, or

(b)   orally and recorded by means that can be reproduced.

…

(8)   The decision of the Commissioner under subsection (3) or (4)(b) is taken to be the decision of the Court.

…

(10)   If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement.

…

(11)   Subject to subsections (10) and (12):

(a)   evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and

(b)   a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.

(12)   Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document.

11. The critical aspect of s 34(3) may be found in the words in parentheses providing that the Commissioner could only dispose of proceedings, following an agreement between the parties, if the proposed decision was “a decision that the Court could have made in the proper exercise of its functions”. That language might have been invoked with respect to the lack of owner’s consent. The Land and Environment Court could not have upheld an appeal seeking development consent for an application relating to land owned by Al Maha if Al Maha had not consented to the application.

12. Ground 2 raised a separate issue, namely that, although the development application provided for the construction of permanent access at the rear of the building, allowing egress and ingress to and from Hilts Road, the plans of the development did not show how access to the basement car park levels was to be achieved, with the result that the proposed development was incompletely identified and the terms of the consent were therefore uncertain. The grant of consent to a deficient application was described as irrational or legally unreasonable.

13. Al Maha was correct, as noted by Preston CJ of LEC at [211] below, to describe the plans as internally inconsistent and failing to delineate the changes which would be required by closing the temporary access to and from Leicester Avenue, and the construction of permanent access to and from Hilts Road. Whether the ground of challenge was made good is another question.

14. A court exercising limited jurisdiction will be subject to constraints which may derive from differing sources. In this case one source was the Environmental Planning and Assessment Act, setting out mandatory requirements for dealing with a development application. A second source was the Land and Environment Court Act, setting out constraints imposed on the Court hearing an appeal. A third source was the general law, requiring that the Court, in exercising its powers, accord procedural fairness to the parties. The obligation to act rationally and, within a margin for error, reasonably, also find their source in the general law. A requirement to consider all mandatory considerations and to disregard prohibited considerations may find its content by necessary implication from the applicable statutory power.

15. Some errors of fact or law may properly be described as “irregularities” as, for example, under s 31 of the Land and Environment Court Act, and do not necessarily lead to invalidity of any resulting orders. On the other hand, failure to comply with laws, whatever their source, which fix the boundaries of authority or jurisdiction will result in invalidity.

16. If a decision of the Land and Environment Court could be set aside or declared invalid by this Court, it is not “a decision that the Court could have made in the proper exercise of its functions”. Nor would it make sense to read s 34(3) as implicitly authorising such a decision. If the development application lacked essential elements, the deficiencies could render a consent one which could not have been granted in the proper exercise of the Court’s functions. However, Al Maha framed its ground as a challenge based on the legal unreasonableness of the consent. It is not necessary to determine whether this was an appropriate formulation of the ground, nor whether the deficiencies in the plans were such as to allow them to be characterised in this way. Al Maha succeeds on other grounds.

Functions of Commissioner (ground 3)

17. Ground 3 also relied upon the operation of s 34(3), but for a separate reason to those already considered. The Canada Bay Local Environmental Plan 2013 (“the LEP”) prescribed development standards, including height controls, which were exceeded by the proposed development. There was power in the consent authority, pursuant to cl 4.6 of the LEP, to grant consent despite non-conformity with a development standard.

18. In order to grant consent despite the non-conformity, the consent authority had to take certain steps and reach a certain degree of satisfaction. In the present case the consent authority was the Court; pursuant to s 34(8) the decision of the Commissioner was taken to be the decision of the Court. Accordingly, the Commissioner was required to reach a relevant state of satisfaction. If she did not, then the decision was one which the Court could not make and was therefore invalid as a result of the requirements of s 34(3) discussed above.

19. There were two issues in contention with respect to this ground. The first was a factual matter, namely whether the Commissioner had formed the relevant state of satisfaction. The second was the basis upon which this Court could be satisfied that error had been established. It was not in dispute that Al Maha bore the onus of proving that the Commissioner had not been satisfied in accordance with the requirements of the LEP. However, there was a further question as to the significance of the lack of reasons given by the Commissioner in respect of this issue.

20. The relevant provision of the LEP reads as follows:

4.6   Exceptions to development standards

…

(3)   Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)   that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)   that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)   Development consent must not be granted for development that contravenes a development standard unless:

(a)   the consent authority is satisfied that:

(i)   the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)   the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)   the concurrence of the Secretary has been obtained.

…

(7)   After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3).

(a)   construction of cl 4.6(4)(a)(i)

21. A consideration of legal error should start by identifying the criterion as to which the Commissioner was to be satisfied. On a literal reading, subcl (4)(a)(i) merely required that she be satisfied that the applicant had taken two steps, namely, that it had, first, made a written request to be excused compliance with the development standard and, secondly, “adequately addressed” the matters set out in subcl (3). On that (narrow) reading, the Commissioner did not need to form any view herself about the justification for failing to comply with the development standard.

21. The alternative reading is that the matters would not be “adequately” addressed unless they in fact justified the non-conformity. In other words, the Commissioner had to be satisfied that there were proper planning grounds to warrant the grant of consent, and that the contravention was justified.

22. The second reading is attractive for three reasons. First, in its terms, it gives work to the evaluative requirement implicit in the need to be satisfied that certain matters have been “adequately” addressed. Secondly, this is not a gateway provision prior to public consultation or further assessment; it is a criterion for the ultimate grant of consent. [2] Thirdly, the narrow approach fails to give separate work to subcll (3) and (4). Thus, subcl (3) requires the consent authority to have “considered” the written request and identifies the necessary evaluative elements to be satisfied. That is, to comply with subcl (3), the request must demonstrate that compliance with the development standard is “unreasonable or unnecessary” and that “there are sufficient environmental planning grounds to justify” the contravention. It would give no work to subcl (4) to simply require the Commissioner to be satisfied that the demonstration required under subcl (3) had occurred. The additional step is that the request satisfied the Commissioner that it should be granted.

    2. Compare s 75H(2) (repealed in 2011) using a similar criterion with respect to an environmental assessment prior to public release.

23. However, it is not necessary to resolve this issue in this case, because it should be accepted that the Commissioner did not form either state of satisfaction. Further, it is not appropriate to determine the issue in the absence of submissions as to the purpose and extent of the departures of the language of cl 4.6 from its predecessor, State Environmental Planning Policy No 1—Development Standards, cll 7 and 8.

(b)   obligation to give reasons

25. A failure to comply with an obligation to give reasons may itself constitute a basis for setting aside the decision, where it can be said that giving reasons was a condition of validity. (No such contention was put forward in the present case.) An alternative consequence is that the absence of reasons may more readily allow an inference that a particular matter was not determined (or not considered), because the Commissioner was required to indicate what she had decided (or considered). It was on this (evidential) approach that the applicant relied.

26. There is no doubt that a duty to give reasons is generally an inherent part of the judicial function. That is not to say that the duty is uniform, or universal; it is neither. The administration of justice would quickly grind to a halt if it were otherwise. Nevertheless, the duty is generally attracted to any final determination of a dispute before a court. Further, there may be other bodies which attract an implied obligation to give reasons if their functions are quasi-judicial. [3] The application of that reasoning favours the existence of an obligation to give reasons with respect to prerequisites to the exercise of a power. That conclusion is strengthened by the fact that an order made by a Commissioner is taken to be an order of the Court. [4]

    3. Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [26]-[28] (Handley JA); [33] (McColl JA); and [109] and [117]-[118] in my judgment.

    4. Land and Environment Court Act, s 34(8); see also s 36(3).

27. There are countervailing considerations. First, where proceedings are disposed of in accordance with an agreement reached at or after a conciliation conference, the Commissioner is required to “dispose of the proceedings in accordance with the [agreed] decision”. [5] The terms of the decision must be set out in writing (s 34(3)(b)), but there is no express requirement for reasons. Indeed, an inference that a decision giving effect to agreed terms following a conciliation conference would not require reasons might arise from the fact that a degree of confidentiality applies to things said and done in the course of a mediation.

    5. Land and Environment Court Act, s 34(3)(a).

28. Secondly, where no agreement is reached and the conference is terminated, the parties may consent to the Commissioner disposing of the proceedings following a hearing, or on the basis of what occurred at the conciliation conference, in which case the Commissioner is expressly required to give reasons for such a decision: s 34(5). The negative inference to be drawn from this provision is that reasons need not be given (and perhaps should not be given) where the determination merely gives effect to an agreed decision of the parties.

29. Accepting that, where agreement is reached, nothing is required of the Commissioner beyond giving effect to the decision of the parties set out in writing, there remains a question as to what should be done in circumstances where a precondition of the exercise of the Court’s powers described in s 34(3) is engaged, by which the Commissioner was required to satisfy herself as to a particular matter. In that circumstance, the Commissioner may be required to make findings of fact, law, or mixed fact and law. Because the final decision will be taken to be a decision of the Court, pursuant to s 34(8), the usual expectation would be that any necessary findings should be set out in written form and at least brief reasons given, consistent with the limitations on what should be disclosed following a conciliation conference, as to why the Commissioner was satisfied (if she were so satisfied) that the conditions were fulfilled.

30. There is nothing in the statute which contradicts the operation of a general law obligation to give reasons in that specific respect. In my view, the Commissioner was obliged to identify the criteria to be fulfilled for the proper exercise of the Court’s functions in approving the development application and was required to indicate, albeit briefly, how she had satisfied herself in those regards.

(c)   did the Commissioner comply with this requirement?

31. The Commissioner published a “judgment” in this matter. [6] The first paragraphs read:

“[1] … In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to ‘dispose of the proceedings in accordance with the decision’.

[2]   The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

[3]   In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.”

6. Huajun Investments Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1087.

32. I agree with Preston CJ of LEC that the statement in the second sentence as to satisfaction that the decision could have been made in the proper exercise of the Court’s functions was “formulaic” and inadequate to satisfy either an obligation to state findings of fact, or to give reasons therefor.

33. While it is true that the Commissioner was not required to make any “merit assessment of the issues … in dispute between the parties”, the statement to that effect, without reference to the matters as to which she was required to form a state of satisfaction, leads to an inference that she identified none. Conditions as to which she was required to form an opinion could not be satisfied by agreement between the parties; nor were they part of the agreed “decision”.

34. There was (at the very least) an issue as to whether owner’s consent had been obtained from a relevant landowner. In its notice of objectors, Al Maha had identified itself as “the owner of 36 Leicester Avenue”. The written objection did not refer to the lack of consent; whether the issue was raised at the on-site conference is not known. It may be inferred that the Commissioner probably knew that consent was required and could have known that consent had not been forthcoming. In any event, if she had formed a state of satisfaction with respect to the elements of cl 4.6 of the LEP, one would have expected her to note it, although one might not expect her to have noted the degree of ambiguity in its language.

35. Thus, although the Commissioner thought it appropriate to publish a judgment stating what she had decided, with the introduction set out above, the fact that in doing so she made no reference to the conditions precedent to the exercise of power demonstrates to my satisfaction that she did not identify or consider them. I would uphold ground 3.

Orders

36. The applicant sought four substantive orders, together with costs. Orders 1 and 2 sought, respectively, the quashing of the decision made on 26 February 2018 to grant development consent and a declaration that the development consent is void and of no effect. Properly the orders should be quashed; in strict terms a declaration adds nothing. However, it would not be inappropriate to make a declaration that the consent given to the development application was invalid.

37. The applicant also sought an order quashing the decision made on 7 June 2018 to amend the conditions of the development consent. If the order granting development consent is quashed, the amendment must fall with it, as it failed to cure the invalidity of the consent. No further order is required, but the quashing order and any declaration should refer to the consent granted on 26 February 2018, as amended on 7 June 2018.

38. Further, the applicant sought an order restraining Huajun from taking any steps in pursuance of, or in reliance on, the development consent. There are various enforcement proceedings which might be taken to prevent such activity. The evidence did not establish the need to add a further disincentive in the form of a potential liability for contempt of court.

39. The first respondent should be ordered to pay the applicant’s costs of the proceedings.

40. The Court should make the following orders:

1. Quash the decision made in the Land and Environment Court on 26 February 2018 granting consent to development application N0429/16 lodged on behalf of Huajun Investments Pty Ltd with the City of Canada Bay Council, as amended by the decision of the Court on 7 June 2018 (the development consent).

2. Declare that the development consent is invalid.

3. Order that the first respondent (Huajun Investments Pty Ltd) pay the costs of the applicant, Al Maha Pty Ltd, in this Court.

41. LEEMING JA: I agree with Basten JA and Preston CJ of LEC, and with the orders proposed by Basten JA.

42. PRESTON CJ OF LEC:

Nature of proceedings and outcome

Huajun Investments Pty Ltd (“Huajun”) proposes to develop its land at 38-42 Leicester Avenue, Strathfield (“Huajun’s land”) for a residential flat building. Huajun applied for development consent to the City of Canada Bay Council (“the Council”). The Council refused the development application. Huajun appealed to the Land and Environment Court (“the Court”).

43. The Court arranged a conciliation conference between the parties (Huajun and the Council) under s 34(1)(a) of the Land and Environment Court Act 1979 (“the Court Act”). The parties were unable to reach agreement at the conciliation conference. The Commissioner who presided at this conciliation conference terminated the conciliation conference under s 34(4) of the Court Act. The Court then fixed the proceedings for hearing.

44. The hearing of the proceedings commenced before two Commissioners of the Court. At the end of the first day of the hearing, at the request of the parties, the Court arranged a second conciliation conference under s 34(1)(a) of the Court Act and adjourned the further hearing of the proceedings until after that conciliation conference had been held. The second conciliation conference commenced as arranged and was adjourned a couple of times. The parties reached agreement as to the terms of the decision in the proceedings that would be acceptable to the parties. These terms included granting leave to further amend the development application and plans and granting development consent to the further amended development application subject to conditions agreed between the parties.

45. The parties requested the Commissioner presiding over the second conciliation conference to dispose of the proceedings in accordance with the decision of the parties, under s 34(3)(a) of the Court Act. The Commissioner decided to do so and made orders in terms of the parties’ agreement, including granting leave to Huajun to further amend its development application and plans, upholding the appeal and granting development consent to the further amended development application subject to the conditions agreed between the parties (“the development consent decision”). The development consent decision of the Commissioner is taken to be the decision of the Court (s 34(8) of the Court Act).

46. The owner of neighbouring land, Al Maha Pty Ltd (“Al Maha”), which owns 36 Leicester Avenue, Strathfield, had objected to Huajun’s development. Al Maha also objected to the development consent that was granted by the Commissioner. Al Maha considered that the development consent granted to the further amended development application approved the carrying out of development on Al Maha’s land. The approved development included the construction of a driveway to provide permanent access between the development and a public road at the rear, named Hilts Road. Al Maha had not given its consent as owner of the land to the further amendment of the development application to provide for the construction of the driveway connection to Hilts Road on Al Maha’s land.

47. As Al Maha was not a party to the proceedings before the Land and Environment Court, it did not have a right of appeal against the development consent decision of the Commissioner under s 56A of the Court Act. Al Maha could, however, seek to judicially review the Commissioner’s development consent decision.

48. Al Maha brought proceedings in the Supreme Court under s 69 of the Supreme Court Act 1970 to quash the Commissioner’s development consent decision. The grounds of challenge raise the Commissioner’s lack of jurisdiction to make the decision to grant development consent, including because jurisdictional preconditions to the exercise of the power to grant consent to the development application had not been satisfied. One of these jurisdictional preconditions was the absence of consent of Al Maha, as owner of the land on which the driveway connection to Hilts Road was to be constructed, to the further amended development application.

49. After some interlocutory applications in the Supreme Court, the proceedings were removed to the Court of Appeal for hearing and determination. Before the Court of Appeal heard the proceedings, the parties to the proceedings in the Land and Environment Court (Huajun and the Council) applied, by consent, to the Commissioner to amend the orders that the Commissioner had made, by exercising the power in the slip rule, r 36.17 of the Uniform Civil Procedure Rules 2005. The parties applied for the orders, the conditions of development consent, and the plans approved by the consent to be amended in various ways in order to limit the approved development and the land on which the approved development could be carried out to Huajun’s land and not Al Maha’s land. The Commissioner made the orders requested by the parties, purportedly exercising the power under the slip rule (“the slip rule decision”).

50. Al Maha amended its claim in the Supreme Court proceedings to challenge the Commissioner’s slip rule decision. One of the grounds of challenge was that the slip rule decision was not authorised by the slip rule.

51. I have determined that certain grounds of Al Maha’s challenge to the Commissioner’s development consent decision and slip rule decision have been established and that both decisions and the development consent should be set aside. Huajun should also be restrained from carrying out the development in accordance with the purported consent.

The challenge to the development consent decision

52. Al Maha challenged the development consent decision on four grounds:

1. the absence of consent of Al Maha to Huajun’s development application to carry out part of the development on Al Maha’s land (“the owner’s consent ground”);

2. the decision to grant consent to the development, as further amended, was legally unreasonable and so lacking in certainty and finality as to leave open the possibility of a significantly different development (“the irrationality ground”);

3. the failure of the Commissioner to form the requisite opinions of satisfaction under cl 4.6 of Canada Bay Local Environmental Plan 2013 (“the LEP”) justifying the contraventions of the development standards in the LEP (“the cl 4.6 ground”); and

4. the second conciliation conference was invalidly constituted and the development consent decision that resulted from that conciliation conference was invalid (“the conciliation conference ground”).

53. These grounds challenge the jurisdiction of the Commissioner under s 34 of the Court Act to have made the decision and order granting development consent. The first and third grounds concern the non-satisfaction of jurisdictional prerequisites to the exercise of the power to grant development consent to the development application, one being the absence of owner’s consent to the development application and the other being the failure to form the opinions of satisfaction required under cl 4.6 before granting development consent. The second ground concerns the mis-exercise of the power to grant development consent by making a legally unreasonable and uncertain decision. The fourth ground concerns the Commissioner lacking jurisdiction to make the decision because of the invalid constitution of the conciliation conference. To understand these grounds of jurisdictional error, it is instructive to explain the jurisdiction the Commissioner sought to exercise in the conciliation conference under s 34 of the Court Act.

Operation of s 34 of the Court Act

54. Section 34 of the Court Act provides for a combined or hybrid dispute resolution process involving, first, conciliation and, secondly, if the conciliation conference is unsuccessful and the parties agree, adjudication of the proceedings.

55. The conciliation involves a Commissioner of the Court acting as a conciliator in a conference between the parties to proceedings that are pending in Class 1, 2 or 3 of the Court’s jurisdiction. The conciliator facilitates the negotiation between the parties, or their representatives, with a view to the parties reaching agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

56. If the parties are able to reach agreement, the conciliator, being a Commissioner of the Court, has power to dispose of the proceedings in accordance with the decision in respect of which the parties have reached agreement, provided that the decision is one that the Court could have made in the proper exercise of its functions (s 34(3)(a) of the Court Act). If the parties are not able to reach agreement as to the terms of a decision that would be acceptable to the parties, the parties can nevertheless agree to the Commissioner disposing of the proceedings by adjudication, with or without a hearing (s 34(4)(b) of the Court Act).

57. This case focuses on the first process of conciliation and the powers of the Court to arrange more than one conciliation conference and of the Commissioner to dispose of the proceedings in accordance with the parties’ decision in respect of which the parties have reached agreement at the conciliation conference.

54. Section 34 gives the Court the power to arrange a conciliation conference and regulates how the combined conciliation – adjudication process is to be undertaken. Section 34 provides:

“(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.

(5)   The Commissioner, when giving his or her decision under subsection (4) (b), is to give reasons for the decision:

(a)   in writing, or

(b)   orally and recorded by means that can be reproduced.

(6)   If satisfied that there is a good reason to do so, the Commissioner may adjourn the conciliation conference to a time and place fixed in consultation with the Registrar.

(7)   Subject to this Act and the rules, the Commissioner disposing of, or hearing and disposing of, proceedings pursuant to subsection (3) or (4)(b) has and may exercise the functions of the Court.

(8)   The decision of the Commissioner under subsection (3) or (4) (b) is taken to be the decision of the Court.

(9)   If a report is made to the Court under subsection (4)(a), it must, as soon as practicable, furnish a copy of the report to each of the parties.

(10)   If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement.

(10A)   The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to:

(a)   a conciliation conference, and

(b)   a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged.

(10B)   The privilege conferred by subsection (10A) extends only to a publication made:

(a)   at a conciliation conference, or

(b)   in a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged.

(11)   Subject to subsections (10) and (12):

(a)   evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and

(b)   a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.

(12)   Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document.

(13)   The Commissioner presiding over a conference under this section in relation to any proceedings is disqualified from further participation in those proceedings, unless the parties otherwise agree.

(14)   Unless otherwise directed by the Chief Judge, the Registrar may preside over a conference under this section and, in that event, a reference in this section to a Commissioner includes a reference to the Registrar.”

59. This form of the section was introduced by the Courts Legislation Amendment Act 2007 (Schedule 6, item [15]). The new section introduced a number of changes to the earlier section. One of the changes of importance was the introduction of the word “may” in s 34(1) instead of the word “shall” that had previously been used. This change effected a change from a duty on the Court to a power of the Court to arrange a conference. Section 34(1) when first enacted in the Land and Environment Court Act 1979 provided:

“Where proceedings are pending in Class 1 or 2 of the Court’s jurisdiction, the registrar shall, unless otherwise directed by the Chief Judge, arrange a conference between the parties to the proceedings or their representatives, to be presided over by a single assessor.”

60. The original provision imposed a duty on the registrar of the Court to arrange a conference between the parties (then referred to as a preliminary conference rather than a conciliation conference, but the conference was for the same purpose). The Chief Judge could, however, direct the registrar not to arrange a conference in a particular proceeding or class of proceedings. The original provision only applied to proceedings pending in Class 1 or 2 of the Court’s jurisdiction and did not apply to proceedings in Class 3 of the Court’s jurisdiction.

61. The original s 34(1) was amended by the Land and Environment Court Amendment Act 2002 (Schedule 1, item [7]) by inserting “(other than proceedings in Class 1 that are brought under section 97 of the Environmental Planning and Assessment Act 1979)” after “jurisdiction” in s 34(1). This amendment was part of a package of legislative reform that introduced the new provisions of ss 34A to 34D of the Court Act. Section 34A required certain proceedings in Class 1 that are brought under s 97 of the EPA Act to be dealt with as on-site hearing matters. Section 34B(1) provided that on-site hearing matters are to be dealt with by means of a conference presided over by a single Commissioner. The evident intent of the amendment to s 34(1) was that there would be no utility in arranging a conference under s 34(1) for proceedings under s 97 of the EPA Act if these proceedings will be dealt with as an on-site hearing matter by means of a conference.

62. This amendment of s 34(1), which commenced in 2003, was reversed in 2006 by the Crimes and Courts Legislation Amendment Act 2006 (Schedule 1, item [1]), which omitted the same phrase “(other than Class 1 proceedings that are brought under s 97 of the Environmental Planning and Assessment Act 1979)” from s 34(1). Section 34(1) therefore reverted to the form it had been in on enactment. Of importance, the amended provision (by the use of the word “shall”) continued to impose a duty on the registrar to arrange a conference unless otherwise directed by the Chief Judge.

63. The Crimes and Courts Legislation Amendment Act 2006 also changed the duty to arrange a conciliation conference in proceedings pending in Class 3 of the Court’s jurisdiction to a power. The original s 34 had only applied to proceedings pending in Class 1 and 2 of the Court’s jurisdiction. In 1992, by the Land Acquisition (Just Terms Compensation) Act 1991 (Schedule 1, item (3)), s 34 was extended to proceedings in Class 3 of the Court’s jurisdiction in respect of a claim for compensation by reason of the compulsory acquisition of the land. The new s 34(1A) introduced in 1992 provided:

“Where proceedings are pending in Class 3 of the Court’s jurisdiction in respect of a claim for compensation by reason of the compulsory acquisition of land (referred to in Division 2 of Part 3), the registrar is required to arrange (at the request of all the parties to the proceedings) a conference between the parties to the proceedings or their representatives, to be provided over by a single assessor. The conference is to be arranged within 28 days after the proceedings are to commence or within such further time as the Chief Judge directs.”

64. Section 34(1A) was amended in 2006 to provide instead:

“If proceedings are pending in Class 3 of the Court’s jurisdiction, the registrar may, at any time on the application of the parties or on the registrar’s own motion, arrange a conference between the parties to the proceedings or their representatives, to be provided over by a single Commissioner.”

65. The amended provision gave the registrar the power to arrange a conference between the parties to proceedings pending in Class 3 of the Court’s jurisdiction (the registrar “may” at any time arrange a conference), rather than impose a duty to arrange a conference as the former subsection (1A) had done (the registrar is “required” to arrange a conference).

66. The current form of s 34 incorporates another change of importance from the original s 34, concerning the need to record in writing the decision that the Commissioner makes under the current s 34(3) or s 34(4)(b) of the Court Act. Under the original s 34, the Commissioner had the same power to dispose of the proceedings in accordance with the parties’ decision reached at or after the conciliation conference (under the then s 34(3)(a)) or after adjudication (under the then s 34(3)(b)(ii)). But there was no legislative requirement to record in writing the Commissioner’s decision to dispose of the proceedings by either means. The original s 34(3) provided:

“(3)   Where—

(a)   at or after a 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 assessor shall dispose of the proceedings in accordance with the decision; or

(b)   no such agreement is reached—

(i)   unless the parties consent under subparagraph (ii)—the assessor shall make a written report to the Court setting out that fact and also setting out his views as to the issues in dispute between the parties to the proceedings; or

(ii)   if the parties consent—the assessor may dispose of the proceedings, whether with or without further hearing.”

67. This provision was amended by the Crimes and Courts Legislation Amendment Act 2006 (Schedule 1, items [3] and [4]). Section 34(3)(a) was amended to insert “and is to set out in writing the terms of the decision” after “decision” where lastly occurring. A new subsection (3A) was inserted:

“(3A)   The Commissioner is to given written reasons for his or her decision under subsection (3)(b)(ii)”

68. These amendments introduced different requirements for recording in writing the decision, depending on how the decision was made. A less demanding requirement, of setting out in writing the terms of the decision, applied if the Commissioner disposed of the proceedings under s 34(3)(a) in accordance with the parties’ decision in respect of which the parties had reached agreement at or after the conciliation conference. A more demanding requirement, of giving written reasons for the decision, applied if the Commissioner disposed of the proceedings by adjudication under s 34(3)(b), whether with or without further hearing. This more demanding requirement for the Commissioner to give written reasons accorded with the similar requirement to given written reasons for a decision in on-site hearing matters (see s 34B(4)).

69. These different requirements for recording in writing the decision of the Commissioner were continued in the form of s 34 introduced in 2008, which is the current form of s 34. Under the current s 34(3)(b), the Commissioner need only “set out in writing the terms of the decision” in respect of which the parties have reached agreement and in accordance with which the Commissioner disposes of the proceedings. In contrast, under s 34(5), the Commissioner must give reasons for the Commissioner’s decision under s 34(4)(b) to dispose of the proceedings by adjudication, either in writing or orally and recorded by means that can be reproduced.

70. These different requirements for recording in writing the decision of the Commissioner reveal a legislative intention to restrict the application of the obligation to give reasons for the Commissioner’s decision to a decision under s 34(4) and not a decision under s 34(3) of the Court Act.

71. A jurisdictional requirement that has remained constant from the original enactment of s 34 to date is that the power of the Commissioner to dispose of the proceedings in accordance with the parties’ decision is made conditional on that decision “being a decision that the Court could have made in the proper exercise of its functions” (in s 34(3) of all versions of the section). If the parties’ decision does not answer that description, the Commissioner has no power to dispose of the proceedings in accordance with the parties’ decision.

72. The requirement that the decision be one that the Court could have made in the proper exercise of its functions demands that the Commissioner examine the functions that the Commissioner would be exercising in order to dispose of the proceedings in accordance with the parties’ decision. The functions will vary depending on the nature of the proceedings in Class 1, 2 or 3 of the Court’s jurisdiction.

73. The Commissioner would first need to check that the Court has jurisdiction to hear and dispose of the particular proceedings. The Court Act lists the proceedings in Class 1, 2 and 3 that the Court has jurisdiction to hear and dispose of in ss 17, 18 and 19 of the Court Act.

74. The Commissioner would next need to identify what functions would be exercised in disposing of the proceedings in accordance with the parties’ decision. In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court exercises the functions of the person or body whose decision is the subject of the appeal (see s 39(2) of the Court Act). Those functions will be stated in the statute under which the appeal is brought. The statute will specify the function, the conditions, including any preconditions, governing the exercise of the function, and the permitted outcomes of the exercise of the function.

75. In this case, for example, the proceeding was an appeal under s 97(1) now s 8.7(1) of the Environmental and Planning Assessment Act 1979 (“EPA Act”), in Class 1 of the Court’s jurisdiction, against the Council’s deemed refusal of Huajun’s development application. On appeal, the Court exercises the functions of the Council as the consent authority, under s 80(1) now s 4.16(1) of the EPA Act, to determine the development application (see s 8.14(2) of the EPA Act).

76. A “decision that the Court could have made in the proper exercise of its functions” under s 80(1) now s 4.16(1) of the EPA Act is one which the Court, exercising the functions of the consent authority, has jurisdiction to make. Under 80(1) now s 4.16(1) of the EPA Act, the consent authority can determine a development application by granting consent to the application, either unconditionally or subject to conditions, or refusing consent to the application. A development application can only be made for consent to carry out development that an environmental planning instrument provides may not be carried out except with development consent (s 77 now s 4.9 of the EPA Act). A development application cannot be made for consent to carry out development that does not need consent (s 76(1) now s 4.1(1) of the EPA Act) or that is prohibited (s 76B now s 4.3(1) of the EPA Act).

77. The EPA Act and the Environmental Planning and Assessment Regulation 2000 (“the Regulation”) regulate the procedures for making a development application, including prescribing the form and content of the development application. One of the content requirements is that the development application contain evidence that the owner of the land on which the development is to be carried out consents to the application. This requirement is discussed in the section on the owner’s consent ground below.

78. An environmental planning instrument, such as the LEP in this case, may provide that development consent is not to be granted except if some condition is satisfied. Clause 4.6 of the LEP in this case is an example. It provides that development consent must not be granted for development that contravenes a development standard unless the consent authority is satisfied about certain matters (see cl 4.6(4)(a) of the LEP). This requirement is discussed in the section on the cl 4.6 ground below.

79. The requirement in the EPA Act and the EPA Regulation that a development application contain evidence of the owner’s consent to the application and the requirement in the applicable environmental planning instrument that development consent not be granted except if some condition is satisfied, are jurisdictional prerequisites that need to be satisfied in order for the consent authority (and the Court on appeal exercising the functions of the consent authority) to be able to exercise the function of determining a development application by granting consent to the development application. Under s 34(3) of the Court Act, if the jurisdictional prerequisites to the exercise of the function of determining a development application by granting consent to the development application are not satisfied, a decision to grant consent to the development application will not be “a decision that the Court could have made in the proper exercise of its functions.” The Court could not make that decision.

80. With this explanation of the Court’s jurisdiction under s 34(3) of the Court Act to dispose of proceedings in accordance with the parties’ decision, I will address each of the grounds of challenge to the Commissioner’s development consent decision. I will deal with the grounds in the following order: the owner’s consent ground, the cl 4.6 ground, the irrationality ground and the conciliation conference ground.

The owner’s consent ground

81. Al Maha contended that Huajun sought leave to amend, and the Commissioner granted leave to amend, Huajun’s development application and plans to carry out part of the development on Al Maha’s land. This part of the development was the construction of the driveway from the basement of the residential flat building across Al Maha’s land to the extension of Hilts Road that the Council would construct. Al Maha contended that the Commissioner granted development consent to the further amended development application to construct this driveway connection to Hilts Road. Al Maha contended that the Commissioner lacked power to grant consent to this driveway connection to Hilts Road in the absence of the consent in writing of Al Maha as owner of the land over which the driveway connection to Hilts Road would be constructed. Al Maha submitted that the owner’s consent is a jurisdictional prerequisite to a valid determination to grant consent to a development application.

82. Huajun did not contest that obtaining owner’s consent to a development application to carry out development on the owner’s land is a jurisdictional prerequisite to a valid development consent. Huajun did, however, contest that either Huajun’s development application proposed to carry out any part of the development on Al Maha’s land or the development consent granted by the Commissioner approved the carrying out of any part of the development on Al Maha’s land.

81. Huajun also attempted to avoid this issue of the lack of owner’s consent by making an application to amend the Commissioner’s decision under the slip rule so that the consent did not approve the carrying out of the development on Al Maha’s land. I will address this attempt in the section on the challenge to the slip rule decision.

82. The contest between the parties turned, therefore, on a proper construction of the development application as amended and the development consent decision. Before addressing this contest it will assist to summarise the legal framework that imposes the requirement for owner’s consent to a development application. I will refer to the statutory provisions as they were at the time of Huajun making its development application and the Commissioner granting development consent, but will include reference to the new numbering of the provisions of the EPA Act to assist future understanding of the summary of the legal framework.

The legal framework for owner’s consent

85. An environmental planning instrument may provide that specified development may not be carried out on land except with development consent (s 76A(1) now s 4.2(1) of the EPA Act). A person may apply to a consent authority for consent to carry out development on the land. The development application is to be in accordance with the regulations (s 78A(1) now s 4.12(1) of the EPA Act). The regulations may specify “other things that are required to be submitted with a development application” (s 78A(9) now s 4.12(9) of the EPA Act).

86. The Regulation specifies that a development application must contain the information, and be accompanied by the documents, specified in Part 1 of Sch 1 of the Regulation (cl 50(1)(a) of the Regulation). Part 1 of Sch 1 of the Regulation specifies that a development application must contain, amongst other information:

“(i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner’s consent is required by this Regulation.”

87. An “owner” is defined as having the same meaning as in the Local Government Act 1993 (s 4(1) now s 1.4(1) of the EPA Act). The Local Government Act defines “owner” to include “every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession.”

88. The Regulation does require owner’s consent where the application is made by a person other than the owner. The Regulation provides that a development application may be made:

“(a)   by the owner of land to which the development application relates, or

(b) by any other person with the consent in writing of the owner of that land” (cl 49(1) of the Regulation).

89. The owner whose consent to the making of the development application is required is the owner of the land on which the development the subject of the development application is to be carried out: North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 476-477; [1996] HCA 20. This is “the land to which the development application relates” (cl 49(1) of the Regulation). The development application seeks consent to carry out particular development on particular land. The development application must contain “a description of the development to be carried out” and “the address, and formal particulars of title, of the land on which the development is to be carried out” (cl 1(1)(b) and (c) of Sch 1 of the Regulation). Having identified the development and the land on which the development is to be carried out, the development application must contain “evidence that the owner of the land on which the development is to be carried out consents to the application” (cl 1(1)(i) of Sch 1 of the Regulation).

90. The consent authority determines the development application that has been made (s 80(1) now s 4.16(1) of the EPA Act). In determining the development application, the consent authority takes into consideration such of the matters in s 79C(1) now s 4.15(1) of the EPA Act as are of relevance to “the development the subject of the development application.”

91. The land on which the development is to be carried out is to be determined not only from the address and formal particulars of title shown on the development application form but also from the documents that must accompany the development application. The Regulation requires the development application to be accompanied by specified documents, including “a site plan”, “a sketch of the development”, and “a statement of environmental effects” (in the case of development other than designated development or State significant development) or “an environmental impact statement” (in the case of designated development or State significant development) (cl 2(1)(a),(b),(c),(e) of Sch 1 of the Regulation). The site plan must indicate, amongst other matters, “the location, boundary dimensions, site area and north point of the land” (cl 2(2)(a) of Sch 1 of the Regulation). The sketch must indicate the following matters:

(3)   The sketch referred to in subclause (1) (b) must indicate the following matters:

(a)   the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land’s boundaries and adjoining development,

(b)   floor plans of any proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building,

(c)   elevations and sections showing proposed external finishes and heights of any proposed buildings (other than temporary structures),

(c1)   elevations and sections showing heights of any proposed temporary structures and the materials of which any such structures are proposed to be made (using the abbreviations set out in clause 7 of this Schedule),

(d)   proposed finished levels of the land in relation to existing and proposed buildings and roads,

(e)   proposed parking arrangements, entry and exit points for vehicles, and provision for movement of vehicles within the site (including dimensions where appropriate),

(f)   proposed landscaping and treatment of the land (indicating plant types and their height and maturity),

(g)   proposed methods of draining the land,

(h)   in the case of development to which clause 2A applies, such other matters as any BASIX certificate for the development requires to be included on the sketch,

(i) in the case of BASIX optional development—if the development application is accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A for it to be so accompanied), such other matters as any BASIX certificate for the development requires to be included on the sketch.” (Clause 2(3) of Sch 1 of the Regulation)

92. A statement of environmental effects must indicate, amongst other matters, “the environmental impacts of the development”, which necessarily involves a description of the development and the environment that the development will impact (cl 2(4) of Sch 1 of the Regulation). An environmental impact statement must be in the prescribed form, contain information including “the address of the land in respect of which the development application is to be made” and “a description of the development to which the statement relates” (cl 6(c) and (d) of Sch 2 of the Regulation), and contain the prescribed content, including “an analysis of the development”, which involves “a full description of the development” (cl 7(1)(d)(i) of Sch 2 of the Regulation).

93. These accompanying documents describe the development to be carried out and the land on which the development is to be carried out.

94. If the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application: see Owners – Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32]. Conversely, the description of the land on which the development is to be carried out in the accompanying documents (such as the statement of environmental effects) can also confine the land to which the development application relates to be a lesser parcel of land than is described in the development application form: see Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208 at [60]-[63].

95. The giving of owner’s consent to the making of a development application with respect to the owner’s land for the purpose of cl 49 of the Regulation is an essential prerequisite to, and part of the process of, a consent authority’s determination of the application. That is to say, the giving of owner’s consent is necessary to enable the consent authority to exercise its function to grant development consent to the application if it be minded to do so. On an appeal from a determination of the consent authority, the Land and Environment Court cannot uphold the appeal and grant development consent to the development application unless the owner’s consent to the making of the application has been given: Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34(c) and (e)].

96. Although the statutory prescriptions regulating owner’s consent require the development application to contain “evidence that the owner of the land on which the development application is to be carried out consents to the application” (see cl 1(1)(i) of Sch 1 of the Regulation), the failure of the development application to contain evidence of owner’s consent at the time it is made does not render the development application invalid or void. As Spigelman CJ held in Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300 at [35]:

“I see very little, if any, scope in this legislative scheme for the concept of a ‘valid’ application. Citizens are entitled to apply to authorities for whatever they like. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument provides that development may not be carried out except with consent. There is no relevant prohibition, express or implied, which impinges upon the application making process.” See also Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364 at [14], [18].

97. The development application will be “ineffective and incomplete” whilst so ever the development application does not contain the information and is not accompanied by the documents that the EPA Act and the Regulation require to be provided in order for the consent authority to validly exercise the power to determine the development application. There can be no valid determination of the development application until there is substantial compliance with such statutory prescriptions: McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [189].

98. Substantial compliance may be satisfied by the later provision of the required information or documents: Botany Bay City Council v Remath Investments No 6 Pty Ltd at [14], [18] and McGovern v Ku-ring-gai Council at [187]-[200]. In particular, the lack of owner’s consent to a development application can be cured at any time up until the determination of the application: see Botany Bay City Council v Remath Investments No 6 Pty Ltd at [5]-[7] and cases therein cited.

99. The recent decision of the High Court of Australia in Forrest and Forrest Pty Ltd v Wilson (2017) 91 ALJR 833; [2017] HCA 30 does not affect these conclusions that non-compliance with the statutory prescription that the development application contain evidence of owner’s consent does not cause the development application to be invalid and that the non-compliance can be cured by the later provision of owner’s consent at any time up until the determination of the development application. Forrest and Forrest Pty Ltd v Wilson concerned a different and very particular statutory requirement in the Mining Act 1978 (WA). The High Court held that “the clear meaning” of the statutory provision “was that the documentation relied upon must have been lodged at the same time as the application was lodged”; “the text” of the provision “did not admit of any ambiguity or doubt on this point”; “the tenor” of the provision “was both precise and prescriptive, conveying an intention not to countenance any degree of non-compliance with the requirement”: at [67].

100. The statutory provision in that case stands in contrast to the statutory prescriptions in the EPA Act and the Regulation for a development application to contain evidence that the owner of the land on which the development is to be carried out consents to the application. These statutory prescriptions do not convey an intention that the development application will be invalid if there is non-compliance with the requirement for owner’s consent or that any non-compliance is incapable of being cured up until the time of determination of the development application.

101. I note that this Court also recently distinguished Forrest and Forrest Pty Ltd v Wilson in finding that a failure of a proposed acquisition notice given under the Land Acquisition (Just Terms Compensation) Act 1991 to strictly comply with the legislative requirements does not necessarily result in the invalidity of the notice. The Court contrasted the legislative requirements governing applications for a mining lease under the WA Mining Act, considered by the High Court, with the legislative requirements for a proposed acquisition notice in order to begin the compulsory acquisition process under the Land Acquisition (Just Terms Compensation) Act: see Roads and Maritime Service v Desane Properties Pty Ltd [2018] NSWCA 196 at [203], [210], [211].

The development and land proposed in the development application

102. Huajun lodged its development application with the Council on 1 November 2016 seeking consent to carry out development described as “One residential flat building, 70 apartments with 2 level basement carpark, demolition of 3 x existing dwellings.” The development application specified the address of the land as “38-42 Leicester Avenue, Strathfield” and the title details as “Lot 8 DP 4072, Lot 1 DP 13637, Lot 1 DP 965698, Lot 5 DP 667462”.

103. The development application was accompanied by a Statement of Environmental Effects (“SEE”) by Elton Consulting dated 28 October 2016. The SEE similarly described the development and the land.

104. The SEE addressed access to the development. The development proposed access from Leicester Avenue, which is a busy, classified road. The SEE recorded that Canada Bay Local Environmental Plan 2013 (“LEP”) and Strathfield Triangle Development Control Plan (“DCP”) envisaged that the property to the south of the development site (Al Maha’s land) would be acquired by the Council to facilitate a pedestrian link and be converted to open space. The DCP envisaged that vehicular access to the development site would be provided from Hilts Road (which would be extended as part of the works to create the open space) rather than from Leicester Avenue. Delivery of the preferred outcomes would require the Council to acquire Al Maha’s land (p 20 of the SEE). The SEE noted that the Council had been unsuccessful in acquiring Al Maha’s land by negotiation and had commenced the process to compulsorily acquire the land (pp 13 and 20 of the SEE).

105. The SEE addressed cl 101(2) of State Environmental Planning Policy (Infrastructure) 2007 (“Infrastructure SEPP”), which provides that the consent authority must not grant consent to development on land that has a frontage to a classified road (Leicester Avenue is a classified road) unless it is satisfied that specified standards are satisfied. One of the specified standards is that “where practicable, vehicular access to the land is provided by a road other than the classified road” (cl 101(2)(a) of the Infrastructure SEPP).

106. The SEE stated:

“There is no alternative vehicle access available at the time of preparing this application due to the decision not to proceed with the acquisition of 36 Leicester Avenue. Refer to Section 3.3 of this report.

Access for residential vehicles only will be provided from Leicester Avenue with an alternative arrangement proposed for managing waste collection from the site from Hilts Road, reducing potential conflict between cars and service vehicles accessing the site.”

(p 29 of the SEE)

107. On 2 May 2017, Huajun lodged its appeal to the Land and Environment Court against the deemed refusal of the development application. On 24 May 2017, the Council filed its statement of facts and contentions, identifying the issues in dispute. Contention 1 was that:

“The proposed development does not satisfy the requirements of Clause 101 of State Environmental Planning Policy (Infrastructure) 2007 (which requires inter alia, vehicular access to the site to be provided by a road other than a classified road where practicable), the Canada Bay Local Environmental Plan 2013 (CBLEP) and the Strathfield Triangle Development Control Plan.”

108. Contention 6 concerned the public interest. The contention noted that one of the concerns raised in the public submissions objecting to the proposed development was that: “The proposal does not provide vehicular and pedestrian access from the rear off Hilts Road as required by the Strathfield Triangle Development Control Plan”.

109. On 30 May 2017, the Court arranged a conciliation conference under s 34 of the Court Act to be held on 24 August 2017. The conciliation conference took place on 24 August 2017. The parties were unable to reach agreement and the conciliation conference was terminated. On 7 September 2017, the Court fixed the proceedings for hearing on 13 to 15 February 2018.

110. On 6 November 2017, Huajun filed a Notice of Motion and supporting affidavit seeking the Court’s leave to amend its application and rely on amended plans and reports. Amongst the amended plans on which Huajun sought leave to rely was the Traffic Access Plan (DA2 Plan-Traffic Access Plan, DA2.11D-Rev 3, 15 September 2017) and section DD (DA3 Section-Section DD, DA3.04-Rev 9, 15 September 2017). The amended Traffic Access Plan showed entry to the basement of the proposed residential flat building off a driveway from an extension of Hilts Road. The Traffic Access Plan bore a description “Plan – Potential Future Access” and the extension of Hilts Road where it turns south away from Huajun’s development site had a description “Future Road”. The plan of Section DD was a section near the southern boundary that effectively presented the southern elevation of the building. It showed “Future Basement Entry” at the location where the driveway from Hilts Road would enter the basement of the building.

111. The application for leave to rely on amended plans was accompanied by a letter dated 15 September 2017 from Huajun’s architects explaining the design changes. The letter explained that “the main amendments to the development proposal design” include “Future Potential Vehicular Access off Hilts Road has been demonstrated”.

112. One of the reports on which Huajun sought leave to rely was a report by its traffic consultant, Transport and Traffic Planning Associates, entitled “Assessment of Traffic and Parking Implications”, dated “October 2017 (Rev C)”. The report stated in the section on the revised development scheme (p 3):

“A total of 74 parking spaces are to be provided in the basement with initial temporary vehicle access on Leicester Avenue at the southern side boundary with a central median island to restrict access movements to left turn IN/OUT. Provision is also made for the temporary access to be replaced in the future with permanent access connecting to the basement level on the proposed extension of Hilts Road.”

113. The report stated in the section on access (p 8):

“Temporary vehicle access for the basement carpark is proposed to be provided by a 7.0 metre ingress/egress driveway located on the Leicester Avenue frontage at the southern boundary. This temporary access would be replaced in the future with a permanent access connection to the proposed extension of Hilts Road (see details overleaf).”

4. In condition 115, which required the construction of the permanent access to Hilts Road and the decommissioning of the temporary access to Leicester Avenue, two new paragraphs were added at the beginning of the condition saying:

“For the avoidance of doubt this condition does not authorise the carrying out of any development on 36 Leicester Avenue, Strathfield.

This condition prevails over any other plan or condition referred to in this consent.”

The originally approved first paragraph of the condition was amended to change the address of the proposed rear lane to be opened and constructed by the Council from being “adjacent to and part of No 36 Leicester Avenue” (which is Al Maha’s land) to be instead “adjacent to No 38 Leicester Avenue” (which is Huajun’s land). Additional words were added at the end of the paragraph saying “and now facilitates access to the subject development from Hilts Lane.”

In the originally approved second paragraph of the condition the words “a development application” were inserted, so as to require the proponent, within three months of receiving written notification from the Council that Hilts Lane has been opened and constructed, to lodge a development application, construction certificate application and s 138 Roads Act application for the works to construct the driveway crossing to Hilts Road and to decommission the Leicester Avenue temporary access.

247. Commissioner Smithson heard the notice of motion to amend the orders on 5 June 2018. The Commissioner recorded on the Court filed: “NOM (04/06) and orders made with consent of parties to amend agreement conditions and approved plans – final amendments to be filed (Slip Rule).”

248. On 6 June 2018, the solicitor for Huajun, with the consent of the solicitor for the Council, wrote to Commissioner Smithson saying:

“We refer to your directions on the Notice of Motion heard yesterday morning and attach amended Plan DA 2.11D and amended marked up conditions as agreed.

We refer to our submissions this morning that the conditions attached to the motion contained an error at condition 2 which we did not seek to have amended – we have reinstated the original condition in the attached conditions. Since court we have identified a further error in condition 115 and have deleted the “s” from “Road” in the third paragraph. You will note that the document is now 51 pages, but this is as a result of formatting in the tracked document – it should reduce down to 49 pages once changes are accepted.”

249. The plan that was annexed was the Traffic Access Plan dated 14 February 2018 but amended in handwriting by changing the title from “Traffic Access Plan” to “Indicative Future Access Changes”, the revision of the plan from 12 to 13, and the date of the plan from 14 February 2018 to 5 June 2018, and by drawing a cloud around the driveway and Hilts Road on the plan to indicate amendment.

250. On 7 June 2018, Commissioner Smithson made orders in chambers amending the orders of 26 February 2018 as sought by the parties. The Commissioner stated:

“Pursuant to rule 36.17 of the UCPR, the slip rule, by consent of the Parties, I amend Annexure A, being the Conditions of Consent of to [sic] the orders of 26 February 2018, at the introduction, Condition 1 and Condition 115, and revise the title of approved plan DA2.11D as revision 13, shown at a new Annexure B. These amendments confirm that the consent and approved plans do not authorise the carrying out of any development on 36 Leicester Avenue Strathfield.

As a consequence, the final orders made on 26 February 2018 to give effect to the parties’ agreement, as amended on 7 June 2018, are:

(1)   The Applicant is granted leave to further amend its application, and the plans filed with the Court on 6 November 2017, in accordance with the schedule of plans included in the attached conditions at Condition 1.

(2)   The appeal is upheld.

(3)   Development Application No. N0429/16 for the demolition of existing dwellings and structures and construction of an eight (8) storey residential flat building comprising three (3) basement parking levels, and sixty-two (62) residential apartments with temporary access to Leicester Avenue, and sixty-three (63) residential apartments with permanent access to Hilts Road, over Lot 8 in the DP 4072 and Lot 1 in DP 136337, No. 38 Leicester Avenue, Lot 1 in DP 965698, No. 40 Leicester Avenue, and Lot 5 in DP 667462, No. 42 Leicester Avenue, Strathfield is approved subject to the conditions set out in Annexure ‘A’ to this agreement.

(4) In relation to the amendment for which leave is granted by order 2(a) above, the Applicant shall pay the Respondent’s costs in the sum of $5,000 (plus GST) pursuant to s 97B of the Environmental Planning and Assessment Act 1979 (NSW).”

251. On 7 June 2018, the Court gave written notice of the orders made by the Commissioner. The conditions of consent that were annexed to the orders had been amended as requested by the insertion of the additional paragraph in the preamble to the consent; the substitution of the plan entitled “Indicative Future Access Changes” dated 5 June 2018 for the Traffic Access Plan dated 14 February 2018 in the table in condition 1; making no change to condition 2; and changing condition 115 by inserting two new paragraphs at the start of the condition, changing the address of the land on which the Council would construct the rear lane from No 36 to No 38 Leicester Avenue and inserting the requirement to obtain development consent for construction of the driveway connection to Hilts Road.

The parties’ competing contentions on the slip rule decision

252. Al Maha challenged the slip rule decision on two grounds:

1. the amendments made by the Commissioner were outside the power to amend a judgment or order under rule 36.17 of the UCPR (“the slip rule ground”); and

2. Al Maha was denied procedural fairness by not being notified and given an opportunity to be heard before the Commissioner amended the orders under the slip rule.

253. Huajun contested that the slip rule did not allow the amendments to the orders made by the Commissioner. Huajun also disputed that Al Maha had any entitlement to be notified of or heard on the application for amendment of the orders of the Court under the slip rule.

254. For the reasons I will give shortly, Al Maha’s challenge to the slip rule decision on the slip rule ground is sufficient to warrant setting aside the Commissioner’s slip rule decision. For that reason and in light of what is said below as to discretion to grant relied, it is unnecessary to deal with Al Maha’s second ground of denial of procedural fairness.

255. On the slip rule ground, Al Maha submitted that the power under the slip rule is contingent on there being “a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order” and the exercise of the power under the slip rule is to “correct the mistake or error”. Al Maha contended that the amendments made by the Commissioner to the conditions of consent and to approve an amended plan did not correct a “clerical mistake” or “an error arising from an accidental slip or omission”, but rather were substantive amendments to the conditions of consent and the approved plans.

256. Al Maha submitted that the power to correct an error arising from accidental slip or omission directs attention to what the Court whose record is to be corrected did or intended to do, however “[i]t does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded” (Burrell v The Queen (2008) 238 CLR 218 at [21]; Achurch v The Queen (2014) 253 CLR 141 at [18]). Al Maha submitted that the application of the slip rule to correct an error would only be appropriate if the solution to the error does not involve controversy or depend on evaluative or discretionary judgment (Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc at [129], citing Storey & Keers Pty Ltd v Johnstone at 453). The slip rule cannot be used to “cloak the court with jurisdiction” which it otherwise would not have, or for the purpose of expanding the court’s jurisdiction (Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268 at [61], [67] and [113]).

257. Al Maha submitted that the development consent granted by the Commissioner authorised the carrying out of development on Al Maha’s land, being the driveway connection to Hilts Road. The amendments purportedly made by the Commissioner under the slip rule were substantive amendments of the development consent so that the consent no longer authorised the carrying out of that development on Al Maha’s land. This effected a substantive amendment of the development to which consent was granted.

258. Not only did this amendment change the actual development to be carried out, it changed how that development needed to be assessed and approved. Al Maha submitted that one of the relevant matters that the Commissioner, exercising the functions of the consent authority, was required to consider and to form the necessary opinion of satisfaction about concerned providing access to the development by a road other than a classified road (cl 101(2)(a) of the Infrastructure SEPP). Under cl 101(2)(a) of the Infrastructure SEPP, the consent authority, and the Commissioner exercising the functions of the consent authority, “is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome [‘vehicular access to the land is provided by a road other than the classified road’] will be achieved, where that desired outcome is practicable”: Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138 at [42]. This requirement is jurisdictional in the sense that the Commissioner had no power to grant consent to the development unless the Commissioner was satisfied that vehicular access to the land by a road other than the classified road of Leicester Avenue was not practicable.

259. The development, as further amended, provided for permanent vehicular access to be from Hilts Road, which is a road other than the classified road of Leicester Avenue. The purported slip rule amendment, however, removed this provision of vehicular access from a road other than a classified road, and instead provided that permanent access be from the classified road of Leicester Avenue. This amendment necessitated a reconsideration of the development application and the precondition in cl 101(2)(a) of whether consent could be granted to the development with vehicular access from the classified road of Leicester Avenue and not from a road other than a classified road.

260. Al Maha submitted that the amendment to condition 115 imposed a new requirement for development consent to be obtained for the construction of the driveway connection to Hilts Road. The consent granted by the Commissioner authorised the construction of the driveway connection to Hilts Road; no further development consent was required, but rather only a construction certificate and approval under s 138 of the Road Act were required. Condition 115 as amended by the slip rule decision imposed a new requirement to obtain development consent for the driveway connection to Hilts Road. This was a substantive change.

261. Al Maha submitted that the purported slip rule amendment was substantive in another way in that it “cloaked the Court with jurisdiction”. As Al Maha had contended in the owner’s consent ground, the Court did not have jurisdiction to grant consent to the further amended development application to carry out development on Al Maha’s land in the absence of Al Maha’s consent as owner to that application. The proposed amendment under the slip rule was to modify the consent such that development on Al Maha’s land was no longer authorised by the consent, thereby removing the jurisdictional bar on granting consent in the absence of owner’s consent. This amendment was to give the Court jurisdiction it otherwise did not have.

262. Al Maha submitted that the amendment to condition 1 and the approval of an amended plan was also outside the power of the slip rule. The amended plan did not exist at the time the Commissioner made her order to grant consent on 26 February 2018. The plan was only brought into existence on 5 June 2018, as the revision number and date on the plan show. The plan is changed from being a traffic access plan showing the approved access to being a plan showing indicative future access changes. Al Maha submitted that the power of the slip rule to correct a mistake or error in an order does not extend to approving a plan of development that did not exist at the time the order was made.

263. Huajun submitted that none of the amendments made by the Commissioner to the conditions of consent or the approved plans by the slip rule decision was substantive because the amendments did not alter the substance of the orders made by the Court on 26 February 2018. This submission was founded on Huajun’s argument that the original orders of the Commissioner did not grant consent to the construction of the driveway connection to Hilts Road. Huajun submitted that the slip rule amendment to the introduction of the conditions of consent had no substantive effect but was merely to avoid doubt in the construction of the development consent. The amendment to condition 1 changed the title to the plan, its revision number and date, but there were no substantial amendments to what the plans showed. None of the amendments to condition 115 were substantive. The two new paragraphs were to avoid doubt in the construction of the development consent. The amendments to the original first paragraph merely corrected the address and indicated the future access changes. The amendments to the original second paragraph to require development consent to be obtained for construction of the permanent access to Hilts Road had no substantive effect but merely recorded that a development application may be required.

264. Huajun submitted that the slip rule could be used to carry into effect the actual intention of the Commissioner making the decision and orders (Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 at [116]). Huajun submitted that the Commissioner did not intend to grant consent to development on Al Maha’s land. The slip rule amendments carried that intention into effect and avoided doubt that the consent could be construed as authorising development on Al Maha’s land.

265. At the hearing in this Court, Huajun made an alternative submission if the Court were to find, contrary to Huajun’s primary submission, that the development application and the consent granted by the Commissioner did in fact authorise the construction of the driveway connection to Hilts Road across Al Maha’s land. Huajun submitted that the parties’ intention in agreeing the terms of a decision that was acceptable to the parties was that the consent should not be granted to that development on Al Maha’s land. The Commissioner simply disposed of the proceeding in accordance with the parties’ decision. The parties’ intention thereby became the Commissioner’s intention. The slip rule amendments carried into effect the parties’ intention (and hence the Commissioner’s intention), making sure that the orders made and development consent granted did not have the consequence of approving development on Al Maha’s land, which the parties and Commissioner had intended to avoid.

The slip rule decision was outside power

266. The slip rule decision was outside the power of the slip rule. The slip rule decision purported to amend order 3 made on 26 February 2018 to grant development consent to the development application on the conditions in Annexure A to the orders. As I have found earlier, the development for which consent was sought in the further amended development application and to which consent was granted included construction of the driveway connection to Hilts Road on Al Maha’s land. The slip rule decision purported to modify the development consent so as to no longer authorise the carrying out of this development on Al Maha’s land. It sought to achieve this modification of the consent by amending certain conditions of consent and substituting an amended plan. None of these modifications, however, could be described as corrections of “a clerical mistake” or “an error arising from an accidental slip or omission” in order 3 of the Commissioner’s orders or in the annexed conditions of consent. The order and the annexed conditions of consent did not contain any mistake or error in granting consent to the construction of the driveway connection to Hilts Road.

267. The power under the slip rule could be exercised to correct mistakes or errors in the decision or orders of the Commissioner in order to carry into effect the intention of the Commissioner making the order: Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc at [116]. The relevant intention of the Commissioner is the objective intention, not the subjective intention, of the Commissioner at the time the decision and orders were made: Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc at [91], [102] and see Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 at [65]. The Commissioner’s ex post facto observation in making the slip rule amendments, that “these amendments confirm that the consent and approved plans do not authorise the carrying out of any development on 36 Leicester Avenue, Strathfield”, is at best “no more than evidentiary and may not even be admissible over objection”: Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc at [95].

268. Where the order sought to be amended under the slip rule is an order of the Court granting development consent, the intention of the Commissioner (or Judge) who made the order is to be discerned from the reasons for judgment (if there are reasons) and a construction of the development consent granted by the Commissioner (or Judge). The approach to construction of the consent granted by the Court should be in accordance with the principles for construction of a development consent generally: see Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [24], [25], [42]-[48], and [154]-[163]; Cheetham v Goulburn Motorcycle Club Inc (2017) 223 LGERA 43; [2017] NSWCA 83 at [18]-[21], [61]; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 226 LGERA 54; [2017] NSWCA 263 at [16]-[24], [56], [63]-[65] and [158]; Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 at [34]-[35] and cases therein cited.

269. In this case, the objective intention of the Commissioner is to be discerned from a proper construction of the order of the Commissioner granting development consent to the further amended development application and the consent granted by the Commissioner. The Commissioner provided no reasons for making the order to grant consent. The Commissioner’s intention is therefore to be discerned from a construction of the development consent granted by the Commissioner. On a proper construction of the development consent, the intention of the Commissioner was to grant consent to the driveway connection to Hilts Road across Al Maha’s land. The slip rule amendments sought not to give effect to this objective intention of the Commissioner, but instead to give effect to the different intention of not granting consent to the driveway connection to Hilts Road across Al Maha’s land.

270. An application of the principles for construction of the development consent granted by the Commissioner would not permit reference to be made to the parties’ intention in reaching agreement under s 34(3) of the Court Act as to the terms of the decision that was acceptable to them. The parties’ intention cannot determine the Commissioner’s intention in granting the development consent.

266. The amendments to the order and conditions of consent by the slip rule decision were substantive, for the reasons submitted by Al Maha and summarised above. The amendments changed substantively the development to which consent was granted, by removing the construction of the driveway connection to provide permanent access to Hilts Road. The amendment of condition 1 sought to approve a plan of the development that did not exist at the time the Commissioner granted consent. The amended plan sought to describe different vehicular access arrangements for the development. The amendments changed the assessment and approval of the development. The assessment of vehicular access under cl 101(2) of the Infrastructure SEPP was affected by the amendments. One amendment of condition 115 imposed a requirement to obtain development consent for the construction of the driveway connection to Hilts Road, where as the consent granted by the Commissioner had authorised the construction of the driveway connection to Hilts Road.

267. The amendments sought to overcome the need to obtain the consent of Al Maha, as owner of land on which development is to be carried out, to the development application and thereby to give jurisdiction to the Court to grant consent to the development application. This attempt to cloak the Court with jurisdiction was beyond the power of the slip rule.

268. The slip rule decision was, therefore, not authorised by the slip rule and should be set aside.

269. I should also note that the slip rule decision did not cure the lack of jurisdiction caused by the Commissioner’s failure to form the opinions of satisfaction under cl 4.6(4) of the LEP necessary in order for the Commissioner to have power to grant consent to the development application. The slip rule decision was only intended to overcome the lack of jurisdiction to grant consent to development on Al Maha’s land in the absence of Al Maha’s consent as owner to the application. None of the slip rule amendments sought to, or could, overcome the jurisdictional error of the Commissioner in granting consent to the development application without first forming the necessary opinions of satisfaction under cl 4.6(4) of the LEP.

270. Ground 4, the slip rule ground, is established.

The relief to be granted

276. Al Maha seeks orders quashing the development consent decision and the slip rule decision, declaring the development consent to be void and of no effect, and restraining Huajun from taking any steps or any further steps in pursuance of or in reliance on the development consent, as well as an order for costs.

277. Huajun contended that the Court, in the exercise of its discretion, would not grant the relief sought by Al Maha. In its response to the further amended summons and its written submissions, Huajun advanced numerous reasons why it said the Court should not set aside the Commissioner’s decisions or the development consent or restrain Huajun from carrying out development in accordance with the consent. These reasons included:

1. Al Maha has not been shown to have been prejudiced by the decisions made, as the development consent did not authorise the carrying out of development on Al Maha’s land.

2. Insofar as the development consent did authorise development on Al Maha’s land, that development could only be carried out after the Council has compulsorily acquired Al Maha’s land and Al Maha would be paid an amount that would justly compensate it for the land acquired.

3. Al Maha’s arguments (as to the errors the Commissioner made in making the development consent decision and the slip rule decision) are technical.

4. There is no utility in setting aside the Commissioner’s decisions and the development consent. Huajun and the Council would return to the Commissioner to seek fresh orders (substantially the same) that the Commissioner dispose of the proceedings in accordance with the parties’ agreement and the Commissioner would be bound to do so under s 34(3) of the Court Act.

5. The development consent approved a substantial development with an estimated cost in excess of $20,000,000. Huajun has undertaken work in accordance with the consent granted by the Commissioner.

278. At the hearing, however, Huajun conceded that these arguments as to why the Court should, in the exercise of its discretion, refuse to grant relief setting aside the Commissioner’s decisions and the development consent were only relevant to errors other than the error involved in granting development consent in the absence of owner’s consent. Huajun accepted that if the Court were to find that the consent of Al Maha as owner was required to the development application, but was not given, the development consent is not valid and should be set aside.

279. I find that it is appropriate to set aside the Commissioner’s development consent decision and the slip rule decision and the development consent. The Commissioner’s decisions involved jurisdictional error. The Commissioner had no power to grant the development consent in the absence of Al Maha’s consent to the application as the owner of land on which the development is to be carried out and without forming the necessary opinions of satisfaction under cl 4.6(4) of the LEP. These jurisdictional errors were not “technical”, but were fundamental to the proper exercise of the Commissioner’s functions. The Commissioner had no power under the slip rule to amend the development consent decision and orders in the ways that she purported to do. The slip rule decision did not correct any mistake or error in the decision or orders made by the Commissioner, but rather sought to modify the development consent by changing the development to be carried out, the conditions of consent and the plans approved by the consent. Again, this error is not technical, but rather fundamental.

280. As Huajun properly conceded, a consent granted to a development application in the absence of owner’s consent to the application is invalid and should be set aside. The same applies for the grant of consent involving other jurisdictional errors: the consent is invalid and should be set aside. So too the amendment of a decision or order of the Court outside the power of the slip rule: the amendment is invalid and should be set aside.

281. Huajun’s argument that Al Maha is not prejudiced fails once it is accepted that the development consent authorised the carrying out of development on Al Maha’s land without Al Maha’s consent. Huajun’s argument that it is prejudiced because it has carried out work in reliance on the consent is insufficient to justify withholding granting the relief sought by Al Maha. The work that Huajun has done in reliance on the consent can only be to satisfy the deferred commencement conditions of the consent. Until those deferred commencement conditions are satisfied, the consent does not become operative and Huajun cannot lawfully carry out the development in accordance with the consent. Huajun has also been on notice since before Al Maha commenced these proceedings of the risk that the development consent is invalid. Huajun has elected to carry out work notwithstanding this risk.

282. The effect of the Court setting aside the Commissioner’s development consent decision and the slip rule decision and the development consent would be that the Commissioner would need to re-exercise the function under s 34(3) of the Court Act to decide whether or not to dispose of the proceedings in accordance with the parties’ decision that had been reached in the s 34 agreement. If evidence of Al Maha’s consent as owner to the application is not forthcoming, the Commissioner will be precluded from disposing of the proceedings in accordance with the parties’ decision, as it is not a decision that the Commissioner can make in the proper exercise of the Court’s function. If the circumstances do not otherwise change, such as Huajun seeking leave to amend its application for development consent to no longer carry out development on Al Maha’s land or the parties’ reaching agreement as to the terms of a different decision, the Commissioner would need to terminate the conciliation conference under s 34(4) of the Court Act. The hearing of the proceedings, which has been adjourned, could then continue. Accordingly, there is utility in this Court setting aside the Commissioner’s decisions and the development consent. The Commissioner will not make the same decision or orders that the Commissioner made on 26 February 2018.

283. The appropriate orders to set aside the Commissioner’s decisions, both the development consent decision and the slip rule decision, and to declare invalid the development consent are those proposed by Basten JA at [40]. There is utility in declaring the development consent invalid in addition to quashing the Commissioner’s decision to grant consent because of the new regime under the EPA Act for registration of consents on the NSW planning portal (see ss 4.20, 4.58 and 8.13 of the EPA Act and cl 264 of the EPA Regulation).

284. Al Maha also sought an order restraining Huajun from taking any steps in pursuance of, or in reliance on, the development consent. The evidence does not establish that Huajun would or is likely to take any steps to carry out the development after the development consent is declared invalid. In these circumstances, there is not a threatened or apprehended breach of the EPA Act to restrain.

285. As Al Maha has been successful, Huajun should pay Al Maha’s costs of the proceedings.

286. I agree the Court should make the orders proposed by Basten JA in [40].

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Endnotes

Amendments

30 October 2018 - Turning last sentence of [150] into heading above [151]

08 November 2018 - [102] Amending "1 November 2018" to "1 November 2016".

Decision last updated: 08 November 2018