Anambah Homes Pty Limited v Maitland City Council

[2004] NSWLEC 615

Reported Decision: (2004) 135 LGERA 421

Land and Environment Court

of New South Wales

CITATION:	Anambah Homes Pty Limited v Maitland City Council [2004] NSWLEC 615
PARTIES:	APPLICANT: Anambah Homes Pty Limited RESPONDENT: Maitland City Council
FILE NUMBER(S):	41296 of 2004
CORAM:	Pain J
KEY ISSUES:	Judicial Review :- validity of consent conditions - application of s 101 of the Environmental Planning and Assessment Act 1979 - Hickman principles
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 94, s 94B, s 96, s 101 Migration Act 1958 (Cth)
CASES CITED:	Kingsway Investments (Kent) Ltd v Kent County Council [1969] 2 QB 332; Londish v Knox Grammar School (1997) 97 LGERA 1; Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; Sericott v Snowy River Council (1999) 108 LGERA 66; Woolworths Limited and Kenlida Pty Limited v Bathurst City Council and Austcorp No 71 Pty Limited (1987) 63 LGRA 55; Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422
DATES OF HEARING:	27/10/2004 28/10/2004
DATE OF JUDGMENT:	12/13/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr A. Galasso instructed by Carroll and O'Dea RESPONDENT: Mr T. S. Hale SC with Mr J. Kildea instructed by Thompson Norrie Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

13 December 2004

10300 of 2004 Anambah Homes Pty Limited v Maitland City Council

JUDGMENT

1 Her Honour: The Applicant, Anambah Homes Pty Limited, commenced Class 1 proceedings appealing against the deemed refusal by the Council of its application for the modification of a development consent pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The Applicant is currently carrying out a large residential subdivision on land formerly described as Lot 606 in DP 874388 at Denton Park Road, Rutherford. Some twelve development consents have been granted by the Council in relation to this residential subdivision, including the consent granted by the Council on 27 June 2000 to stage 18 of the subdivision (“the Stage 18 Consent”). It is the Stage 18 Consent with which these proceedings are concerned. The Stage 18 Consent authorised the subdivision of an area of land, known as Precinct 18, into 24 lots. One of these lots, Lot 1825, is 5.1 hectares in size while the remaining lots are approximately 750m2 each.

2 The s 96 application made by the Applicant sought the Council’s consent to the deletion of conditions 34, 35 and 36 of the Stage 18 Consent. Conditions 34, 35 and 36 of the Stage 18 Consent provide as follows:

34. 2m wide shared pedestrian/cycleways are to be constructed in accordance with Austroads “Guide to traffic engineering practice, part 14 (Bicycles), 1999” along the proposed pathways between lots 1816 and 1815, 1802 and 1803. From there to Denton Park Drive at the eastern side of lot 1825, across Denton Park Drive, including a cycle refuge to clause 6.7.2.3(b) and fig 6.34. Then along the eastern alignment of the length of lot 1825 in a southerly direction to abut lot 1490 on DP1005639 at the South eastern corner of lot 1825. A second similarly constructed cycleway shall be constructed to intersect with Adam Avenue at the location of the frontage of lot 1825 and to intersect with the first cycleway and then to continue and abut to the boundary of lot 1490 on DP1005639.

35. Where cycleways intersect with public roads, the cycleway shall be detailed in accordance with Council’s standard drawing SD73.

36. Lot 1825 shall be dedicated to the public as a reserve with the endorsement of the linen plan for precinct 18.

3 This hearing concerns four preliminary questions of law raised in the Amended Statement of Issues filed by the Council as follows:

1. Whether, in proceedings in Class 1 of the Court’s jurisdiction and in the absence of the consent of both parties, it is appropriate for the Court to make declarations and/or findings as to:
(i) the validity of conditions 34 and 35 of the Respondent’s Development Consent LD 00623 (“the Development consent”); and/or
(ii) the validity of condition 36 of the Development Consent;
or to make
(iii) orders severing one or more of those conditions from the Development Consent.

2. Whether, having regard to the provisions of s 101 of the Environmental Planning and Assessment Act 1979 and in the events which have happened, it is competent for the Court to make such declarations, findings or orders.

Particulars
Public notice of the development consent was given on 7 July 2003 and these proceedings were not commenced before the expiration of 3 months from the date on which public notice was so given.

If the answer to 1 and 2 is yes:
3. Whether conditions 34 and 35 are invalid having regard to the provisions of:
(i) s 94 of the EPA Act;
(ii) the Respondent’s Contributions Plan 1995;

Particulars
(a) the contributions determined by condition 16 of the Development Consent are conditions relating to citywide cycleways;
(b) the works required to be carried out pursuant to conditions 34 and 35 are in respect of local cycleways relevant to the land contained in the development consent.

4. Whether condition 36 is invalid having regard to the provisions of:
(i) s 94 of the EPA Act; and
(ii) the Respondent’s Contributions Plan 1995.
5. Whether, if one or more of the conditions 34, 35 and 36 of the Development Consent were declared or found to be invalid and/or were severed from the Development Consent pursuant to the power of modification contained in s 96 of the EP&A Act, the development thus constituted by the modified development consent would be substantially the same development as that for which the Development Consent was originally granted.

4 At the commencement of the hearing the Applicant filed, with the leave of the Court, a Notice of Motion seeking an order that the hearing of Class 4 proceedings No 41296 of 2004, commenced by the Applicant on 21 October 2004, be consolidated with the Class 1 proceedings and that the matters be heard together. The motion was not opposed and I granted the order sought. Accordingly the hearing on the preliminary points of law proceeded as a Class 4 matter in which the following orders were sought by the Applicant:

1. A declaration that Condition 34 of Consent No LD00-623 granted by the Respondent on 27 June 2000 is void and of no effect;
2. A declaration that Condition 35 of Consent No LD00-623 granted by the Respondent on 27 June 2000 is void and of no effect;
3. A declaration that Condition 36 of Consent No LD00-623 granted by the Respondent on 27 June 2000 is void and of no effect;
4. Such further or other Orders as this Court deems appropriate in the circumstances; and
5. An Order that the Respondent pay the Applicant’s costs on an indemnity basis; or
6. In the alternative to (5) above, an Order that the Respondent pay the Applicant’s costs.

5 As a result of the fact that the preliminary points of law raised by the parties are being heard in Class 4 proceedings, questions 1(i), (ii) and (iii) above are no longer relevant and I do not need to deal with these.

6 The Applicant’s principal challenge to the validity of the conditions is mounted in relation to condition 36 of the Stage 18 Consent. It would usually be appropriate to first consider question 2, which relates to s 101 of the EP&A Act as, if successful, the challenge to the validity of the conditions must end. However it is appropriate in this case to first briefly consider question 4, which concerns the validity of condition 36, as the arguments raised by the parties in relation to question 2 concerned whether this condition was based on a jurisdictional error on the part of the Council in determining to grant the Stage 18 Consent.

Question 4: The Validity of Condition 36

7 The Applicant argued that in order for condition 36 to be valid there would have to be a valid contributions plan, made pursuant to s 94 of the EP&A Act, which provided for the dedication of land as public land.

8 Section 94 of the EP&A Act provides as follows:

(1) Subject to subsection (2), if a consent authority is satisfied that a development, the subject of a development application or of an application for a complying development certificate, will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant consent to that application subject to a condition requiring:
(a) the dedication of land free of cost, or
(b) the payment of a monetary contribution,
or both.
(2) A condition referred to in subsection (1) is to be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services mentioned in that subsection.
…
(5) The consent authority may accept:
(a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or
(b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3).
…
(8) Land dedicated in accordance with a condition imposed under subsection (1) or in part or full satisfaction of a condition imposed under subsection (3) is to be made available by the consent authority for the purpose of providing public amenities or public services or both within a reasonable time.
(9) If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land or other sum of money that the applicant has elsewhere dedicated free of cost within the area or previously paid to the consent authority other than as a condition of the grant of consent under this Act.
…
(11) A council may impose a condition referred to in this section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94B.
…

9 The Applicant argued that as s 94(1) is subject to s 94(11), a condition such as condition 36 which requires “the dedication of land free of cost” can only be imposed if that dedication “is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94B.” The Applicant argued that as the only relevant contributions plan now in force, being the Maitland City Council s 94 Contributions Plan dated September 1995, did not provide for the dedication of Lot 1825, condition 36 is invalid.

10 The Council put forward no argument opposing the Applicant’s submissions about the legal validity of condition 36 and I note that the Applicant’s argument that condition 36 is invalid appears to be entirely correct. However, the Council argued that the Applicant could not challenge the validity of condition 36 in Class 4 proceedings for the following two reasons:

(a) the proceedings were barred by s 101 of the EP&A Act (question 2); and alternatively
(b) condition 36 is not severable from the Stage 18 Consent so that if the Court finds that condition 36 is invalid the whole of the Stage 18 Consent would have to be declared invalid (question 5).
Accordingly, questions 2 and 5 need to be determined.

11 Public notice of the grant of the Stage 18 Consent was published in a newspaper on 7 July 2003 pursuant to s 101 of the EP&A Act. Section 101 provides that:

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

12 The Applicant commenced these Class 4 proceedings on 21 October 2004, more than 3 months after public notice was given. Accordingly, if s 101 applies the Applicant is barred from challenging condition 36 of the Stage 18 Consent.

The Applicant’s Submissions

13 The Applicant relied on the following two arguments to support its submission that s 101 of the EP&A Act did not bar it from challenging the validity of condition 36 of the Stage 18 Consent.

14 The Applicant’s first argument was that the orders sought by the Applicant in the Class 4 proceedings relate only to the validity of certain conditions of the Stage 18 Consent and not to the validity of the Stage 18 Consent itself. Accordingly the Applicant argued that, assuming the Court finds that the impugned conditions are severable so that the Stage 18 Consent is not invalidated, s 101 of the EP&A Act does not apply. The Applicant accepted that if I were minded to accept the Applicant’s submissions in this regard it would be necessary for me to depart from the decision of Cripps J in Woolworths Limited and Kenlida Pty Limited v Bathurst City Council and Austcorp No 71 Pty Limited (1987) 63 LGRA 55 (“Woolworths v Bathurst”).

15 The Applicant’s second argument was that this case falls within the exceptions to privative clauses identified in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (“the Hickman principles”), particularly as interpreted in the recent High Court decision of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (“Plaintiff S157/2002”), so that s 101 does not bar this action. In Plaintiff S157/2002 the High Court held that a privative clause in the Migration Act 1958 (Cth) did not protect against challenges based on jurisdictional error and it was not necessary for a plaintiff to show that this jurisdictional error was manifest.

16 The Applicant acknowledged that the reasoning applied by the High Court in Plaintiff S157/2002 stands in contrast to that adopted by the Court of Appeal in Sericott v Snowy River Council (1999) 108 LGERA 66 (“Sericott”). In Sericott a majority of the Court of Appeal considered that the protection from challenge under s 104A of the then EP&A Act, now s 101 of the current EP&A Act, was only lifted if the jurisdictional error alleged was manifest. The Applicant argued in the alternative that if Sericott is still the law in New South Wales there is a manifest jurisdictional error in the Stage 18 Consent so that s 101 does not bar this action. In this regard that Applicant argued that in order to ascertain that condition 36 was beyond power reference need only be made to s 94(11) of the EP&A Act and to the relevant contributions plan to confirm that it made no provision for the dedication of Lot 1825 as public land. Further, the Applicant argued that the Council had essentially conceded that condition 36 is beyond power.

17 The Council argued that s 101 bars the Applicant from challenging the validity of condition 36 of the Stage 18 Consent as:

(i) it is well settled law that a challenge to the conditions of consent is a challenge to the consent itself and such actions are barred if, as here, a s 101 notice has been published: Woolworths v Bathurst ;
(ii) Plaintiff S157/2002 can be distinguished as in that case the High Court was considering the Migration Act 1958 (Cth) and not s 101 of the EP&A Act. Accordingly, the test promulgated in Sericott , namely that the jurisdictional error must be manifest on the face of the consent conditions before an exception to the Hickman principle can be established, remains the applicable law in New South Wales and I am bound to apply this test; and
(iii) Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 (“ Mitchforce ”) makes it clear that the validity of Sericott is not affected by Plaintiff S157/2002 .

18 The Council argued that no manifest error is evident in relation to condition 36 of the Stage 18 Consent, and accordingly, that s 101 of the EP&A Act operates to bar the Applicant’s claim.

19 On 19 November 2004 after the hearing in this matter, Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422 (“Pallas Newco”) was handed down in the Court of Appeal and the parties made further short written submissions on this decision.

Finding in Relation to Question 2
Argument 1

20 Woolworths v Bathurst is well established authority in this Court for the proposition that a challenge to the conditions of consent is a challenge to a development consent within the terms of s 101 and I do not consider that this decision should be departed from. Accordingly, the Applicant must fail in relation to Argument 1.

Argument 2

21 In Sericott the Court of Appeal held that the Hickman principles applied to s 104A of the EP&A Act so that s 104A did not operate to prevent a challenge on the ground of manifest jurisdictional error being brought outside the time limit specified in the section.

22 In Mitchforce Spigelman CJ indicated that, despite Plaintiff S157/2002, Sericott remains good law and:

A privative provision on its proper construction will not protect a ‘manifest’ defect, in the sense that a decision is not a bona fide attempt to exercise the power; that it does not relate to the subject matter of the legislation and that it is not reasonably capable of reference to the power given to the decision-maker (per Spigelman CJ at [68])

23 In Pallas Newco the Court of Appeal held that the characterisation of development for the purposes of a local environmental plan was a jurisdictional fact and that, accordingly, Londish v Knox Grammar School (1997) 97 LGERA 1 was wrongly decided. Spigelman CJ considered the scope of s 101 in his analysis of whether the relevant provision was a jurisdictional fact. As Pallas Newco did not deal directly with jurisdictional error and s 101, the comments made by Spigelman CJ in relation to s 101, as set out below, are obiter and do not form part of the ratio of the decision.

24 In Pallas Newco Spigelman CJ, with whom Mason P, Sheller JA and Cripps AJA agreed, held at [69] to [85] that the reasoning adopted by the High Court in Plaintiff S157/2002, and the numerous cases which preceded this decision, did not apply to s 101 of the EP&A Act. In this regard Spigelman CJ noted at [74] to [79] that s 101 differs from the provision considered in Plaintiff S157/2002 in that:

First, there is a precondition to the operation of s101 that public notice of the granting of a consent is to be given. This precondition does reinforce the operation of the privative clause.

Secondly, there is no absolute bar. On the contrary, s101 permits any form of challenge within a specified time period. Although the time period may be regarded as short, that does not detract from the fact that, unlike Plaintiff S157 and the earlier decisions, there is no complete bar to legal challenge on the grounds of jurisdictional error. …
…
The third factor which differentiates s101 from the section considered in Plaintiff S157 is that s101 refers to questioning “the validity of the consent”. It does not say that “the consent … cannot be questioned”. In Plaintiff S157, and the long line of cases which it affirmed, the reference to “decision”, or the other words equivalent to the word “consent” in the present case, was not qualified by a word such as “validity”.

The word “validity” could refer only to the correctness of the decision made by a consent authority. It could be read down to apply only to errors within jurisdiction. (See, e.g. Ex parte Hulin; Re Gillespie at 33.) If s101 had constituted a complete bar, so that the principle that Parliament does not intend to deny access to the courts was given its full force, then I would have read down “validity” accordingly.

However, the word “validity” in s101, which permits challenge for a discrete period, is, in my opinion, intended to protect decisions from jurisdictional error.

25 Spigelman CJ held at [83] that:

I maintain the opinion I expressed in Vanmeld at [143]-[150] that the Hickman principle does apply, even after the expiration of the three month period. This appears to have become the preponderant view. (See Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs & Planning (1996) 90 LGERA 341; Wykanak v Rockdale City Council (1998) 100 LGERA 27; and the majority in this Court in Sericott at [37]-[41] per Beazley JA, with whom Handley JA agreed at [1]; see also Hornsby Shire Council v Vitone Developments at [52]-[58].)

26 It would appear that the majority view expressed by the Court of Appeal in Pallas Newco, albeit obiter, is that the time bar posed by s 101 of the EP&A Act is subject only to the Hickman principles and, in particular here, only to manifest jurisdictional error. If the jurisdictional error in condition 36 is manifest, it can be challenged so that the answer to question 2 would be that this appeal is competent.

27 I am of the view, for the reasons set out above in the Applicant’s submissions at par 16, that jurisdictional error is manifest in relation to condition 36 so that the test of manifest jurisdictional error as propounded in Sericott and Mitchforce is met. Accordingly, in my view, the s 101 notice does not operate to bar the Applicant from challenging the validity of condition 36 of the Stage 18 Consent. It follows that condition 36 is void. The question then arises as to whether condition 36 is severable (question 5)

28 At the hearing of this matter the Respondent sought to raise estoppel issues. This was opposed by the Council because of lack of notice that the argument was to be run. The Council considered it would need to put on more evidence if this was to be argued. Before I deal with the issue of severability of condition 36 I need advice from the parties as to whether the estoppel argument is relevant to that issue.