Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd
[2009] NSWCA 160
•29 June 2009
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160
FILE NUMBER(S):
40229/08
HEARING DATE(S):
29 & 30 April 2009
JUDGMENT DATE:
29 June 2009
PARTIES:
Baulkham Hills Shire Council
Ko-veda Holiday Park Estate Ltd
JUDGMENT OF:
Tobias JA Young JA Bergin CJ in Eq
LOWER COURT JURISDICTION:
Land & Environment Court
LOWER COURT FILE NUMBER(S):
LEC 40625/07
LOWER COURT JUDICIAL OFFICER:
Pain J
LOWER COURT DATE OF DECISION:
4 July 2008
LOWER COURT MEDIUM NEUTRAL CITATION:
Bauilkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd & Anor [2008] NSWLEC 181
COUNSEL:
A: A Galasso SC / M C Fraser
1R: M Craig QC / T Howard
2R: A M Pickles
SOLICITORS:
A: Baulkham Hills Shire Council, Castle Hill
1R: Hones La Hood, North Sydney
2R: Riley Gray-Spencer, Sydney
CATCHWORDS:
ENVIRONMENT AND PLANNING – Environmental planning – Development Control – Consents, approvals and permits – Conditions – Whether installation of cabins occurred in breach of conditions – Whether construction certificate issued in breach of conditions – Whether construction certificate required prior to installation of cabins – Whether accredited certifier wrongly joined in proceedings – Whether Part 3A permit issued in accordance with conditions – Whether implementation of non-approved Vegetation Management Plan on site amended conditions – Construction of development consents and conditions – Whether condition requiring particular staging of cabins installation and landscaping breached – Whether development consent can incorporate by reference unidentified supplementary information – Whether proceedings ought to be remitted to Land and Environment Court to be heard by a judge other than the primary judge – Costs
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Rivers and Foreshores Improvement Act 1948
Water Management Act 2000
CASES CITED:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339
Baulkham Hills Shire Council v Ko-Veda Holiday
Park Estate Ltd & Anor [2008] NSWLEC 181
Cann’s Proprietary Limited v The Commonwealth [1946] HCA 5; (1946) 71 CLR 210
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52
Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117
Crane v Gething [2000] FCA 45; (2005) 169 ALR 727
Denis Gelle Pty Ltd and Integrated Site Design Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 229
King Gee Clothing Company Proprietary Limited v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184
Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGRA 321
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245
X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630
TEXTS CITED:
DECISION:
See [130]
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40229/08
LEC 40625/07TOBIAS JA
YOUNG JA
BERGIN CJ in EQMonday 29 June 2009
BAULKHAM HILLS SHIRE COUNCIL v KO-VEDA HOLIDAY PARK ESTATE LTD & ANOR
Judgment
TOBIAS JA: At all material times the first respondent was the owner of Lot 1 DP 119919, Lot 1 DP 783552 and Lot 5 DP 729341 (the caravan park land) which was bounded by River Road, Wisemans Ferry on the west and the Hawkesbury River on the east and upon which it conducted a holiday park known as “Ko-Veda Holiday Park”. Within Lot 5 DP 729341 (Lot 5) there were 47 sites upon which were erected timber holiday cabins (the cabins).
The first respondent was also the owner of Lot D DP 384298 (Lot D) which also had frontages to River Road and the Hawkesbury River and which had a common boundary with the caravan park land to its immediate south.
On 1 August 2003 the appellant (the Council) granted development consent (the cabins consent) for the relocation from Lot 5 to Lot D of the 47 cabin sites subject to a number of conditions (the cabin conditions).
By an application filed on 4 July 2007 in Class 4 of the jurisdiction of the Land and Environment Court, the Council sought declarations that the first respondent had breached a number of the cabin conditions. The respondents to that application were the first respondent and the second respondent (Mr Norris) who was an accredited certifier pursuant to s 109T(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The reason Mr Norris was joined to the proceedings was because the Council sought a declaration that Construction Certificate No. PC 22506 dated 20 November 2006 which had been issued by Mr Norris purportedly pursuant to Part 4A of the EP&A Act (the Certificate) had been issued in breach of s 109F of that Act and was therefore invalid.
The proceedings were heard by Pain J who on 4 July 2008 found that there had been no breach by the first respondent of any of the cabin conditions except Conditions 5 and 46 and that the Certificate had been validly issued by Mr Norris. However, as the Council did not seek any relief with respect to those breaches, on 4 August 2008 her Honour ordered that the Council’s application be dismissed and that it pay the costs of both respondents: Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd & Anor [2008] NSWLEC 181. It is from those orders that the Council appeals to this Court.
The relevant cabin conditions
The following conditions of the cabins consent are relevant to the issue raised on the appeal:
“Condition 1 – Development in accordance with submitted plans
The development being carried out substantially in accordance with Development Application No 2430/03/HE and accompanying Environmental Impact Statement (EIS) prepared by Integrated Site Design dated June 2002, and all supplementary and additional information received by Council, except where amended by the following conditions of consent.
The approval allows the relocation of 47 short-term sites from Lot 5 DP 729341 and Lot 1 DP 783552 to Lot D.
…
Condition 2 – Staging of Works
This approval allows the installation of cabins in stages, as detailed in the Environmental Impact Statement. Minor amendments to the staging of the development may be permitted subject to a request in writing being made to Council’s Director – Planning Services, providing satisfactory justification for the amendments and addressing the impact upon the adjoining property owners
…Condition 6 – Compliance with Department of Infrastructure, Planning and Natural Resources Requirements
Compliance with the requirements of the NSW Department of Infrastructure, Planning and Natural Resources attached as Appendix A to this consent and dated 26 June 2003, through all stages of the development.
…Condition 8 – Building Construction Certificate
The submission of a Building Construction Certificate for each proposed stage of the development, detailing the location of all cabins, for the approval by Council or an Accredited Certifier, prior to the erection of the structures. Plans submitted with the construction certificate are to be amended to incorporate the conditions of the Development Consent.
…Prior to the Issue of a Construction Certificate for the Cabins
Condition 23 – Part 3A permit from Department of Sustainable Natural Resources
The submission of documentary evidence that the Part 3A permit under the provisions of the Rivers and Foreshores Improvement Act 1948, has been issued by the Department of Infrastructure, Planning and Natural Resources, prior to issue of the Construction Certificate.
…Condition 30 – Completion of Landscape Works
Upon completion of each stage of landscape works, the applicant/developer is to arrange an inspection of the landscape works undertaken with the appropriate Officers from Council and the Department of Sustainable Natural Resources. The installation of each subsequent stage of cabins cannot proceed until the applicant/developer is advised in writing by both Council and the Department of Sustainable Natural Resources that the landscape works have been completed satisfactorily. Should rectification works or additional landscape works be required, the applicant/developer will be advised as such and a subsequent inspection will be undertaken by the parties. The satisfactory completion of landscape works is required prior to the issue of a Building Construction Certificate for each stage of the development.
…Conditions Specific to Each State of Development
Stage 1General Matters
Condition 41 – Part 3A permit from Department of Infrastructure, Planning and Natural Resources
No works are to commence on site until such time as a Part 3A permit required under the provisions of the Rivers and Foreshores Improvement Act 1948 has been issued by the Department of Sustainable Natural Resources.”
The particulars of the alleged breaches
The Council’s Further Amended Points of Claim (FAPOC) relevantly alleged the following breaches as summarised by the primary judge at [5] of her judgment:
“Breach of cabins consent – First Respondent
Breach of condition 1
(i)Condition 1 requires the development being carried out substantially in accordance with Development Application No. 2430/03/HE and accompanying Environmental Impact Statement (EIS) and all supplementary and additional information received by Council except where amended by the subsequent conditions of consent.
(ii)The EIS referred to in condition 1 of the cabins consent comprised, inter alia, volume 1 “Main Report” prepared by Integrated Site Design dated June 2002.
(iii)The EIS proposed a vegetation program of the foreshore of the Caravan Park where adjoining Hawkesbury River in a staged manner and to precede the construction of the cabins to be relocated, the subject of the cabins consent.
(iv)In about December 2006 the First Respondent constructed, or alternatively procured the construction, of a cabin on a site known as cabin lot 47.
(v)In about March 2007 the First Respondent constructed, or alternatively procured the construction, of a cabin on a lot known as cabin lot 40.
(vi)The construction of the cabins was in breach of condition 1 of the cabins consent.
Particulars
A. Page 23 of the EIS provides that in order to ensure appropriate levels of visual screening cabin installation will not occur until the revegetation zones have progressed to a suitably advanced stage, expected to be achieved between 18 and 24 months after finish of installation of the planting.
B. Section 6.12 of a Report entitled “Ko-Veda Holiday Park Cabin Development Native Vegetation Revegetation and Management Plan” dated June 2002 prepared by Earth Repair & EcoHort Pty Limited and comprising an Appendix to the EIS prescribed the nature of the re-vegetation project staging (the vegetation management plan - VMP).
C. Section 4.8 at page 24 of the EIS provided that throughout all stages cabins are not to be installed on sites until the revegetation programme in front of those cabins is in place and sufficiently advanced.
D. Page 25 of the EIS provided for certain stages with the installation of cabins on the initial 12 sites to be undertaken in stage 2.
D1. A staging plan submitted with the development application incorporated by condition 1 of the consent provided for the installation of cabins on the initial 12 sites to be undertaken in stage 2. (this plan was exhibit B in the proceedings)
E. At the time of the installation of the cabins Lot 40 and Lot 47
(a) the vegetation in front of those sites was either not in place or not sufficiently advanced as described in the EIS.
(b) the revegetation zones had not progressed to a suitably advanced stage in order to ensure appropriate levels of visual screening, from the Hawkesbury River.
(c) the components of stage 1 identified on page 25 of the EIS, or most of them, had not been undertaken prior to the initial installation of cabins.
(d) the vegetation undertaken at the Caravan Park did not comply with the description of the revegetation treatment described in section 6.12 of the VMP appended to the EIS.
Breach of condition 2
(vii)Condition 2 provides for the installation of cabins in stages as detailed in the EIS. Page 25 identifies the stages for works on the subject site and the components of those stages.
(viii)The installation of cabin Lot 40 and cabin Lot 47 was not in accordance with the staging of works set out in the EIS. The same particulars as alleged for condition 1 apply to this breach also.
Breach of condition 6
(ix)Condition 6 of the cabins consent prescribed compliance with the requirements of the New South Wales Department of Infrastructure Planning and Natural Resources (the Department) as set out in its letter dated 26 June 2003 forming Appendix A to the Development Consent.
(x)Clause 1 of the general terms of approval in Appendix A prescribed the obtaining of a permit under Pt 3A of the Rivers and Foreshores Improvement Act 1948 (the RFI Act) prior to the commencement of any works upon the site.
(xi)The First Respondent failed to obtain a permit under Pt 3A of the RFI Act in relation to works the subject of the cabins consent prior to the carrying out of works in relation to the cabins consent.
(xii)In the alternative, the First Respondent failed to obtain a permit under Pt 3A of the RFI Act in relation to works concerned with the installation of cabins on the subject land prior to the carrying out of those works.
Breach of condition 23
(xiii)Condition 23 required the provision of documentary evidence of a Pt 3A permit under the provision of the RFI Act prior to the issue of the CC. In such breach of condition 23 the first respondent failed to provide documentary evidence of a Pt 3A permit under the provision of the RFI Act prior to the issue of the CC.
(xiv)In the alternative, in breach of condition 23 the first respondent failed to provide documentary evidence of a Pt 3A permit under the provision of the RFI Act in respect of all works for which the CC was sought prior to the issue of the CC.
Breach of condition 30
(xv)Condition 30 provided that on completion of each stage of landscape works the First Respondent was to arrange an inspection of landscape works undertaken by the Council and the relevant officer from the Department, and the installation of subsequent stages of cabins was not to proceed until the First Respondent was advised in writing by both bodies that the landscape works had been completed satisfactorily.
(xvi)Upon completion of landscape works undertaken at the holiday park the First Respondent failed to arrange the required inspection.
(xvii)The two cabins were installed prior to either of the required inspections, or any advice in writing by either of the bodies above referred, that landscape works have been completed satisfactorily.
(xviii)Condition 30 required satisfactory completion of landscape works prior to the issue of a building CC for each stage of the development. In breach of condition 30 the landscape works were not satisfactorily completed prior to the issue of the building CC for the stage for which it was issued.
Breach of condition 41
(xix)Condition 41 provides that no work commence on the site until such time as a Pt 3A permit pursuant to the RFI Act has been issued by the Department.
(xx)The First Respondent undertook, or alternatively procured the undertaking, of works on the subject site prior to obtaining a Pt 3A approval as above referred.
Particulars
(a) The First Respondent undertook landscaping works.
(b) The First Respondent procured the construction of the cabins above referred.
Construction Certificate – breaches of Mr Norris
A number of breaches of conditions give rise to invalidity of the CC issued by Mr Norris are specified.
Breach of condition 1
(xxi)On or about 23 November 2006 Mr Norris issued, as principal certifying authority, Construction Certificate No. PC22506 with respect to “Stage 1 (Relocation of 12)”.
(xxii)On its proper construction the cabins consent provided for no erection of cabins in stage 1, or alternatively did not provide for the erection of all 12 cabins in stage 1.
Breach of condition 23
(xxiii)Condition 23 of the cabins consent prescribed the provision of documentary evidence of a Pt 3A permit under the provision of the RFI Act prior to the issue of the CC.
(xxiv)No documentary evidence of a permit pursuant to Pt 3A of the RFI Act as applicable to the cabins consent was issued prior to the CC.
(xxv)In the alternative, no permit pursuant to Pt 3A of the RFI Act as applicable to the works the subject of the CC was issued prior to the issue of the CC, and accordingly no documentary evidence thereof existed prior to the issue of the CC.
Breach of condition 26
…
Breach of condition 30
(xxix)Condition 30 of the cabins consent provided that on completion of each stage of landscape works, the First Respondent was to arrange an inspection of landscape works undertaken by the Council and the relevant officer from the Department, and the installation of subsequent stage of cabins was not to proceed until the First Respondent was advised in writing by both bodies that the landscape works had been completed satisfactorily and that the satisfactory completion of landscape works was to occur prior to the issue of a building CC for each stage of the development.
(xxx)Prior to the issue of the CC neither the inspection above referred or all of it, nor any advice in writing by either or both of the bodies above referred, that landscape works have been completed satisfactorily had occurred.
(xxxi)Mr Norris did not satisfy himself, or alternatively could not have rationally been satisfied, that the matters the subject of the CC were not inconsistent with the terms of the cabins consent or that conditions of the cabins consent that must be complied with before the issue of a CC may be issued had been complied with.
(xxxii)The issue of the CC was in breach of s 109F of the EP&A Act and/or cl 145 of the EP&A Regulation and/or cl 146 of the EP&A Regulation.”
The relevant provisions of the legislation
The relevant sections of the EP&A Act are set out below as they were in force when relevant decisions were made and include s 4, s 80(12), s 81A(5), s 93, s 109C(1)(b) and s 109F, and cl 145, cl 146, cl 147(1)(e) and cl 161 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). Some of these sections have been subsequently amended.
Section 4 of the EP&A Act defined the following:
“building includes part of a building and any structure or part of a structure, but does not include:
(a) a manufactured home, a moveable dwelling or associated structure or part of a manufactured home, a moveable dwelling or associated structure, or
(b) a temporary structure within the meaning of the Local Government Act 1993.
building work means any physical activity involved in the erection of a building.
construction certificate means a certificate referred to in section 109C (1) (b).”
Section 80(12) of the EP&A Act provided:
“80 Determination
…(12) Effect of issuing construction certificate
If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 96).”
Section 81A(5) provided:
“81A Effects of development consents and commencement of development
(5) Regulations may provide for the issue of certificates
The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.”
Sections 93(1) and (2) provided:
“93 Granting and modification of approval by approval body
(1) Despite any other Act or law, an approval body must, in respect of integrated development for which development consent has been granted following the provision by the approval body of the general terms of the approval proposed to be granted by the approval body in relation to the development, grant approval to any application for approval that is made within 3 years after the date on which the development consent is granted if, within that 3-year period, the development consent has not lapsed or been revoked.
(2) The approval may be granted subject to conditions that are not inconsistent with the development consent.
…”
Section 109C(1)(b) was relevantly in the following terms:
“109C Part 4A certificates
(1) The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part:
…
(b) a construction certificate, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A(5).”
Section 109F relevantly provided:
“109F Restriction on issue of construction certificates
(1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless the certifying authority is satisfied that:
(a) the requirements of the regulations referred to in section 81A(5) have been complied with, and
…”
Clauses 146 and 161 of the Regulation made pursuant to s 81A(5) of the EP&A Act relevantly provided:
“146 Compliance with conditions of development consent
A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless it is satisfied that each of the following have been complied with:
…
(c)each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.
161Certifying authorities may be satisfied as to certain matters: section 109O
(1) This clause applies to the following matters:
(a)any matter that relates to the form or content of the plans and specifications for the following kind of work to be carried out in connection with the erection of a building or the subdivision of land:
(i) earthwork,
(ii)road work, including road pavement and road finishing,
(iii) stormwater drainage work,
(iv) landscaping work
(v) erosion and sedimentation control work,
(vi) excavation work,
(vii) mechanical work
(viii) structural work,
(ix) hydraulic work,
(x)work associated with driveways and parking bays, including road pavement and road finishing,
(b)any matter that relates to the external finish of a building.
(2)Any requirement of the conditions of a development consent that a consent authority or council is to be satisfied as to a matter to which this clause applies is taken to have been complied with if a certifying authority is satisfied as to that matter.”
Division 5 of Part 4 of the EP&A Act sets out a special procedure for what is referred to as “integrated development”. Section 91 defines that expression relevantly as follows:
(1)Integrated development is development … that, in order for it to be carried out, requires development consent and one or more of the following approvals:
Act Provision Approval Rivers and Foreshores Improvement Act 1948 Part 3A permit under Part 3A
Section 91A relevantly provided:
“(1)This section applies to the determination of a development application for local development that is integrated development.
(2)Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. ...
(3)A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval.”
Conditions 23 and 41 of the cabin conditions called for a permit to be issued by the Department of Sustainable Natural Resources under Part 3A of the Rivers and Foreshores Improvement Act 1948 (the RFI Act), since repealed by the Water Management Act 2000: s 401 and Schedule 7 and replaced by s 91 and para (b) of the definition of “controlled activity” in the Dictionary to that Act. Relevantly, s 22A of the RFI Act defined “protected land” to mean land that is not more than 40m from the top of the bank of “protected waters”. The Hawkesbury River was, by definition, “protected waters”.
Section 22B of the RFI Act relevantly provided as follows:
(1)A person must not:
(a) make an excavation on, in or under protected land, or
(b) …
(c) …
unless the person is … authorised to do so by permit under this Part and does so in accordance with any conditions to which the permit is subject …”
Extracts from documents relevant to the issues
o The Environmental Impact Statement referred to in Condition 1 (the EIS)
Paragraphs 4.6 and 4.8 of the EIS were relevantly in the following terms:
“4.6 Proposed Revegetation and Landscaping
A comprehensive revegetation plan has been prepared for Lot D by John McIntyre and Associates in conjunction with EcoHort Pty Ltd and is found at Appendix E.
Key elements of the plan include:
o A 30m to 33m wide riverbank revegetation zone comprising four different planting treatment regimes based on selected species;
…
o A staged approach to the provision of all planting and landscape elements, and
…
Riverfront and Cabin precinct planting
From a perusal of the plan it can be seen that the four different planting treatments along the foreshore provide for:
o Five areas of dense river-flat plantings that screen views to and from the river;
o Five points where open grassy forest treatments allow for some limited framed views to the river through the trees. Access to the river via the proposed ramps also occurs at these points;
o Five groups of riverbank casuarinas with associated grassed viewing areas, and
o Groupings of tall fire retardant rainforest trees around the clusters of cabins.
The plan also selects a range of interrelated species to ensure appropriate proportions of ground cover, understorey and canopy specimens within the treatment zones. … This will also allow for some limited views to the river essentially from pedestrian viewing areas while ensuring that views from the river will be of dense plantings.
…
Staging and management
Although the overall revegetation program could be implemented over the course of a continuous 24 month installation, maintenance and monitoring period it is intended to implement the program in four stages over a longer period. Regardless, in order to ensure appropriate levels of visual screening, cabin installation will not occur until the revegetation zones have progressed to a suitably advanced stage. These levels are expected to be achieved between 18 and 24 months after initial installation of the planting. A wider discussion of development staging is set out under 4.8 below.
…
Landscaping Bond
A bond is to be put in place with DLWC with respect to the revegetation works.
4.8 Staging and timing:
It is proposed that the development be undertaken in four stages. With respect to the short term dwelling sites these Stages will commence on the northern portion of Lot D adjacent to the existing Ko Veda operation and move towards the south. Throughout all Stages cabins are not to be installed on sites until the revegetation program in front of those cabins is in place and sufficiently advanced. When the first cabin is installed in Stage 1 the revegetation program for Stage 2 will commence. Similarly when the first cabin is installed in Stage 2 the revegetation program for Stage 3 will commence and so on.
The four Stages can be set out as follows:
Stage 1
…
oProvision of revegetation and landscaping for initial 12 sites;
…
Stage 2
…
oOn-going installation of cabins on initial 12 sites established in Stage 1;
…
Stage 3
…
oOn-going installation of cabins on second group of 12 sites established in Stage 2;
…
Stage 4
…
oInstallation of cabins on third group of 12 sites established in Stage 3;
…” (emphasis added)
Part 5 of the EIS was headed “IMPLICATIONS OF THE PROPOSAL”. It relevantly stated:
“5.1 Type of application:
Integrated Development:
The proposal to relocate dwelling sites from the existing Ko Veda operation to the more recently acquired adjoining allotment requires development consent. Given the proposal involves some minor excavation on land adjacent to the Hawkesbury River a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 may be required. This has been discussed with the Department of Land and Water Conservation and in addition to comments already received it is evident that the proposal should be referred to the Department for comment. Consequently the proposal falls within the category of Integrated Development as defined in Section 91 of the EPA Act 1979 (as amended).”
Paragraph 5.3 of the EIS was headed “Visual Impact”. After referring to the requirements of a Scenic Quality Study, it continued:
“Accordingly the proposal complies with these requirements and is consistent with each of these suggested responses as follows:
…
o The visibility of the proposal has been assessed from the water. Photomontage material and drawings have been prepared and during the previous court case an inspection of the site was made from the water. This work has resulted in particular elements of the current design;
…
o A comprehensive landscape management plant accompanies the application;
o The landscape management plan includes a comprehensive tree planting and screening program based on species once believed to be prevalent on the site and in the general area.”
It is not unimportant to note that the landscaping proposal detailed in the EIS was in response to a previous application which had been rejected by the then Chief Judge of the Land and Environment Court: Denis Gelle Pty Ltd and Integrated Site Design Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 229 (the Denis Gelle decision). Under the heading “Previous Court Case”, the EIS noted that the proposed approach to the visual impact of the current development addressed the main findings of her Honour on that issue which the EIS then quoted as follows:
“53.The visual impact on the river scenery is clearly the major issue. Dr Lamb and Mr Smith agreed that, without effective screening, the visual impact of the proposal is unacceptable. They also agreed that with effective screening the proposal would be acceptable. This evidence is tantamount to saying that the proposed development will be acceptable only if it cannot be seen.
54.Given that the proposal’s acceptability depends on the effectiveness of screening, the likelihood that the proposed landscaping will perform as claimed is of paramount importance. On this issue the experts part company. Smith saw no difficulty in implementing the landscape plan. He pointed out that the landscaped area is communal land and will be managed by the caravan park management. Dr Lamb thought that the proposal is not feasible and believable because the dense landscaping required for screening will obscure the views from the 50 individually owned cabins.
53.I prefer Dr Lamb’s evidence. In my opinion, there is a reason for concern that the landscaping will not turn out in reality as shown on the landscape plans and will not achieve the degree of screening suggested in the applicant’s photomontages. While I accept that the landscaping proposal is made in good faith, I do not think that good faith is sufficient to provide certainty that it can be implemented. The dense landscaping needed for effective screening is arguably in conflict with the interests of owners of the cabins.
56.I am strengthened in this view by the fact that the applicant is not proposing to delay the erection of the cabins until the landscaping has grown to maturity. The owners of the cabins will therefore have full views of the river when they purchase. As the landscaping becomes denser, the views will gradually diminish. It would need only minor interference to retard the growth or change the character of the landscaping. Any change that favours views will reduce the effectiveness of the screen.
57.I have given consideration to the attempt by the landscape designer to reconcile the conflict between the screening and views by the proposed placement of alternate densely and lightly vegetated sections. Mr Smith agreed that this scheme would provide only ‘keyhole views’. I note that Mr Sainty was unable to refer the Court to any existing landscaping where this method has been successfully employed in a river environment.
58.I conclude that the landscaped screen is unlikely to be effective. Without such a screen the visual impact will be unacceptable.”
The EIS continued in the following terms:
“These findings highlight the importance of a landscape screening program that is achievable, that places a higher priority on views from the river than views to the river and delays the placement of cabins to ensure the success of the planting program.
As already noted in 4.6 above, the proposal in the current application specifically addresses these issues through a defined and staged planting program designed to provide predominantly dense screening of the proposed cabins with defined river bank viewing areas. In addition the program provides for the planting program to be sufficiently advanced prior to the installation of cabins. Such a comprehensive, integrated approach has rarely, if ever, been seen before along the river and underlines the proponent’s commitment to the issue.” (emphasis added)
Appendix E to the EIS comprised a vegetation, regeneration and management plan dated June 2002 (the 2002 VMP) of which the principal author was Mr Edgar Freimanis.
In its introduction the authors stated their intention to design a vegetative landscape that would allow for a balanced outcome that would satisfy the requirements of the holiday park proprietors and the other relevant stakeholders including the Department of Land and Water Conservation (DLWC). It also stated that it was intended to satisfy the concerns raised in the Land and Environment Court in the Denis Gelle decision.
Part 6.5 of the 2002 VMP was headed “Plant Species Selection and Recommended Revegetation Treatments”. It proposed five revegetation treatments of the riparian zone between the river and the cabin sites of which the first was referred to in the following terms:
“Dense River-flat Forest Treatment No.1 – The planting and restoration of a tall and dense River-flat forest, in the riverbank vicinity. Trees are expected to eventually reach a height of 30 meters, above a thick understorey of shrubs, vines, ferns and grasses in a wood-chip/leaf mulch planting bed. It is expected that the dense River-flat Forest will eventually block views both to and from the river. This treatment is proposed over an area of approximately 5130m². Refer to section AA in Figure 7 for a cross-sectional, artistic depiction of the mature Dense River-flat Forest Treatment No.1. This treatment could not be applied to the entire 380 meter long riverbank area, due to the Land and Environment Court [in the Denis Gelle decision] raising safety and amenity concerns about applying this treatment over the entire riverbank area.”
The reference to Figure 6 which formed part of the 2002 VMP indicates that except at five locations along the river frontage, where access was proposed upon terms, the Dense River-flat Forest Treatment Number 1 was proposed in front of the vast majority of the future cabin sites. In particular, that treatment was proposed directly in front of sites 40 and 47 upon which the two cabins which prompted the current litigation had been installed.
Paragraph 6.12 of the 2002 VMP was headed “Revegetation Project Staging and Overall Project Costs” and stated:
“The proposed revegetation project is to be carried out over 4 x 24-month stages. This equates to the overall revegetation project being implemented over an eight-year period. Each revegetation stage will be implemented 18 to 24 months before cabin installation works are started. The cabins are proposed to be installed over 4 stages with the first, second and third stages involving the installation of 12 cabins each and stage 4 involving the installation of 11 cabins. Stage 1 of the revegetation works will be initiated from the north-eastern end of the riverbank section, with each subsequent stage of the project being implemented in the relevant adjoining area. … In general, the installation of the cabins can only proceed after the relevant area of riverbank (or boundary treatment) has been revegetated using specifications outlined in section 6.0 and figures 6 and 7 and has developed to standards outlined in section 7.0. It is anticipated that each revegetation stage will take between 18 to 24 months to reach the standards outlined in section 7.0.
Stage 1 of the revegetation project will involve implementing the 4-specified riverbank revegetation treatments, as outlined in figure 6. … After initial installation, the stage 1 revegetation sites will require a 18-24 month maintenance period to ensure that the plantings have developed to standards outlined in section 7.0. Once the stage 1 works are established to standards outlined in section 7.0 and have been signed-off by an appropriate auditor (council and/or DLWC officer), the installation of the first 12 cabins can begin. Once the installation of the first 12 cabins has begun the Stage 2 revegetation works should be implemented.
The process of installing each Revegetation Stage 18 to 24 months prior to initiating cabin installation should be replicated for all of the proposed 4-stages of revegetation and cabin installation works. If the revegetation development standards are not acceptable within the anticipated 18 to 24 month period after installation, an extension of the plant establishment period will be required and will delay cabin installation until acceptable standards are reached. For a detailed assessment and timing of works refer to Table 3.” (emphasis added)
It will be appreciated that the signing off referred to in that part of the above extract from the 2002 VMP which was emphasised is reflected in Condition 30 of the cabin conditions.
o The General Terms of Approval (GTA) incorporated by Condition 6
Condition 6 of the cabin conditions had the effect of requiring compliance with the GTA issued by the Department of Infrastructure Planning and Natural Resources (DIPNR), formerly DLWC.
By letter dated 26 June 2003 DIPNR advised the Council of its GTA for work requiring a permit under Part 3A of the RFI Act “all of which must be included as part of any consent given by Council”. The letter recommended that the following condition be included in the cabins consent:
“The Construction Certificate will not be issued until a copy of the Part 3A permit, issued by the Department of Infrastructure, Planning and Natural Resources (DIPNR) has been provided to Council.”
It was stated that the reason for this condition was that works prescribed by the RFI Act cannot commence before the Applicant obtains a Part 3A permit.
The letter continued:
“The attached GTAs are not the actual permit, the applicant must submit a completed Application for Part 3A Permit form together with the application fee, receive the Part 3A permit from the Department after consent has been issued by council and before commencement of any works.
The permit will be issued upon request subject to payment of the prescribed fee, and subject to payment of any security required by the Department.” (emphasis in original)
There then followed the GTA. In the introduction to these terms it was noted that a permit issued under Part 3A of the RFI Act was required to carry out certain works “including excavations” on, in or under “protected land” which was stated to include the Hawkesbury River. The document then continued:
“Pursuant to Part 3A of the RFI Act, DIPNR, having reviewed the documentation associated with the DA, proposes to grant an approval to DA 2430/03/HE (subject to conditions). DIPNR’s General Terms of Approval for inclusion as conditions of consent, are set out below:”
The following provisions of the GTA are relevant:
“1.Any work which requires a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 (‘Part 3A permit’) is not to commence until such time as a Part 3A permit has been applied for, and subsequently issued by DIPNR. Any work the subject of a Part 3A permit must be carried out in accordance with drawings and any plans required by these conditions, and approved by DIPNR, and which will accompany the Part 3A permit.
…
Location of Cabins
11.The cabins are to be located at least 30m, measured horizontally and at right angles to the flow, as projected from the top of the bank after any rock bank stabilisation works. The location of the cabins must not prevent the full and satisfactory implementation of the Vegetation Management Plan (VMP).
Plans
12.Drawing No. DA-02, by Integrated Site Design, dated May 2002, and all other affected drawings, are to be amended to satisfy condition 11. The amendments are to be prepared in consultation with and with the approval of DLWC prior to the issue of the Part 3A permit.
…
Designation of Riparian Zone
17.A riparian zone at least 30 metres wide, measured horizontally as projected from the top of the bank after any rock bank stabilisation works, consisting of local native plant species, shall be maintained along the Hawkesbury River for the full length of the Site.
Site Rehabilitation - Vegetation
18.Site rehabilitation and proposed landscaping works must protect any remnant local native riparian vegetation at the Site, including existing reed beds, and restore any riparian zones, including within the watercourse, disturbed or otherwise affected by the development to a state that is reasonably representative of the natural ecotone of the protected waters system and as required in the Vegetation Management Plan (VMP).
19.A VMP is to be prepared by a person or persons with professional qualifications, knowledge and experience in bushland rehabilitation practices and the preparation of such plans, in consultation with, and with the approval of DIPNR prior to the issue of the Part 3A Permit. The VMP is to fully address all issues relating to the protection establishment and maintenance of the riparian zone. The VMP is to be in accordance with, but not limited to, the guideline ‘How to Prepare a Vegetation management Plan’ (Attachment B). The VMP is to include a costing breakdown for each aspect of its implementation, including monitoring, reporting and maintenance for a period of not less than two years after the date of the final planting. This costing will form the basis for a bond.
…
Cash Bond or Bank Guarantee
39.The applicant for a Part 3A permit will be required, as a pre-condition to the granting of the Part 3A permit, to provide a cash bond or bank guarantee, prior to the issue of any Part 3A permit, for the amount required to cover the cost of constructing the gangway and pontoons, decommissioning any temporary sediment and erosion controls and the rehabilitation and maintenance of the riparian zones as required by these conditions.
…
41.Any cash or bank guarantee will be held until such time, as any works, any rehabilitation works and any specified maintenance period are satisfactorily completed in accordance with the conditions of the Part 3A permit. ...” (emphasis in original)
The rock wall consent
Condition 11 of the GTA refers to “rock bank stabilisation works” (the rock wall works). This is a reference to a consent granted by Pearlman J in the Denis Gelle decision for the construction of a rock revetment wall to prevent scouring along approximately 230m of the bank of the Hawkesbury River on the northern part of Lot D subject to conditions. Those conditions were not in evidence but it was common ground that the construction of that wall required a Part 3A permit from DIPNR or its predecessor.
On 23 April 2003 an application was lodged with DIPNR for a Part 3A permit for the rock wall works as required by the conditions of the rock wall consent.
On 2 October 2003 DIPNR issued a Part 3A permit (the rock wall permit) to the first respondent’s predecessors. The first respondent relied upon the fact that that permit was issued after DIPNR had issued its GTA in respect of the cabins application by its letter to the Council of 26 June 2003, as well as after the Council had forwarded a copy of the cabins consent to DIPNR on 12 August 2003. The permit was for the stated purpose of undertaking
“earthworks associated with the construction of riverbank rock scour protection (rock rip-rap) for a stream length of approximately 230m of the bank of the Hawkesbury River on the northern part of Lot D DP384298.”
Condition 1 was headed “Area and Extended Works” and stated the following:
“●General Arrangement – Rock Revetment at Wisemans Ferry, Drawing Numbers 4622-01 and 4622-02, Issue B, by Patterson Britton & Partners Pty Ltd, last amendment dated 7 November 2002.
●Vegetation/Revegetation Management Plan (VMP) by Ecohort Pty Ltd dated August 2003 (Issue B).”
It was common ground that the Vegetation/Revegetation Management Plan referred to in Condition 1 (the 2003 VMP) was, relevantly, in all respects consistent with the 2002 VMP. Condition 26 et seq of the rock wall permit required site rehabilitation in accordance with that VMP. The permit expired on 2 October 2004.
Pursuant to cl 50 of the conditions of that permit, a bond in the amount of $58,135 was provided for
“the cost of rehabilitating the riparian zone (planting and installation component of the VMP) and the cost of maintaining the rehabilitated riparian zones (maintenance and monitoring component of the VMP) as required by these conditions …”
Condition 51 provided that the sum held would be
“reduced on application to DIPNR subject to the satisfactory completion of stages of works and activities required by the Part 3A permit.”
The rock wall VMP as modified
In February 2004 an approach was made on behalf of the first respondent to DIPNR seeking its approval of an amended VMP. Some time in February/March 2004 a draft concept plan to amend the rock wall VMP was provided to DIPNR which was then the subject of some negotiation. On 5 May 2004 DIPNR amended the rock wall permit by requiring implementation and maintenance to be carried out in accordance with the amended VMP (the 2004 VMP). The planting required under that VMP was carried out in July 2005. On 1 August 2005 two officers of DIPNR inspected the revegetation on Lot D and by letter dated 10 August 2005 following that inspection, DIPNR agreed to reduce the existing bond by $50,215, being the planting and installation component of the 2004 VMP.
The 2004 VMP differed fundamentally from the 2003 VMP the subject of the rock wall permit. In the latter, Dense River-flat Forest Treatment No. 1 was proposed over an area of approximately 2,449m². In the 2004 VMP that treatment was proposed only over an area of 432m².
With respect to Open Grassy River Flat Forest Treatment No. 2, the 2003 VMP proposed that treatment over an area of approximately 905m². In the 2004 VMP that treatment was eliminated.
In the 2003 VMP, Riverbank Casuarina Treatment No. 3 was proposed over an area of approximately 320m², being an uninterrupted line of vegetation in front of the cabin sites to which the plain related, namely Stages 1 and 2. This treatment was not included in the 2004 VMP. Further, that VMP substituted Riverbank Advanced Casuarina Treatment No. 2 in the locations where the 2003 VMP had proposed Dense River-flat Forest Treatment No. 1. The former was, apparently, significantly less dense than the latter.
The effect of the 2003 VMP (as well as the 2002 VMP) was to prevent views of the river from the cabins and of the cabins from the river which was the very reverse of what was proposed by the vegetation planting specified in the 2004 VMP.
The evidence before the primary judge and to which she referred at [192] suggested that at least two Council officers were aware of the negotiations between DIPNR and the representative of the first respondent for an amended VMP for the rock wall permit and that one of them had said that the Council would defer to DIPNR on matters of vegetation. However, her Honour only refers to this evidence in the context of the first respondent’s submission that in the exercise of her discretion she should decline to grant the Council the relief it sought. It is not relevant to the issue of breach and to the fundamental difference between the 2002 and 2003 VMPs on the one hand and the 2004 VMP on the other. This is not to suggest that it was not open to DIPNR to vary the rock wall permit which it had issued on 2 October 2003 or its conditions: it clearly had that power: see RFI Act, s 22C(4).
As I have indicated, the rock wall permit issued on 2 October 2003 expired on 2 October 2004. On 21 February 2007 the Department of Natural Resources (DNS) (which had succeeded DIPNR) purported to renew the permit for two years from 2 October 2005 to 2 October 2007. This “renewal” was confirmed in a further letter from DNS dated 15 May 2007. The permit was thus “renewed” after it had expired on 2 October 2004. Whether DNS had power to so “renew” the permit rather than issuing a new one is doubtful, but it was not the subject of argument and can be put to one side.
The two cabins, the installation of which on Lots 40 and 47 prompted the present litigation, were said to have been installed in December 2006 and March 2007 respectively, some 17 to 20 months after the planting component of the 2004 VMP had been completed.
The Certificate
On 2 November 2006 the first respondent applied to Mr Norris for a construction certificate for the installation of 12 cabins as part of Stage 1 of the development the subject of the cabins consent. Mr Norris issued such a certificate on 20 November 2006 purportedly under s 109C(1)(b) of the EP&A Act. It certified
“that building work completed in accordance with its documentation accompanying the application for the certificate [with such modifications verified by the certifying authority as may be shown on that documentation] will comply with the requirements of this Regulation as are referred to in s 81A(5) of the Environmental Planning and Assessment Act 1979.”
The joining of Mr Norris to the proceedings
The FAPOC of the Council alleged, relevantly, breach by the first respondent of conditions 1, 2, 6, 23, 30 and 41 of the cabin conditions. After reciting the issue by Mr Norris of the Certificate, paragraph 44 of the FAPOC alleged that it was issued in breach of the cabins consent and was invalid. It was alleged first, that on its proper construction the cabins consent did not provide for the installation of any cabins in Stage 1, an allegation made also against the first respondent as constituting a breach by it of Condition 1. Second, it was alleged that Mr Norris did not satisfy himself or, alternatively, could not have rationally been satisfied, that the matters the subject of the certificate issued by him were consistent with the terms of those cabin conditions that were required to be complied with before a “construction certificate” was issued, namely, Conditions 23 and 30.
Accordingly, it was alleged that the issuing of the “construction certificate” was in breach of s 109F(1)(a) of the EP&A Act and/or clauses 145 and 146 of the Regulation. These allegations were denied by both the first respondent and Mr Norris.
The relevance of the Certificate, being a “construction certificate” issued pursuant to Part 4A of the EP&A Act, to the Council’s case was that if it was declared invalid, any work done in reliance upon it was invalid whether or not there was a breach of any of the cabin conditions. On the other hand, the relevance of a “construction certificate” to the first respondent was that if it was valid then any work done pursuant to it, such as the installation of the two cabins, could not be in breach of any cabin condition in respect of which Mr Norris had expressed satisfaction that it had been complied with for the purposes of cl 146(c) of the Regulation. Accordingly, so it was submitted, even if there was a breach of any of the specified conditions objectively determined, any such breach was, in effect, trumped by the validity of the “construction certificate” and the failure of the Council to establish that Mr Norris’ satisfaction that the relevant conditions had been complied with was unreasonable in the Wednesbury sense: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
The foregoing was encapsulated by the primary judge in the following paragraphs of her judgment:
“150 As identified at par 146 (and earlier in the judgment), the Council argued that the certifier had breached the same four conditions of consent as the First Respondent (conditions 1, 2, 23 and 30). Under s 80(12) of the EP&A Act a CC once issued is taken to form part of the development consent. Work carried out in reliance on the CC is done under the development consent. It is therefore necessary to determine as a threshold issue whether the CC was validly issued given that the erection of the two cabins in issue was done in reliance on it. If valid I do not consider there can be a separate breach by the First Respondent of conditions 1, 2, 23 and 30 in relation to the work the subject of these proceedings in light of the framework for CCs in the EP&A Act, particularly s 80(12). Accordingly the cabins will have been validly erected and the balance of cabins which are approved under the CC can also proceed (ten in all). The finding that the CC is valid is also relevant to whether there is a breach of condition 41 by the First Respondent. A breach of condition 41 (requiring that a Pt 3A permit be issued before any works commence on site) is only alleged against the First Respondent. If the CC issued by Mr Norris is valid however there cannot be a separate breach of condition 46 by the First Respondent. Depending on my findings, issues may arise for Mr Norris in issuing a CC for the subsequent stages of cabin installation.
…
195I have held the CC was validly issued by Mr Norris and the two cabins authorised to be constructed for stage 1 are validly constructed. As identified in par 150, the work carried out under the CC is done under the development consent. There cannot therefore be a separate breach by the First Respondent of the same conditions of consent which I have found Mr Norris has satisfied in relation to stage 1 of the cabins consent. While the Council argued that there was separately a breach of condition 2 by the First Respondent under the development consent which did not depend on a finding of validity of the CC that cannot be correct given the construction of the consent that I have adopted.”
Much of the primary judge’s judgment was given over to determining the validity of the Certificate issued by Mr Norris. But there was a threshold question as to whether a construction certificate under Part 4A of the EP&A Act was required at all with respect to the installation of the cabins. Such a proposition was foreshadowed by a late amendment made by Mr Norris to his Points of Defence. In response to paragraph 44 of the Council’s FAPOC alleging that the “construction certificate” had been issued in breach of the cabins consent and was invalid, Mr Norris pleaded in paragraph 19 of his Amended Points of Defence, the following:
“In further answer [to paragraph 44], despite Condition 8 of the Development Consent, a construction certificate was not required prior to the erection of cabins. The cabins are not ‘buildings’ as defined by the Environmental Planning & Assessment Act and a construction certificate is required under s 81A for ‘building work’ only.”
The primary judge referred to this possibility when summarising the Council’s submissions, observing (at [92]) that if the argument was correct
“that no building works as defined in s 4 of the EP&A Act are authorised under the cabins consent so that the CC was issued for no valid purpose under the Act or Regulation, then it also could not amend the development consent.”
The reference to amendment of the development consent was in response to a submission on behalf of the first respondent which relied upon s 80(12) of the EP&A Act to the effect that as a construction certificate and any approved plans and specifications issued with respect to that certificate are taken to form part of the relevant development consent, the effect of s 80(12) is that the construction certificate amends the development consent. Of course, if there is no valid construction certificate or one that is not legally required, then s 80(12) has no operative effect.
Her Honour returned to this issue at [152] of her judgment when she observed:
“152I also note for completeness, and the parties agreed, that Mr Norris was not required to certify any building work in terms of the installation of the cabins as these do not constitute ‘building work’ as that term is defined in the EP&A Act. They are moveable dwellings which do not fall within the definition of ‘building’ in that Act (see par 8). I should note that there was brief mention in the Council’s case (par 92) of an argument that the CC had no validity because there was no building work required to be authorised under it so that the responsibility under the cabins consent continued to fall on the First Respondent in any event. Quite where that argument would leave the cabins consent issued by the Council is unclear and was not addressed. As there was virtually no time spent on this issue and I would require further submissions in order to resolve a potentially significant matter about the operation of the EP&A Act in relation to CCs, I will not consider it further as it was not the basis of the case argued before me.”
This issue was raised in this Court during the course of argument on the appeal as it was clear that Part 4A of the EP&A Act, which relates to the issue of construction certificates, applies only, relevantly, to “building work” as defined: namely, any physical activity involved in the erection of a “building”. The latter term is then defined in a manner which excludes a “moveable dwelling” and it was common ground that the cabins fell within that expression.
Although there was some initial resistance from both the Council and the first respondent to the force of this proposition, ultimately each conceded its correctness. The result was that her Honour’s findings with respect to the validity of the Certificate issued by Mr Norris on 20 November 2006 proceeded on a false legal basis and must, therefore, be set aside. It is therefore unnecessary to determine those grounds of appeal which challenged her Honour’s findings as to the validity of the purported construction certificate issued by Mr Norris and accordingly I must proceed upon the basis that any certificate issued by him, not being a construction certificate for the purposes of Part 4A of the EP&A Act, was no more than a certificate that purported to comply with Condition 8 of the cabin conditions. As it was conceded by the Council that the Certificate complied with that condition in that it attached plans detailing the location of all the cabins to be installed in Stage 1 of the development, the relevance of the Certificate falls away.
The relevant principles relating to what, in effect, would disqualify her Honour from further hearing the proceedings were discussed by me, with the agreement of Handley and Ipp JJA, in Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339; see also Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at [70]–[76].
In essence what is relevantly required before an appellate court will direct a hearing by other than the original judicial officer from whom a successful appeal is brought, is that it must appear that the primary judge has expressed views which raise the possibility (real and not remote) that he or she might not bring an impartial mind to the question of the relief, if any, to which the Council is entitled as a consequence of the breaches of the cabin conditions which have been identified. In other words, or perhaps alternatively, one must ask the question: has her Honour, when expressing herself in [192] of her judgment indicated that she may have already pre-judged the exercise of her discretion to grant relief notwithstanding that, although written submissions were made to her by the first respondent and Mr Norris on the issue which she recorded at [115] of her judgment, no such submissions were made on the issue of discretion by the Council, it being agreed by her Honour that the question of relief, if any, should await her Honour’s findings with respect to liability?
In my view the tentative remarks made by her Honour at [192] of her judgment are not such as to attract the principles to which I have referred. Although she refers to evidence that suggests that the Council ought not to be granted on discretionary grounds the primary relief it sought, she did not, in my view, express a view as to whether that evidence would be accepted and was mostly foreshadowing, as the respondent had submitted, that there was an outstanding issue of discretion had she found that there was a breach of the cabin conditions which she confined, in her remarks, to a failure to obtain a Part 3A permit before Mr Norris’ assumed construction certificate was issued.
In the foregoing circumstances I would not accede to the Council’s submission that the proceedings be remitted to the Land and Environment Court to be heard by a judge other than her Honour.
The question of costs
The written submissions of the parties proceeded upon the same basis as that adopted by her Honour, namely, that a construction certificate under Part 4A of the EP&A Act was required before the installation of the cabins. Accordingly, the written submissions of the Council were directed in particular to challenging her Honour’s findings with respect to the validity of the certificate purportedly issued by Mr Norris on 20 November 2006, whereas those of the first and second respondents sought to uphold those findings.
As a construction certificate under Part 4A was not required, it follows that the submissions of all parties generally proceeded on a false assumption. This required the parties to alter the thrust of their oral submissions on the appeal in a manner which was not generally reflected in their written submissions.
It also follows from the fact that her Honour proceeded on a false basis, due to no fault of her own, that Mr Norris should not have been joined as a party to the proceedings. However, he was so joined as the Council’s FAPOC proceeded on the legally false assumption that the construction certificate issued by him on 20 November 2006 was one which was required by Part 4A of the EP&A Act but was invalid. No point was taken in the pleadings that this was not so until paragraph 19 of Mr Norris’ Amended Points of Defence were filed at the commencement of the hearing before the primary judge. However, as her Honour points out at [152] of her judgment the issue so raised was not specifically or adequately addressed.
My tentative view is that there is at least an arguable case that each party should pay their own costs of the proceedings at first instance generally upon the following grounds. First, it was the Council which alleged that Mr Norris’ certificate was invalid, the argument proceeding upon the false assumption that a construction certificate was required under Part 4A of the EP&A Act. Second, the first respondent never raised the question of whether Part 4A was engaged and, in any event, argued successfully before the primary judge that not only was the construction certificate issued by Mr Norris valid, but also as a consequence thereof the installation of the cabins pursuant to the issue of that certificate in effect trumped any breach by the first respondent of the relevant conditions upon which the Council had relied. Third, it was not until just before the commencement of the hearing that Mr Norris raised the issue of the non-engagement of Part 4A, but never, apparently, pursued it as a threshold question which it clearly was.
As to the costs of the appeal, my tentative view is that the first respondent should pay the costs of the Council given that its appeal should be allowed. I have not formed any tentative view with respect to Mr Norris’ costs on the appeal.
I emphasise that the foregoing are tentative views only and subject to any further written submissions which the parties will be at liberty to provide to the Court upon the publication of the Court’s reasons disposing of the appeal. Those views are provided only so the parties can address the issue in a more structured manner.
In the foregoing circumstances it is not appropriate that any formal orders be made at this stage until the Court is in a position to make whatever orders for costs it considers appropriate. It is sufficient for present purposes to simply indicate that in my opinion the appeal should be allowed and that her Honour’s orders made on 24 July 2008 be set aside and the proceedings remitted to the Land and Environment Court for further consideration of the issue of what relief, if any, the Council is entitled to in light of the breaches of the cabin conditions which I have identified.
Accordingly, I would propose that the only order the Court should presently make is to direct the parties to provide any written submissions on the question of the costs of the proceedings to date at first instance and of the appeal within 14 days of the publication of these reasons. The submissions of each party are not to exceed five pages and with 1½ line spacing.
Since writing the above I have now had the benefit of reading in draft the judgment of Young JA. It is appropriate that I take this opportunity to endorse his Honour’s remarks.
YOUNG JA: I agree with Tobias JA. However I wish to add some comments about the proceedings as they affect Mr Norris.
Prayer 6 in the Amended Application – Class 4 of 27 February 2008 was as follows:
“6. A declaration that in issuing Construction Certificate No PC22506 dated 20 November 2006 … the Second Respondent breached s 109F of the Environmental Planning and Assessment Act.”
Probably a breach of s 109F is a criminal offence punishable by a heavy fine under s 126 of the Environmental Planning and Assessment Act 1979.
As a general rule (though there are notable exceptions), courts in their discretion do not make declarations that a person has committed a criminal offence. The cases make it clear that there is jurisdiction to make such a declaration (see eg Sankey v Whitlam (1978) 142 CLR 1, 20). However, time and time again courts have stressed that it is only in exceptional cases that declarations that a person has committed a crime may be made; see eg Crane v Gething [2000] FCA 45; 169 ALR 727, 737; X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630 esp per Kirby J at 658.
One vice in the procedure is that instead of the defendant being able to succeed if the matter is not established beyond all reasonable doubt, he or she can be declared guilty on the balance of probabilities. Instead of the defendant having his or her accuser place all the material on which reliance is placed before considering whether or not to answer by evidence, the defendant is required to answer on affidavit at an early stage of the proceedings.
In the present case, the chances of the court refusing declaratory relief on grounds of unfairness were so high that Mr Norris may well have had prayer 6 struck out as an abuse of process.
I have written the above to guide future cases. In the present case, it would seem no one on either side ever considered such a declaration actually being made, despite the pleading. All the plaintiff wished to establish was that Mr Norris could not have considered himself satisfied that certain preconditions to the issue of a construction certificate had been met.
There is usually no objection to a declaration of such a particular fact even though its establishment might also be an element in a criminal offence.
BERGIN CJ in EQ: I agree with Tobias JA and with the additional comments made by Young JA.
**********
LAST UPDATED:
29 June 2009
63
8
3