Betohuwisa Investments Pty Ltd v Kiama Municipal Council

[2010] NSWLEC 223

Reported Decision: 177 LGERA 312
[2011] ALMD 777

Land and Environment Court

of New South Wales

CITATION:

Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Betohuwisa Investments Pty Ltd

RESPONDENT
Kiama Municipal Council

FILE NUMBER(S):

10215 of 2010

CORAM:

Craig J

KEY ISSUES:

PRACTICE AND PROCEDURE :- appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1997 against Council’s refusal of development consent – appellant different and unrelated entity to the development applicant – development applicant assigned property to appellant following refusal of development application – appeal then lodged by appellant - dismissal of the appeal sought on ground that appellant was not an “applicant” within the meaning of s 97– appellant not entitled to appeal pursuant to s 97.

WORDS AND PHRASES:- whether the appellant was an “applicant” within the meaning of s 97– “applicant” not defined in Act – no distinction made between applicant for purpose of making a development application and applicant for purpose of appeal – “applicant” not confined to person or entity who signed the form of development application – extended to principal or principals of person or entity on whose behalf the application was made – did not extend to appellant by reason of transfer of rights and assets in relation to the land and business from development applicant to appellant – statutory language read in context intractable in requiring that the “applicant” entitled to institute appeal be person or entity who lodged the development application.

LEGISLATION CITED:

Corporations Act 2001 (Cth)
Environmental Planning and Assessment Act 1979
Environment Planning and Assessment Regulation 2000
Integrated Planning Act 1997 (Qld) (now repealed)
Real Property Act 1900
Uniform Civil Procedure Rules

CASES CITED:

Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470
Miller v Sutherland Shire Council [2008] NSWLEC 158
Spencer v Commonwealth of Australia [2010] HCA 28
Sushames v Pine Rivers Council [2006] QCA 171; (2007) 1 Qd R 382
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198

DATES OF HEARING:

10 May 2010

 
DATE OF JUDGMENT: 

19 November 2010

LEGAL REPRESENTATIVES:

APPLICANT
J B Maston (Barrister)
SOLICITORS
Colbron & Associates Lawyers

RESPONDENT
M D Seymour (Barrister)
SOLICITORS
RMB Lawyers with Kearns & Garside

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

19 November 2010

10215 of 2010 BETOHUWISA INVESTMENTS PTY LTD v KIAMA MUNICIPAL COUNCIL

JUDGMENT

1 HIS HONOUR: On the south-western arm of Robertson Basin in Kiama Harbour stands a heritage building known as the “Cargo Shed”. It is a building that has been modified over the years to accommodate the various uses to which it has been put. Presently, it accommodates a restaurant known as Cargo’s Restaurant, together with an associated take-away seafood facility (jointly referred to in this Judgment as “Cargo’s Restaurant”).

2 The north-eastern face of the Cargo Shed stands close to the water’s edge of the Harbour. It is surrounded on the remaining three sides by bitumen pavement used for car parking.

3 On 28 May 2009, Old Kiama Wharf Company Pty Ltd (OKW Company) sought development consent from Kiama Municipal Council (the Council) to effect improvements to and upon the bitumen paved car parking area surrounding the Cargo Shed. OKW Company was the company then conducting Cargo’s Restaurant in that building.

4 The development proposal involved the removal of car parking from that area, resurfacing of the pavement, the erection of shade structures, the provision of outdoor seating and the use of the area for outdoor dining. The development application was refused by the Council on 21 July 2009.

5 An appeal to this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) from the Council’s determination was lodged on 26 March 2010. The Class 1 application was instituted by Betohuwisa Investments Pty Ltd (Betohuwisa) as applicant in the proceedings. Betohuwisa is not a company that is related to OKW Company, there being neither common directors nor common shareholders.

Competency of the proceedings is challenged

6 By notice of motion, the Council seeks an order that the Class 1 application filed by Betohuwisa be dismissed. Dismissal of the proceedings is sought pursuant to Uniform Civil Procedure Rule (UCPR) 12.11 or alternatively UCPR 13.4. In essence, the Council contends that Betohuwisa is not an “applicant” within the meaning of s 97 of the EPA Act, with the consequence that it has no entitlement to bring the proceedings it has instituted.

7 Betohuwisa does not assert that it has any general law entitlement to institute the proceedings that it has commenced. Rather, it asserts that by reason of the transactions that have taken place between it and OKW Company, it qualifies as an “applicant”, within the meaning of s 97 of the EPA Act.

8 In order to address the arguments advanced by the parties, it is first necessary to record a number of background facts, including the transactions that took place between Betohuwisa and OKW Company.

The Cargo Shed is leased

9 The land upon which the Cargo Shed stands is land held under the provisions of the Real Property Act 1900 and is owned by the State of New South Wales. It comprises lots 276 and 277 in Deposited Plan 728098. Those two lots comprise part of a larger area of State owned land at Kiama, being the whole of the reserve known as Blowhole Point.

10 On 12 June 2008, lots 276 and 277 were leased by the State to OKW Company for a term of 20 years commencing on that date. That lease came to be registered as dealing number AE117112 (the Lease). The use of lots 276 and 277 which the Lease authorised was for “Business Purposes”: cl 31.

11 Schedule 2 to the Lease contains special conditions. Clause 97, which is contained within Schedule 2, requires that on or before 12 June 2018:

“ … the Lessee shall, at its expense and in a proper and workmanlike manner, carry out the Resurfacing Works and in consideration thereof, the Lessor, as Licensor, shall within two months of the completion of the Resurfacing Works, grant to the Lessee, as Licensee, the Additional Licence … ”.

12 The expression “Resurfacing Works” is defined in cl 96 as meaning the resurfacing of the bitumen car parking area immediately surrounding the Cargo Shed by providing “alternate squares of bitumen and squares of bluestone”, as specified both by the Council and by a Plan of Management for Kiama Harbour and Headland, prepared in November 2002. The expression “Additional Licence Area” is also defined in cl 96 as being the area required to be the subject of Resurfacing Works “from which vehicle entry will be excluded to create an outdoor area”.

13 The third expression of relevance defined in cl 96 is “Additional Licence”, as that expression is used in cl 97. The expression is defined to mean a licence to use the Additional Licensed Area:

“for the purposes of extension of the areas of operation and enjoyment of the Lease Uses by the Lessee by the provision of outdoor table and seating facilities as envisaged by the Kiama Harbour and Headland Plan of Management November 2002”.

14 In summary, the combined effect of cll 96 and 97 of Schedule 2 is to require the lessee, within 10 years, to carry out improvement works in the existing car park area adjacent to the Cargo Shed. Upon completion of those works, the lessee will be granted a licence to use that area as an outdoor seating and dining area associated with the restaurant facility presently being conducted within the Cargo Shed itself. This outdoor area is not located within the boundaries of lots 276 and 277.

15 Clause 97 provides an incentive for the lessee to carry out the “Resurfacing Works”. It does this in two ways. First, it expressly authorises the carrying out of those works “earlier in time” than 12 June 2018, clearly intending that as soon as the work is completed the lessee will have the benefit of the “Additional License”. Secondly, the clause provides that failure to carry out the works within the time stipulated “will result in the Minister having the right to terminate the Lease at the end of the 10 year term.”

16 In an early endeavour to meet the requirements of cl 97 of the Lease, OKW Company lodged its development application with the Council on 28 May 2009. That application described the land to which it related as being land adjacent to lots 276 and 277 in DP 728098. It clearly related to the present car park area adjacent to the Cargo Shed or, in the language of the Lease, it related to the “Additional Licence Area”.

17 The development application form was accompanied by an authority signed on behalf of the Department of Lands, being the Department responsible to provide owner’s consent on behalf of the State. The authority form signed by the Minister’s delegate indicates, in terms, that consent was given to the lodging of the development application by OKW Company.

18 It was the development application so lodged that was refused by the Council on 21 July 2009.

Events following refusal of the development application

19 At all relevant times, Christina Jackman was the sole director and secretary of OKW Company. She has sworn an affidavit indicating that the Company was dissatisfied with the Council’s refusal of the development application. She says that as sole director of the Company, she determined that it would appeal to this Court by reason of that dissatisfaction. However, in the events that ensued, such a course was not taken by OKW Company.

20 On 31 July 2009, OKW Company executed a Deed of Charge in favour of Betohuwisa. The Deed was executed in order to secure a loan of $50,000 made to it by Betohuwisa. By that Deed, OKW Company charged with payment to the Mortgagee of the loan sum –

“ … the whole of the Mortgagor’s property undertaking and assets of whatever nature and wherever situated both present and future and real and personal including its goodwill, plant and equipment, book debts and other choices [sic] in action … ”.

21 The Deed of Charge created a fixed and floating charge over the property of OKW Company, including leasehold property. The charge was registered in the Australian Register of Company Charges in accordance with Ch 2K.2 of the Corporations Act 2001 (Cth).

22 At the time of executing the deed of charge, OKW Company also granted Betohuwisa an option to purchase the business conducted by it in the Cargo Shed. This option included the right to take a transfer of the Lease.

23 The option granted to Betohuwisa was exercised on 9 September 2009, as a result of which a contract for the sale of business was entered into between the two companies on that date. The contract provided that, subject to the consent of the State, the Lease would be transferred to Betohuwisa. Consent to the transfer of the Lease was notified by the Crown Lands Division of the Land and Property Management Authority on 27 November 2009 and a transfer of the Lease to Betohuwisa was signed by OKW Company on 30 November 2009. The signing of that transfer coincided with the settlement of the sale of the business conducted in the Cargo Shed. Betohuwisa has conducted the business since that time.

24 On 27 January 2010, a resolution for the voluntary winding up of OKW Company was passed and a liquidator appointed.

25 As I earlier recorded, the Class 1 application to this Court was filed on 26 March 2010. Under the heading in the form of application providing details of the parties, the applicant is described in the following way:

“BETOHUWISA INVESTMENTS PTY. LIMITED (as successor in title, holder of Crown lease No. 406654 and assignee of all rights from Old Kiama Wharf Company Pty Ltd (ACN 096 227 477)”.

26 That description succinctly summarises the factual basis upon which Betohuwisa asserts its entitlement to have commenced and to maintain the present proceedings.

The Statutory Provisions

27 The entitlement to make a development application is governed by s 78A of the EPA Act. Subsection (1) of that section provides that -

“(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.”

28 Part 6 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) prescribes the procedures for the making of a development application. Clause 49, which is within that Part, relevantly provides as follows:

“ 49 Who can make a development application?

(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.
…
(3) Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.”

29 Clause 50(1) prescribes how a development application is to be made. Among other matters, it requires that a development application contain the information specified in Pt 1 of Sch 1 to the Regulation. The information required by that Schedule includes “the name and address of the applicant”.

30 These provisions, addressing the making of a development application, clearly require that a single legal entity be identified as the entity with which the consent authority must deal when processing the application. That entity must either be the owner of the land that is the subject of the development application or one acting with the consent of that owner.

31 As the statutory provisions addressing the immediate consequence of the consent authority’s determination of a development application make clear, the identification of that single entity is important. It is the applicant who is to be notified of the consent authority’s determination: s 81(1)(a) of the EPA Act. Further, when the consent authority is a council, it is the applicant who is able to seek a review of the determination of its development application: s 82A(1) of the EPA Act.

32 The provisions of the EPA Act describe in different ways those persons or entities entitled to make applications of a kind otherwise than for development consent. In the case of an application to modify a consent, the entitlement to apply is given to “the applicant or any other person entitled to act on a consent granted by the consent authority”: s 96(1). An application for a construction certificate or occupation certificate under Pt 4A of the EPA Act can only be made by the “person having the benefit of a development consent” (s 109E(1) of the Act and cll 139 and 149 of the Regulation). By way of further contrast, an application for a subdivision certificate under the same Part can only be made by the owner of the land to which the application relates or by any other person with the consent in writing of that owner (cl 157 of the Regulation).

33 Section 97 of the EPA Act relevantly provides as follows:

97 Appeal by an applicant – development applications
(1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application (including a determination on a review under section 82A) may appeal to the Court within 12 months after:

(a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application, or

(b) the date on which that application is taken to have been determined under section 82 (1).

34 Like the position that pertains under s 97(1), in each of the examples that I have given of other applications able to be made under the EPA Act, a right of appeal to the Court is afforded to the applicant. While that description of the person entitled to appeal as an “applicant” is understandable, what remains important for present purposes is the statutory entitlement of those entitled to make the initial application to the consent authority. It is the diversity of description upon which focus is necessary. Yet that description must inform the determination as to who it is that can properly be categorised as the applicant for the purpose of instituting an appeal.

35 Thus, in the context of the present matter, the person or entity entitled to appeal is that person or entity who made the application to the Council, and, as in the case of OKW Company, did so with the consent of the owner of the land. Ultimately, the question to be addressed is whether Betohuwisa meets the description of the applicant under s 97, thereby rendering its present appeal competent.

Discussion

36 Although it may seem trite, it is nonetheless pertinent to observe that the process of making and assessing a development application, together with the process of appeal from the determination of a consent authority, are all creatures of the EPA Act (cf Sushames v Pine Rivers Council [2006] QCA 171; (2007) 1 Qd R 382 per Keane JA at [14]). This observation is made to emphasise the fact that close attention to the statutory provisions is imperative in order to determine the entitlement of Betohuwisa to maintain its present appeal.

37 The term “applicant” is not defined in the EPA Act. Its meaning is therefore to be gleaned from its context within the Act (Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12] – [13] and the cases there cited). That context includes taking cognisance of the different bases upon which a person is qualified to make an application under the EPA Act.

38 Had the legislature intended that a broad category of persons, having an “interest” in a development application, should be entitled to appeal in the event of dissatisfaction with the decision made by a consent authority, it would have been a relatively simple matter so to provide. One means of achieving a relatively broad description is reflected in the Integrated Planning Act 1997 (Qld) (now repealed). The Integrated Planning Act made provision in Chapter 3 for the making of development applications. Chapter 4 of that Act made provision for appeals from the decision of a consent authority to the Planning and Environment Court. The term “applicant” is defined in a Schedule to that Act as follows:

“ applicant –
(a) for chapter 3, means the applicant for a development application; or
(b) for a development application mentioned in chapter 4, includes the person in whom the benefit of the application vests.”

A distinction between the applicant for the purpose of making a development application and applicant for the purpose of appeal is maintained in the current Queensland legislation: Sustainable Planning Act 2009 (Qld), Sch 3.

39 Consideration of the defined term “applicant” in the Integrated PlanningAct (Qld) was the subject of consideration in Sushames v Pine Rivers Shire Council. Following the passage from the leading judgment of Keane JA that I have earlier cited, his Honour continued:

[15] It should also be emphasised that an application for a development approval contemplated by the IPA is one coherent proposal, which is put forward as such and is to be assessed as such. The application is, necessarily, directed by an applicant. … . Importantly, the provisions of the IPA do not envisage a multiplicity of such “applicants” at any one time. The IPA does not envisage that an application to be assessed may be advanced or modified or withdrawn by several divergent voices. That situation would be intolerable for an assessment manager.”

40 While acknowledging the caution that must necessarily be exercised when seeking to interpret the provision of one statute by reference to another, the observations of Keane JA are, with respect, apposite to consideration of the scheme for the making of development applications and appeals from determinations under the EPA Act. The language of cl 49 identifying the person or entity who is qualified to be an applicant and the statutory provisions to which I have referred dealing with the immediate consequences of the consent authority of determination, render the observations of Keane JA to be of present relevance.

41 While acknowledging that Betohuwisa was not the entity that submitted the development application on 28 May 2009, it submits that it is, nonetheless, an applicant for the purpose of s 97 of the EPA Act. An applicant for the purpose of that section, so it is submitted, includes not only the person or identity nominated in the development application form lodged with a consent authority, but -

“those persons so closely related to him as to be regarded as the privies of the applicant such as agents, mortgagees, persons to whom the applicant has divested all conceivable rights in the property including the right to develop it.”

42 The Council accepts, in my view correctly, that an applicant for the purpose of s 97 of the EPA Act is not confined to the person or entity who signed the form of development application lodged with a consent authority. However, it submits that the class of persons to whom the broader notion of “applicant” extends is the principal or principals of the person or entity on whose behalf the application is made. Thus, where a development application is lodged by a town planner, architect, engineer or construction company with no beneficial interest in the overall development other than receipt of a fee for service or work undertaken, the Council recognises that if its determination of a development application is one that leads to dissatisfaction with the decision, the principal of the consultant applicant could appropriately lodge an appeal pursuant to s 97. The lodging of development applications with Councils by agents of the kind that I have described is not uncommon.

43 Substitution of a principal for an agent who has lodged a development application has been sanctioned by this Court (Miller v Sutherland Shire Council [2008] NSWLEC 158 at [20]. As the actions of an agent, acting within the scope of that agent’s authority, are generally taken to be the actions of the principal, I see no reason why the principal should not be entitled to commence an appeal under s 97, notwithstanding that it was the agent of that principal who lodged the relevant development application with a consent authority.

44 Principles of a different kind seem to me to apply in the case of other “privies”, as Betohuwisa has sought to describe them. If, for example, the entitlement to commence an appeal from a council extended to a mortgagee who was not in possession of the mortgage property, problems potentially arise. In such a circumstance, there is the possibility of more than one person or entity who would qualify as an applicant, if the broad “privies” description of qualified persons advanced on behalf of the applicant is correct. There would be the potential for both the person or entity seeking development consent, as well as the mortgagee to be “an applicant” under s 97. The response of each of them to the Council’s determination of the development application may well be different. A mortgagee is not ordinarily the agent of the mortgagor and, in particular, the acts of the mortgagee are not, in the context of agency law, ordinarily taken to be the acts of the mortgagor.

45 I have earlier made reference to the judgment of Keane JA in Sushames v Pine Rivers Shire Council in which the two definitions of “applicant” are discussed. It will be remembered that for the purpose of appeals (“chapter 4”) the definition is extended to include “the person in whom the benefit of the application vests.” In the context of that extended definition, Keane JA adverted to the confining of an applicant to a single entity in the following passage from that case (at [15]):

“When the IPA speaks of ‘the applicant’ as ‘the person in whom the benefit of the application vests’, it is referring to the person or group who, at the time of the appeal, is exclusively entitled to control the application as the person with the beneficial interest in the application for the development permit.” (Original emphasis.)

46 His Honour then proceeded in the passage that I have earlier quoted at [39]. If it can properly be said in respect of the extended definition contained in the Queensland legislation that it does not envisage that an appeal may be advanced “by several divergent voices”, so much the less is it likely that the term “applicant”, as used in s 97 of the EPA Act is appropriately interpreted to include a range of “privies” for which Betohuwisa contends.

47 Betohuwisa further submits that whatever may be the limits upon the class of persons comprehended by the term applicant, as used in s 97 of the EPA Act, the term is apt to be applied to it. Support for the submission is said to be found in the following facts and circumstances:

(i) it is the assignee of the leasehold interest in Lots 276 and 277, formerly held by OKW Company;
(ii) that assignment carried with it the benefit of the promised licence for the “Additional Licence Area” upon completion of the “Resurfacing Works” in accordance with cl 97 of the Lease;
(iii) it was that area and those works which were the subject of OKW Company’s development application;
(iv) it contracted to acquire the business conducted in the Cargo Shed by Betohuwisa in accordance with the contract for sale of business dated 9 September 2009, that sale including the “goodwill, intellectual and industrial property, licences (and) permits” of or held by OKW Company;
(v) it assumed ownership of that business upon completion of that contract which occurred on 30 November 2009;
(vi) in accordance with the Deed of Charge dated 31 July 2009, Betohuwisa had the benefit of a charge over the property and assets of OKW Company which included any chose in action to which the Company was entitled at that time;
(vii) in consequence of these matters, so Betohuwisa argues, it acquired the right of OKW Company to appeal from the Council’s refusal of the development application that is dated 21 July 2009. Betohuwisa further contends that if the statutory provision is interpreted contrary to its submission, the result would be a triumph of form over substance.

48 While, in principle, the form/substance dichotomy may sometimes be a useful tool by which to confirm the interpretation of a statutory provision, it is not a tool to be utilised so as to elide consideration of the statutory text, its context and its purpose in the first instance. Consideration of the matters latterly referred to are fundamental to the proper interpretation of any statutory provision (Wilson v State Rail Authority of New South Wales at [12]). No matter how desirable an outcome of “substance” may seem, the statutory language of a given statute, properly construed, may be intractable in requiring adherence to “form”.

49 This, so it seems to me, is such a case. Where the EPA Act provides an entitlement to take any step consequent upon the lodgement of a development application, it identifies the person able to take that step. In the case of a development application that has been refused, it is the applicant for that consent who is entitled to appeal. Reference to “the applicant” in s 97 is clearly a reference to the person who made the application pursuant to s 78A in accordance with the Regulation, as the latter section requires. As I have earlier recorded, a different provision is made where modification of a consent is sought. Had the legislature intended to confer a right of appeal upon a successor in title to the original applicant, following determination to refuse a development application, or a person otherwise having the “benefit” of the development application, it would have been a simple matter for the legislature so to provide. As earlier explained, the provisions of the Integrated Planning Act (Qld) provides an appropriate example by which such an intention might be made apparent.

50 Apart from the absence of any expressed right to appeal by a person who, subsequent to refusal of a development application, acquires “the benefit” of that application, there are contextual considerations that favour the limitation of the right to the original applicant or that applicant’s principal at the time of which the application was made. By s 78A(1) the right to make an application is expressed to be subject to the Regulation. The relevant terms of the Regulation, earlier recited, make the personal nature of the application clear.

51 Secondly, prior to the determination of the application, the applicant may seek to amend it (cl 55 of the Regulation). In the event of any assignment by the original applicant of an interest in the application prior to its determination, cl 55 of the Regulation provides a mechanism by which substitution can be achieved (Miller v Sutherland Shire Council at [17] and [20]).

52 Thirdly, the potentially valuable “right” consequent upon the grant of development consent is recognised in the EPA Act as a right extending beyond the original applicant for consent. That recognition is manifest, for example, in the provisions of s 96 of the EPA Act, addressing the power of modification of a development consent. In contrast, refusal of a development application creates no “right” in the same sense. Refusal of an application results only in an entitlement to have the Court exercise its administrative review function by determining the same development application for itself. Nothing in the Act prevents the assignee from lodging the identical application with the consent authority for the same purpose so that no “right” is lost by denying to that post-determination assignee the entitlement to appeal.

53 In making the observations that I have in the preceding paragraph, I do not overlook the fact that refusal of a development application is not the only basis upon which an appeal pursuant to s 97 of the EPA Act may be instituted. An applicant for development consent may be “dissatisfied with the determination of a consent authority” by reason of a condition that has been imposed upon the grant of development consent, thereby founding a basis for appeal. However, the potentially valuable “right” created by the grant of consent ceases to be an effective “right” upon the institution of an appeal and remains ineffective unless and until the appeal is upheld: subsections (2) and (3) of s 83, EPA Act.

54 Once again it must be observed that had the legislature intended to extend the right of appeal provided by s 97 to a person entitled to act on a development consent that has been granted, it could easily have done so in terms similar to those found in s 96(1). The fact that it did not do so supports my opinion that the right to appeal afforded by s 97 is restricted to the “person” making the development application or, if made in an agency capacity, then that person’s principal.

Significance of transactions between Betohuwisa and OKW Company

55 I have set out in summary form at [47] the various transactions upon which Betohuwisa relies in order to sustain its submission that it is an applicant within the meaning of s 97 of the EPA Act. It submits that upon the refusal of the development application in question, s 97 created in OKW Company a statutory right of action. This, so it was submitted, was significant because it was a “right” assignable to Betohuwisa. The transactions to which Betohuwisa makes reference amply demonstrate, so the submission runs, that the “right of action” was effectively assigned to Betohuwisa.

56 As for the contract pertaining to the sale of business, Betohuwisa adds that it had two consequences of relevance. The first is that the intellectual property in OKW Company’s development application passed to Betohuwisa on settlement. Secondly it is said that OKW Company was obliged to take all reasonable steps to facilitate the sale of its property to Betohuwisa which included the right to bring an appeal pursuant to s 97.

57 It seems to me that there are two responses to Betohuwisa’s reliance upon these matters that do not support its submission. First, the fact that OKW Company’s intellectual property passed upon settlement to Betohuwisa did not result in the assignment of the asserted “right” as that, of itself, would not seem to me to qualify as intellectual property. In principle, the right to the design reflected in the plans submitted with the development application would be intellectual property but not the entitlement to appeal. Secondly, the right to have OKW Company do all things that ought to be done in order to “perfect” the sale may well have included a right to require OKW Company to appeal in accordance with s 97 so as to engage the jurisdiction of the Court. However, the contract did not, in terms, entitle Betohuwisa to do all things that otherwise only OKW Company was empowered to do.

58 Reliance by Betohuwisa upon the provisions of the Deed of Charge entered into on 31 July 2009 are, in my opinion, misplaced. Those provisions do not support the submission that the statutory right of action for which it contends was effective to assign the “right” to it. By clause 2.1 of the Deed, choses in action were charged with payment of the debt secured by that Deed. The charging clause did not, in terms, amount to an assignment such that Betohuwisa was entitled, in its own name, to then enforce by action that chose in action. In the event of default, the right of Betohuwisa was to appoint a receiver of the property of OKW Company; such receiver, when exercising powers under the Deed, including taking possession of any property, did so as agent of OKW Company, not Betohuwisa (cl 7.2).

59 Betohuwisa relied upon an attornment clause in the Deed, namely cl 10.1. By that clause Betohuwisa was appointed as the attorney of OKW Company “to do anything in relation to the property and assets charged by this security”. However, that right was, by dint of cl 10.1(c), exercisable if the property charged is proposed to be the subject of dealing “which will or may have a material adverse effect” upon the ability of OKW Company to perform its obligations under the Deed. Objectively judged, I would not have thought that the lodging of an appeal in accordance with s 97 fell within the attornment power created in those terms.

60 I was initially attracted by arguments directed to the assignability of the “right of action” said to be created by s 97 of the EPA Act and whether it constituted a chose in action which had been effectively assigned to Betohuwisa. Ultimately, these arguments cannot prevail over the proper interpretation of s 97 itself, informed by its context in the scheme for review on appeals within the EPA Act. For that reason, it is unnecessary to determine whether, in the present circumstances, there was a chose in action created by the “right” to appeal that was assignable (cf Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124 per Brennan CJ, Gaudron and McHugh JJ at 133).

61 Betohuwisa further submits that the EPA Act is concerned with the use of land as a topographical entity and not with the regulation of private rights of ownership (North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470 at 481). Thus, a development consent operates in rem for the benefit of owners or occupiers of the land at any point in time (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [23]). In consequence, it was submitted, consistent with this approach to the operation of a development consent, that the legislation would not have intended the right to appeal created by s 97 to be confined to the original applicant for development consent.

62 Betohuwisa further argued that the purpose of nominating “the applicant” as the person or entity entitled to appeal was to make clear that an objector to the application had no right of appeal. That right was confined to the original applicant or “the privies” of that applicant in the broad manner earlier described.

63 I am unable to accept Betohuwisa’s submissions in this regard. The right created by the grant of a development consent is not to be equated with or applied to the entitlement to make an application for development consent or to appeal from the determination of that application by a consent authority. The institution of an appeal does no more than enliven the jurisdiction of the Court to exercise anew the planning discretion which the consent authority exercised. Moreover, it must do so on the basis of both fact and law as each applies to the development in contemplation at the time of determining the appeal. As the Council submitted, the statutory provisions pertaining to the making of a development application and institution of an appeal are concerned with process.

64 There are two further matters that, to my mind, speak against the thrust of Betohuwisa’s submissions. First, as I have earlier indicated, no provision of the EPA Act nor any principle of law prevents Betohuwisa from lodging a development application with the Council, seeking development consent for the very same development that was proposed by OKW Company in its development application. Thus, the interpretation of s 97 which I consider appropriate does not deny any substantive right of Betohuwisa in relation to its leasehold or business interest in the Cargo Shed.

65 Secondly, a distinction needs to be drawn between the entitlement to institute an appeal pursuant to s 97 and the entitlement in legal proceedings, once commenced, to seek the addition or substitution of parties. Clearly enough, once proceedings have been instituted then, on proper cause being shown, a successor in title, for example, may well have a proper basis upon which to apply for joinder in the proceedings and, in effect, to take over the conduct of those proceedings. However, the capacity of the Court to adjust its processes in accordance with rules pertaining to the conduct of litigation cannot be used to inform the proper interpretation of a statutory provision identifying the person entitled to institute proceedings for administrative merit review.

66 There is one further argument advanced by Betohuwisa that should be noticed. It submitted that as the motion filed by the Council, in effect, sought summary dismissal of its application, the principles applicable to proceedings seeking an order of that kind should be applied. Betohuwisa submitted that as it was “reasonably arguable” that it was entitled to commence the appeal proceedings that it did, the present procedure was inappropriate to secure the dismissal of those proceedings.

67 I do not accept that the principles cautioning against summary dismissal are presently applicable. The question posed for present consideration is essentially jurisdictional: in the events that happened subsequent to the Council’s refusal of the development application lodged by OKW Company, is Betohuwisa an “applicant” within the meaning of s 97 of the EPA Act? No consideration of merits and assessment of the strength of Betohuwisa’s case in the appeal is involved (cp Spencer v Commonwealth of Australia [2010] HCA 28. Although the answer to the question may not be easy, the determination of Betohuwisa’s standing to bring the proceedings must be answered and it must be answered as a preliminary and discrete matter. That is the task undertaken in this judgment.

68 Finally, it was not submitted on behalf of Betohuwisa that there was further evidence or argument that, on a final hearing, would be adduced or advanced in support of its argument on the discrete question tendered by the Council’s notice of motion. The opportunity of a short adjournment was offered to Betohuwisa in the event that further consideration of its position was required but that offer was declined.

69 The power of the Court to entertain the Council’s notice of motion is properly founded in the implied power of the Court to control its own process by ensuring that the jurisdiction of the Court is invoked upon a proper statutory foundation. UCPR 12.11 would also seem to ground the Council’s notice of motion.

Conclusion

70 Interpreted in context, the provisions of s 97 of the EPA Act are intractable in requiring that the “applicant” entitled to institute an appeal to the Court be the person or entity who lodged the development application with the consent authority. This has the consequence that Betohuwisa was not entitled to commence the present proceedings.

71 The Council’s notice of motion seeks an order that the appeal be dismissed on the basis that Betohuwisa was not entitled to institute the present proceedings. In light of my conclusion, this would appear to be the appropriate result. However, Betohuwisa requested that if I determined that it was not entitled to have commenced the proceedings, I should refrain from dismissing them in order to afford it the opportunity to consider another application which, it suggested, may sustain its proceedings. Although I do not presently understand the basis upon which such a course is proposed, I am prepared to accede to its request.

72 The Council also seeks an order that Betohuwisa pays its costs of its notice of motion. Given that these proceedings are brought in Class 1 of the Court’s jurisdiction, an order for costs is not to be made unless the making of such an order “is fair and reasonable in the circumstances”: LECR 3.7(2). As the question of costs on this basis has not been argued, I propose to refrain from making an order at this point of time but to reserve to the parties the right to argue costs.

73 The formal orders that I make at this time are as follows:

1. Stand over the proceedings for mention before me at 9:30 am on 3 December, 2010.

2. Any notice of motion by the applicant seeking to preserve the present proceedings is to be filed and served by 26 November 2010 and made returnable before me on 3 December 2010.
3. In the event that the parties cannot agree upon costs, the question of costs may be argued before me at 9:30 am on 3 December 2010.
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25/11/2010 - Incorrect spelling "revue" to "review" - Paragraph(s) 65