Calkovics v The Minister for Local Government and Planning

[1988] NSWLEC 16

Land and Environment Court

of New South Wales

CITATION:

Calkovics v The Minister for Local Government & Planning & Anor [1988] NSWLEC 16

PARTIES:

APPLICANT
Calkovics

FIRST RESPONDENT
The Minister for Local Government & Planning

SECOND REPONDENT
The Council Of The City Of Queanbeyan

FILE NUMBER(S):

40181 of 1988

CORAM:

Stein J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act
Heritage Act

CASES CITED:

Drinan v. Hickey (1982);
Robinson v. Shoalhaven Shire Council (1985) ;
Yadle Investments v. Roads & Traffic Authority (1989) Woolworths v. Bathurst City council (1987);
Church of Scientology v. Woodward (1982);
McInnes v. Wingecarribee Shire Council (1987)

DATES OF HEARING:

DATE OF JUDGMENT:

09/22/1988

LEGAL REPRESENTATIVES:

APPLICANT
Mr. Robertson
RESPONDENT
Mr. Talbot

JUDGMENT:

HIS HONOUR: On 19 September 1989 I dismissed with costs a Notice of Motion brought by the second respondent, the Council of the City of Queanbeyan (the Council). Since I was then in the midst of hearing the application proper I indicated that I would give reasons later.

Later that same day there being admissions made by the respondents of a breach of clause 17 of the Regulation to the Environmental Planning and Assessment Act, and without any opposition by their Counsel, I made a declaration of invalidity of the Queanbeyan Local Environmental Plan No. 54 (the LEP) made by the first respondent, the Minister for Local Government and Planning, on 6 May 1988 and published in the Government Gazette on 20 May 1988.

Having made the declaration I asked Mr. Talbot, who appeared on behalf of the Council, if he still required reasons for the dismissal of the Notice of Motion. He indicated that he did and so I now state my reasons.

Paragraphs 1 and 2 of the Notice of Motion seek orders as follows:-

"1. That the applicant by dint of s.35 of the Environmental Planning and Assessment Act, 1979 is precluded from questioning the validity of LEP 54 Queanbeyan in these proceedings.

2. That the application be dismissed."

On 19 August 1988 Richard Stanley Leigh Jones filed an application seeking a declaration of invalidity of the subject LEP.

Section 35 of the Environmental Planning and Assessment Act provides:-

"The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication in the Gazette."

Therefore, the challenge to the plan by Mr. Jones was commenced in the Court within the 3 months limitation referred to in s.35.

However, on 23 September 1988 Counsel for the applicant, Mr. Robertson, sought an order that Michael Calkovics, for whom he also appeared, be added as an applicant on his own behalf and on behalf of the Jerrabomberra Preservation Society and be substituted as applicant for Mr. Jones. On that date Bignold J. made orders and directions by the consent of the then parties Mr. Jones and the Minister.

Orders 1 and 2 made on 23 September 1988 are as follows:-

"1. Pursuant to Pt. 8 R.8 of the Supreme Court Rules, Michael Calkovics be added as an applicant to these proceedings on his own behalf and on behalf of the Jerrabomberra Preservation Society.

2. Pursuant to Pt. 8 Rules 9 and 11 of the Supreme Court Rules, Michael Calkovics be substituted as the applicant in these proceedings for Richard Stanley Leigh Jones, who shall cease to be a party herein."

On 31 March 1989, on the application of the Council and with the consent of the substituted applicant and the first respondent, the Council was joined in the proceedings as a respondent.

In due course the proceedings were fixed for hearing for 4 days commencing on 18 September 1989. During the hearing on the morning of 18 September Mr. Talbot indicated that he wished to argue that the application should be dismissed because Mr. Calcovics did not become substituted as an applicant until after 3 months had elapsed from the publication of the LEP in the Gazette. I directed that a Notice of Motion be taken out returnable instanter before the Court. This was duly done and on the morning of 19 September I heard the Motion and dismissed it with costs, reserving my reasons until later so that I could continue to hear the substantive application then before the Court.

The Motion is based upon the submission by the Council that Part 8 Rule 11(3) of the Supreme Court rules, adopted by Part VI of the Land and Environment Court Rules, provides that when a party is added pursuant to Rule 8 the date of commencement of the proceedings, so far as concerns the added party, shall be the date of filing of the originating process amended so as to add him as a party or the date of the amendment. Mr. Talbot relies on a decision of Master Allen, as he then was, in Drinan v. Hickey ((1982) 11 NSWLR 744).

Before I deal with this submission it is well to consider two other matters. Firstly, the orders in the Notice of Motion seek to set aside the orders made (with the consent of the then parties) of a Judge of this Court. Pursuant to s.56 of the Land and Environment Court Act a decision of the Court is final and conclusive subject to the provisions for appeal contained in ss.56A, 57 and 58. Mr. Talbot's response to this is to maintain that he is not challenging the orders made by Bignold J., only the effect of them, which in his submission is to make the application statute barred by reason of s.35 of the Environmental Planning and Assessment Act.

In my opinion this submission is an exercise in semantics. The effect of Mr. Talbot's submission is to challenge the jurisdiction of the Court to make the orders it did on 23 September 1988. It seeks to set those orders at naught. In Robinson v. Shoalhaven Shire Council ((1985) 55 LGRA 135) the Court held that it did not have the power (statutory or inherent) to set aside a consent order for costs made by the Registrar. In the absence of any statutory provision the order of the Court was beyond its recall. (See also the authorities cited by Bignold J. in his Judgment in Robinson).

In my opinion the Motion cannot succeed for this reason alone.

However, there is a second basis, apart from the argument concerning the effect of the Supreme Court Rules, which also militates against upholding the Motion. On prior occasions this Court has held that s.35 (and its complementary s.104A) do not preclude all challenges to the validity of environmental planning instruments and consents after the expiry of 3 months of publication.

In Yadle Investments v. Roads & Traffic Authority (Unreported 23 June 1989) I held that s.35 did not preclude a challenge to the validity of an environmental planning instrument after 3 months of its gazettal if the "basis of the challenge is bad faith, manifest jurisdictional error or ultra vires". In Woolworths v. Bathurst City council ((1987) 63 LGRA 55) Cripps J. held that s.104A "would not preclude a challenge on the ground that the Council acted in bad faith". He went on to say that the section may not preclude a challenge where the consent is "manifestly ultra vires or in excess of jurisdiction or the challenge is based on a breach of the rules of natural justice". (See also Church of Scientology v. Woodward ((1982) 154 CLR 25).

The allegations of the applicant in the points of claim which are claimed to lead to invalidity of the LEP are as follows:-

1. A breach of S.54(4) Environmental Planning and Assessment Act and cl. 5 of the Regulation.

2. A breach of s.57 Environmental Planning and Assessment Act in that the environmental study was not an objective study of the subject land.

3. A breach of s.66(1) Environmental Planning and Assessment Act in that no proper notice or public exhibition of the study took place.

4. That the study was so inadequate as not to amount to a study under the Environmental Planning and Assessment Act.

5. That the draft LEP was not prepared having regard to the environmental study.

6. The Minister failed to take into account relevant considerations being:-

(a) the effect upon the landscape and scenic quality of the locality;

(b) the visual significance of the Parliamentary triangle;

(c) the effect of runoff from urban sub-divisional development on streams and creeks including the Jerrabomberra wetlands and Lake Burley Griffin;

(d) the flora, including rare and endangered species, on the land burdened by the said Plan;

(e) the fauna on the said land the necessity of providing fauna corridors so as to preserve the said fauna;

(f) the stability of the said land, including slippage and erosion;

(g) the submissions of objectors and the advice of the National Parks and Wildlife Service;

(h) the activities of the owner of the said land in deliberately destroying rare and endangered flora so as to avoid the exercise of statutory powers to restrict or restrain environmentally destructive development;

(i) the expiry of the Section 136 Order under the Heritage Act within ten days;

(j) the advice of officers of the Department of Environment and Planning and the National Parks and Wildlife Service that the said Study was inadequate."

7. The Minister, in making his decision, took into account irrelevant considerations, being:-

(a) the relationship between the controller of the owner of the said land, Alexander Brinkmeyer, and the Liberal Party of New South Wales and the Premier of New South Wales;

(b) the private submissions of the said owner at a secret meeting on 20 April 1988 in the absence of the said Council and without affording a similar opportunity to objectors;

(c) incorrect advice that a Section 136 Order under the Heritage Act had been issued "over the most important part of the site";

(d)incorrect advice that the said Plan was not inconsistent with any Section 117 direction or Section 70 determination under the said Act.

8. The Minister "acted in breach of the rules of natural justice by secretly meeting with the said owner on 20 April, 1988 to consider objections to the making of the said Plan without affording the said Council or objectors including the applicant an opportunity to make submissions".

9. That the Plan was not made in accordance with the requirements of Regulation 17 of the Environmental Planning and Assessment Act Regulation in that the LEP map signed by the Minister did not describe the land to which it applied and did not indicate those parts of the land to which it differently applied in a distinctive manner.

It was on the basis of the respondents' admission of the breach of clause 17 of the Regulation that I made the declaration of invalidity, Counsel for both respondents accepting that compliance was mandatory and no discretionary considerations would lead to a declaration not being made.

At the direction of the Registrar of the Court the applicant filed a document on 31 August 1989 entitled "Applicant's proposed agreed statement of facts". This was a detailed 15 page document setting out the applicant's case. The Points of Claim and the applicant's document, just referred to, make it apparent that he was challenging the validity of the plan on a variety of bases including bad faith and a breach of the rules of natural justice, not simply a failure to comply with the requirements of the Environmental Planning and Assessment Act and Regulation.

In this circumstance, even if Mr. Calcovics be out of time, he is not in my opinion precluded by s.35 from pursuing the challenge.

I now turn to Mr. Talbot's submission on the effect of Part 8 Rule 11(3) on the order made adding Mr. Calcovics and on the application itself. The first matter to note is what occurred on 23 September 1988 was that Mr. Calcovics was substituted as an applicant in lieu of Mr. Jones. According to Ritchie's Supreme Court Procedure N.S.W. Rules 8 and 9, read in conjunction, give power to substitute plaintiffs.

Rule 11(1) relevantly provides:-

"Without limiting the generality of the powers of the Court under rules 8, 9 and 10, orders under those rules for the further conduct of the proceedings may include orders relating to -

....

(d) substitution of one party for another party or a former party."

Subrule (2) of Rule 11 provides:-

"Where the Court orders that a party be substituted for another party or a former party, all things done in the proceedings before the making of the order shall, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old, but entry of appearance by the old party shall not dispense with entry of appearance by the new."

Subrule (3) of Rule 11 commences with the words "Subject to subrule (2)".

In my opinion it is patently clear that subrule (2) governs the present situation and provides that when a party is substituted for another party "all things done in the proceedings before the making of the order shall... have effect in relation to the new party as those things had effect in relation to the old". Mr. Talbot's submission on subrule (3) overlooks subrule (2) and its primacy over subrule (3) by reason of its content and the introductory words to subrule (3).

In passing I note the Court of Appeal decision in McInnes v. Wingecarribee Shire Council ((1987) 10 NSWLR 660). Although this case was determined having regard to Pt. 10 of the Land and Environment Court Rules, Priestly J.A. remarked:-

"Having reached the conclusion that the Land and Environment Court did have power under Pt 10 of its rules to grant the amendments sought, it is unnecessary to consider a further submission of the appellants based on Pt 6 of the rules, which by reference incorporates Pt 8 (inter alia) of the Supreme Court Rules. Rule 8 of Pt 8, in particular, supports an argument very similar to that which I have accepted in regard to Pt 10 of the Land and Environment Court rules."

In my opinion the authority of Drinan v. Hickey is not relevant to the instant situation. It concerned the adding of defendants and subrule (3) of Rule 11 was clearly relevant. It was not a case which involved the substitution of a party and therefore subrule (2) of the same rule did not come into play.

Finally, there are the clear words of s.35 itself. The validity of a plan shall not be questioned in any legal proceedings except those commenced "by any person" within the 3 months time limitation. Mr. Jones did commence the proceedings challenging the validity of the plan within the time limit. The fact that Mr. Calcovics was later substituted as applicant for Mr. Jones and Mr. Jones ceased to be a party does not detract from the fact that the proceedings were commenced "by any person" within 3 months of the gazettal.

For all these reasons the Notice of Motion was dismissed.