Chambers v Maclean Shire Council

[2003] NSWCA 100

Reported Decision: (2003) 126 LGERA 7
57 NSWLR 152

Court of Appeal

CITATION:	Chambers v Maclean Shire Council & 2 Ors [2003] NSWCA 100
HEARING DATE(S):	04/04/03
JUDGMENT DATE:	13 June 2003
JUDGMENT OF:	Sheller JA at 1; Giles JA at 2; Ipp JA at 7
DECISION:	(1) The amendment sought by Ms Chambers to the notice of appeal be allowed (2) The appeal be allowed (3) The orders made by Sheahan J be set aside (4) A declaration be made that, as at 11 July 2001, the development of Lot 12 Deposited Plan 1009500 School Road, Palmers Island as a prawn farm and research station was a prohibited development (5) A declaration be made that the development application lodged by Mr and Mrs Smith and the development consent LDA No 2000/0585 issued to Mr and Mrs Smith by the Council on 11 July 2001 for the establishment of a prawn farm and research station is void and of no effect (6) The Council and Mr and Mrs Smith pay Ms Chambers' costs of the appeal (7) The Council and Mr and Mrs Smith to have a certificate under the Suitors Fund Act if otherwise entitled (8) The Council to pay Ms Chambers' costs of the proceedings in the Land and Environment Court.
CATCHWORDS:	Appeal from review proceedings - Whether final or interlocutory order made - Construction of SEPP 62 - Meaning of the term "area" in cl 4 of Schedule 1 to SEPP 62 - Jurisdictional nature of classifying a development as prohibited under the Environmental Planning and Assessment Act 1979 - Council's power to consent to a prohibited development - Procedure by which a prohibited development may be the subject of a development application - Effect of SEPP 62: sustainable Aquaculture (Amendment No 1) - Request for Land and Environment Court to exercise its discretion. D
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 4, 76(1), 76A(1) 76B, 77, 78A(1), 89(1), 89(2), 100A(2), 101 Land and Environment Court Act 1979, ss 20(1)(c), 20(2)(b) Local Government Act 1993 Surveyors Act 1929, s 23(1)
CASES CITED:	Becker v Marion City Corporation [1977] AC 271 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 Continental Liquers Pty Limited v G F Heublein & Bros Inc (1960) 103 CLR 422 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 Hawkesbury City Council v Sammut (2002) 119 LGERA 171 Hope v Bathurst City Council (1980) 144 CLR 1 Londish v Knox Grammar School (1997) 97 LGERA 1 Maxwell v Murphy (1957) 96 CLR 261 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335
PARTIES :	Anita Chambers (Claimant) Maclean Shire Council (First Opponent) Paul Smith (Second Opponent) Yumi Smith (Third Opponent)
FILE NUMBER(S):	CA 40392/02
COUNSEL:	T F Robertson SC (Claimant) J B Maston (First Opponent) Paul Smith (In Person)
SOLICITORS:	Sylvia Winters (Claimant) Pickering Priestley (First Opponent) Paul Smith (In Person)

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 40140/01
LOWER COURT JUDICIAL OFFICER :	Sheahan J

CA 40392/02
LEC 40140/01

SHELLER JA
GILES JA
IPP JA
Friday 13 June 2003

ANITA CHAMBERS v MACLEAN SHIRE COUNCIL & 2 ORS

FACTS

On 11 July 2001 the first opponent, the Maclean Shire Council (“the Council”) granted consent to the application made by the second and third opponents (Mr Paul Smith and Mrs Yumi Smith) for the development of a prawn and research station on their farm property (“the Smith farm”).

In proceedings before Sheahan J in the Land and Environment Court, Ms Chambers challenged the Council’s grant of consent, contending that the development proposed by the Smiths was a prohibited development under the Environmental Planning and Assessment Act 1979, and that the Council had no power to consent to it. Ms Chambers alleged that the development was not permissible because the proposed site did not meet the minimum performance criterion for pond-based aquaculture that elevation be greater than 1 metre Australian Height Datum (“AHD”) as prescribed by the State Environmental Planning Policy No 62 (“SEPP 62”). For the Smith farm to meet the minimum performance criteria, it had to be “within an area that is above 1 metre AHD and below 10 metres AHD”. The elevation of 40% of the Smith farm was lower than 1 metre AHD. Ms Chambers claimed a declaration that the proposed development was a prohibited development and the Council’s development consent was void.

Sheahan J construed “area” in cl 4 of Schedule 1 to SEPP 62 to mean a “district” or “region”, which could be categorised as generally having elevations ranging between 1 and 10 metres. In reliance on Londish v Knox Grammar School (1997) 97 LGERA 1, his Honour found that it was reasonably open to the Council to find that the general area in which the Smith farm is located has a prevailing elevation of approximately 1 metre AHD or more. Thus, the Smiths’ development application was permissible and the Council was entitled to determine so.

The appellant applied for leave to appeal and appealed against the findings of Sheahan J.

HELD per Ipp JA (Sheller JA agreeing)

(i) Although the matter came before the Court as an application for leave to appeal, leave was not required. The order Sheahan J made, that the development was permissible and the Council was entitled to determine this, was, in effect, a final order. Ms Chambers was entitled to appeal as of right.

(ii) The question before Sheahan J concerned the meaning of “area” in cl 4 of Schedule 1 to SEPP 62. This governed the question of whether the minimum criteria set out in cl 4 were met. These were questions of construction and law: Hope v Bathurst City Council (1980) 144 CLR 1 at 10 per Mason J; Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 397. Thus, the Council’s decision is reviewable.

(iii) His Honour erred by misconstruing “area” in cl 4 of Schedule 1 to SEPP 62 to mean a “district” or “region”, which could be categorised as generally having elevations ranging between 1 metre and 10 metres.

(a) This construction of the term “area” avoids any certain definition of “area”. Having regard to the purpose of cl 4 of schedule 1 – to protect the environment from pollution from acid sulphate soils – certainty in regard to the definition of “area” is desirable. Thus, there is good reason to construe cl 4(1) as being intended to apply to specific development sites (in this case, the Smith farm) and not to undefined, general areas.

(b) Even if “area” were to mean an area more extensive than the proposed development site, there is nothing in Schedule 1 or any other part of SEPP 62 that indicates that areas that are generally within the specified elevations, or areas where the majority of levels fall within the specified elevations, meet the minimum performance criteria. Thus, the more extensive definition does not overcome the fact that approximately 40% of the Smith farm is below 1 metre AHD.

(iv) The scheme of the Environmental Planning and Assessment Act indicates that the classification of a development as prohibited under Div 1 of Part 4 is jurisdictional. The relevant factual reference, whether the minimum performance criteria are met, is preliminary to the Council exercising its statutory power. It follows that the question whether the criteria are met involves a jurisdictional fact: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 65 per Spigelman CJ. Sheahan J therefore erred in adopting the approach set out in Londish v Knox Grammar School. According to the relevant legislation, the question whether the criteria are met must be answered objectively and not by reference to the Council’s own classification of the relevant circumstances. The Smith farm did not comply with the minimum performance criteria, as a substantial part of the farm was below 1 metre AHD, and was therefore a prohibited development under the Act.

(v) Pursuant to Div 2 of Part 4 of the Environmental Planning and Assessment Act, the only way in which a prohibited development may be the subject of a development application is pursuant to s 89, which, in effect, provides that a valid application for a prohibited development can only be made to the Minister. Thus, a development application to a council for a prohibited development is not an application in terms of the Act. Accordingly, as the Smiths’ development application was for a prohibited development and was an application to the Council, it was not an application in terms of the Act and the Council had no power to consent to it. The consent given by the Council was accordingly invalid.

(vi) The State Environmental Planning Policy No 62 – Sustainable Aquaculture (“Amendment No 1”), which amended SEPP 62, does not extend to the Smiths’ development application. Clause 18, which provides for the extension of Amendment No 1 to development applications already made but not finally determined before the commencement of the amendment, has no application in this case, because the Smiths’ development application was finally determined by the Council’s decision. Further, cl 18 does not indicate with reasonable certainty that it applies to resuscitate an invalid consent to a development application: See Maxwell v Murphy (1957) 96 CLR 261 at 267. The amendment came into force after the appellant commenced proceedings and cl 18 shows no clear intention to vary the rights of parties who have begun legal proceedings prior to the coming into force of the amendment: Continental Liqueurs Pty Limited v G F Heublein & Bros Inc (1960) 103 CLR 422 at 427 per Kitto J.

(vii) Amendment No 1 does not provide an overwhelming discretionary consideration for refusing leave to appeal. There is no certainty that, as a result of the amendment, were a fresh application to be made now it would be granted. Speculation about a new application is not a sound basis for the exercise of discretionary considerations when the court has concluded that a consent given by the Council to a development application is invalid.

(viii) The Councils’ reliance on discretionary considerations as a basis for the Land and Environment Court refusing to make the orders claimed by the appellant (Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335) is rejected.

HELD per Giles JA

(i) The reasons of Justice Ipp are accepted, subject to the following comments:

(a) Pursuant to the Environmental Planning and Assessment Act 1979, the Council had no power to consent to the development if it was a prohibited development. Thus, jurisdictional error becomes available. However, it is not essential to the result, since even within Londish v Knox Grammar School (1997) 97 LGERA 1 the meaning of “area” on which the Council proceeded was not open to it.

(b) The Council’s reliance on discretionary considerations as a basis for the Land and Environment Court refusing to make the orders claimed by the appellant should be determined in the Land and Environment Court.

ORDERS

(1) The amendment sought by Ms Chambers to the notice of appeal be allowed.

(2) The appeal be allowed.

(3) The orders made by Sheahan J be set aside.

(4) A declaration be made that, as at 11 July 2001, the development of Lot 12 Deposited Plan 1009500 School Road, Palmers Island as a prawn farm and research station was a prohibited development.

(5) A declaration be made that the development application lodged by Mr and Mrs Smith and the development consent LDA No 2000/0585 issued to Mr and Mrs Smith by the Council on 11 July 2001 for the establishment of a prawn farm and research station is void and of no effect.

(6) The Council and Mr and Mrs Smith pay Ms Chambers’ costs of the appeal.

(7) The Council and Mr and Mrs Smith to have a certificate under the Suitors Fund Act if otherwise entitled.

(8) The Council to pay Ms Chambers’ costs of the proceedings in the Land and Environment Court.

CA 40392/02
LEC 40140/01

SHELLER JA
GILES JA
IPP JA

Friday 13 June 2003

ANITA CHAMBERS v MACLEAN SHIRE COUNCIL & 2 ORS

Judgment

1 SHELLER JA: I have had the benefit of reading the reasons for judgment in draft prepared by Ipp JA. I agree with what his Honour says. I have also read the reasons for judgment in draft of Giles JA and his Honour’s proposal that the matter be remitted to the Land and Environment Court for determination of the discretionary defence. With due respect, in my opinion, further consideration of the discretionary defence which has little prospect of success, will only put the parties to further unnecessary expense. If Mr and Mrs Smith wish to pursue the development of a prawn and research station on their farm property it should be considered by all parties in terms of Amendment No 1. Accordingly, I agree with the orders that Ipp JA has proposed.

2 GILES JA: I have had the advantage of reading the reasons of Ipp JA in draft. Subject to the following, I agree with them, but I propose a slightly different outcome in the appeal.

3 I agree that, with the 1998 amendments to the Environmental Planning and Assessment Act 1979, the Council had no power to consent to the development if it was a prohibited development. Jurisdictional error thus becomes available. I do not think that essential to the result, since even within Londish v Knox Grammar School (1997) 97 LGERA 1 I consider that the meaning of “area” on which the Council proceeded was not open to it.

4 Leave was given in the Land and Environment Court to raise the discretionary defence. It remains for determination, and the scope of the Court’s discretion is wide, see Warringah Shire Council v Sedevic (1987) 10 NSWLR 335. There has not been the tender of evidence on that issue, or submissions beyond a degree of consideration in the appeal which, in any event, cannot be conclusive unless the evidentiary basis is complete. The discretionary defence is not promising, particularly if the Council had no power to consent to a prohibited development, but I do not think that the Council and the Smiths should be deprived of the opportunity to have the discretionary defence determined in the Land and Environment Court. Whether to continue in the Land and Environment Court in that regard is, of course, a matter for the Council and the Smiths.

5 That does not mean that this Court should hold back from making orders in the appeal. It means that there should be a remission to the Land and Environment Court so that the discretionary defence can be determined if it is maintained.

6 I agree with the orders proposed by Ipp JA, save that I propose the additional order that the matter be remitted to the Land and Environment Court for determination of the discretionary defence.

7 IPP JA:

The proceedings in the Land and Environment Court`

8 On 11 July 2001 the first opponent, the Maclean Shire Council (to which I shall refer as “the Council”) granted consent (LDA No 2000/0585) to the application made by the second and third opponents (Mr Paul Smith and Mrs Yumi Smith) for the development of a prawn and research station on their farm property described as Lot 12 Deposited Plan 1009500 School Road, Palmers Island. I shall refer to this property as “the Smith farm”.

9 In Class 4 proceedings before Sheahan J in the Land and Environment Court, Ms Anita Chambers (Ms Chambers) challenged the Council’s grant of consent, contending that the development proposed by the Smiths was a prohibited development under the Environmental Planningand Assessment Act 1979, and the Council had no power to consent to it.

10 His Honour, however, rejected Ms Chambers’ contentions. He concluded that “the subject development is permissible, and that the Council was entitled to so determine”.

11 Thereafter, the registry of the Land and Environment Court issued an order in the very terms of the judge’s conclusion.

12 Sheahan J considered that his judgment did not finalise the case and made an order adjourning the matter for a hearing to determine its further disposition. The basis for this conclusion lay in the state of the pleadings.

13 In paragraph 4 of her amended points of claim Ms Chambers alleged:

“The development is not permissible because the proposed site does not meet the minimum performance criterion that elevation be greater than 1m AHD as prescribed by clause 7 and Part 2 of Schedule 1 of SEPP 62”.

“SEPP 62” is a reference to the State Environmental Planning Policy No. 62.

14 By paragraph 5 of the amended points of claim Ms Chambers claimed:

“(a) A declaration that the proposed development of Lot 12 DP 1009500 School Road, Palmers Island as a prawn farm and research station in development application No 2000/0585 is prohibited development.
(b) A declaration that development consent LDA No 2000/0585 issued to the second and third [opponents] on 11 July 2001 for the establishment of a prawn farm and research station is void and of no effect”.

15 The points of claim contained alternative claims based on the allegation, in paragraph 6 thereof, that:

“If the development is not prohibited development, the development is designated development”.

On that basis, in paragraph 7, Ms Chambers claimed in the alternative:

“(a) A declaration that development application No 2000/0585 was not validly made because it was not accompanied by an environmental impact statement.
(b) A declaration that development consent LDA No 2000/0585 issued to the second and third [opponents] on 11 July 2001 for the establishment of a prawn farm and research station is void and of no effect”.

16 Initially, the Council’s defence was based, in substance, on denials of paragraphs 4 and 6 of the points of claim, but in November 2001 Sheahan J gave leave to the Council to amend its points of defence by introducing the following:

“In the alternative, in respect of each and every one of the claims of [Ms Chambers], the [Council] pleads that the Court ought not in the exercise of its discretion grant the relief sought in the claim, or alternatively defer making any orders”.

The amendment set out the particulars of the grounds on which the Council asked the Court to exercise its discretion in the manner pleaded. These grounds are discussed below.

17 In his judgment, the subject of this appeal, Sheahan J dealt only with the issues that arose in consequence of the claims made in paragraph 5 of the points of claim. The issue that arose by reason of these claims was the only issue then before his Honour. Accordingly, Sheahan J did not deal with the claims made in paragraph 7 of the points of claim and did not deal with the issue of discretion raised by the amendment to the points of defence made in November 2001. In consequence, after giving judgment on the issue raised by paragraph 5, his Honour adjourned the matter for further disposition.

Is leave to appeal required?

18 The matter came before this Court as an application for leave to appeal, but Mr Robertson SC, senior counsel for Ms Chambers, submitted that leave was not required, as the order Sheahan J had made was in effect a final order and Ms Chambers was entitled to appeal as of right. Mr Maston, counsel for the Council, resisted this contention.

19 The relief claimed by Ms Chambers in paragraph 5(b) of her points of claim was the same as that claimed by her in paragraph 7(b). Nevertheless, the basis for the relief claimed in paragraph 5(b) differed from the basis of the claim in paragraph 7(b). Accordingly, his Honour’s order did not have the effect that Ms Chambers was finally precluded from claiming the relief in question. Although Ms Chambers failed to persuade Sheahan J that she was entitled to the relief claimed in paragraph 5(b), she still had the prospect of obtaining the very same relief on the different basis pleaded in paragraphs 6 and 7(b).

20 The same, however, cannot be said about the relief claimed in paragraph 5(a) of her points of claim. That relief was different from the relief claimed in paragraph 7(a). Therefore, the effect of the disposal of the issue raised by paragraph 5(a) was to preclude Ms Chambers, finally, from obtaining the relief she sought therein. None of the remaining issues raised by the pleadings detracted from the finality flowing from that disposition. To this extent, therefore, a final order was made: cf Becker v Marion City Corporation [1977] AC 271.

21 Mr Maston, in support of his proposition that Ms Chambers required leave to appeal, submitted that the learned judge had not made an order but only a “finding”, that is, a finding that “the subject development is permissible, and that the Council was entitled to so determine”. In other words he submitted that there was no final order because there was no order at all. This submission was based, largely, on the following observation made by Sheahan J in his judgment:

“As leave was granted at the hearing for the Council to amend its points of defence to raise its defence of discretion, the Court proposes to make no orders in the proceedings at this stage, but merely to deal with the issue, as it is put in paragraph 4 of the amended points of claim …”

22 There is no substance in the submission so made. As I have mentioned, by a formal act of the registry of the Land and Environment Court, an order was made that “the subject development is permissible, and that the Council was entitled to so determine”. Accordingly, Mr Maston’s submission cannot be upheld.

23 Mr Maston also pointed to the fact that the registrar of this Court, in a previous hearing, determined that the order made by Sheahan J was interlocutory in nature and leave was required. For the reasons I have given, the order so made by the registrar was in error. It cannot bind this Court.

24 In the circumstances I conclude that Ms Chambers is entitled to appeal as of right against the order made by the Land and Environment Court, and leave is not required.

Ms Chambers’ argument

25 The basic argument advanced by Ms Chambers on the appeal was that Sheahan J erred in finding that the Smiths’ development application was permissible with the Council’s consent. This argument was based on a number of interlinking propositions.

26 Clause 7 of SEPP 62 deals with “Permissible Aquaculture Development”. The heading of cl 7 reads:

“Pond-based and tank-based aquaculture permissible with consent”.

The Smith farm is intended to be a pond-based form of aquaculture.

27 Clause 7 goes on to provide:

(1) This clause applies to development for the purpose of pond-based aquaculture, or tank-based aquaculture, to which this Policy applies.
(2) A person may carry out any such aquaculture development with development consent if it complies with the site location and operational requirements set out in Schedule 1 for the development (the “minimum performance criteria”).
(3) The requirements set out in Schedule 1 are minimum requirements and do not limit the matters a consent authority is required to take into consideration under the Act or the conditions that it may impose on any development consent”.

28 Part 2 of Schedule 1 contains the minimum performance criteria referred to in cl 7(2). Clause 4 of Part 2 of the Schedule provides:

“ Elevation Australian Height Datum (AHD)
(1) Estuarine pond-based aquaculture – within an area that is above 1 metre AHD and below 10 metres AHD”.

29 Clause 4(1) of the Surveyors (Practice) Regulation 2001 (made pursuant to s 23(1) of the Surveyors Act 1929) defines “AHD” as follows:

“AHD means Australian Height Datum, that is, a system of control points for height based on a network of levelling measurements that covered the whole of Australia and that was fitted to mean sea level, as measured at tide gauges distributed around the Australian coast, over the period 1968 to 1970”.

It was not substantially in dispute that this definition conveys the meaning of “AHD” in SEPP 62.

30 Therefore, for the Smith farm to meet the minimum performance criteria for pond-based aquaculture, it had to be “within an area that is above 1 metre AHD and below 10 metres AHD”.

31 Ms Chambers argued that the elevation of a significant part of the Smith farm was lower than 1 metre AHD. Therefore, she submitted, the proposed development did not meet the minimum performance criteria and was prohibited. The Council and Mr and Mrs Smith did not dispute that, if the Smith farm did not meet the minimum performance criteria, the proposed development was prohibited.

32 Ms Chambers submitted further that, under the Act, the Council had no power to consent to a prohibited development. This proposition underlay the relief she claimed.

The Council’s power to consent to a prohibited development

33 Division 1 of Pt 4 of the Environmental Planning and AssessmentAct provides for a three-fold classification in regard to the carrying out of developments. The first category is that provided by s 76(1). Section 76(1) concerns specified developments that, by an “environmental planning instrument”, may be carried out without the need for development consent. The second category of development is set out in s 76A(1) and concerns a specified development that, by an environmental planning instrument, may not be carried out except with development consent. The third category is set out in s 76B. It concerns developments that, by an environmental planning instrument, are prohibited, or a development that cannot be carried out on land with or without development consent.

34 The procedure for making applications for developments that may only be carried out with consent is set out in Div 2 of Pt 4 of the Act. It is sufficient to note that by s 78A(1) a person may apply to a consent authority for consent to carry out development. Division 2 does not apply to prohibited developments (s 77).

35 Section 4 of the Act defines a “consent authority” in relation to a development application as:

“(a) The council having the function to determine the application, or
(b) If a provision of this Act, the regulations or an environmental planning instrument specifies a Minister or public authority (other than a council) as having the function to determine the application – that Minister or public authority, as the case may be”.

36 According to the Act, the only way in which a prohibited development may be the subject of a development application is pursuant to s 89 (which is not within Division 2). Section 89(1) provides:

“The Minister may direct in writing, that specified prohibited development on specified land may be the subject of a development application for determination by the Minister if, having regard to matters that in the Minister’s opinion are of significance for State or regional environmental planning, the Minister considers it is expedient in the public interest to do so”.

Section 89(2) provides that, on the giving of a s 89(1) direction, a person may make a development application to the Minister as consent authority for consent to carry out the prohibited development and the Minister may determine the development application.

37 In the present case, the Smiths made their development application to the Council, and not to the Minister. Under the Act, by reason of the provisions to which I have referred, the Council is not a consent authority for the purposes of a prohibited development. Only the Minister is a consent authority for such a development. A valid application for a prohibited development can only be made to the Minister. Thus, a development application to a council for a prohibited development is not an application in terms of the Act.

38 Accordingly, if the Smiths’ development application was for a prohibited development, it was not an application in terms of the Act and the Council had no power to consent to it.

The approach to the construction of the word “area” in the minimum performance criteria

39 Sheahan J defined the crucial issue before him as being “what meaning is to be ascribed to the word ‘area’ as used in [cl 4 of Schedule 1] to SEPP 62 – does it refer to an ‘area’ of the site to be used for aquaculture, or does it refer to a broader ‘area’, or the district, in which the site so used is to be found?” This, he considered, would determine whether the Smith farm met the minimum performance criteria contained in cl 4 of Schedule 1 to SEPP 62, and hence whether or not the Smith’s application was for a prohibited development.

40 Sheahan J, having stated that the Court had to decide what meaning was to be attributed to the word “area” as used in SEPP 62, nevertheless proceeded to determine the issue in a different way. In reliance on Londish v Knox Grammar School (1997) 97 LGERA 1, his Honour held that it was sufficient for the Council to show that it was reasonably open to it to determine that the Smiths’ site was within an area that was above 1 metre and below 10 metres AHD. He accepted the Council’s submission that for Ms Chambers to succeed she had to show “that the relevant facts could not reasonably have led to more than one conclusion”.

41 His Honour proceeded to hold:

“[I]t was indeed open to Council to find both that the majority of spot levels on the subject site were above one metre AHD, and also that the general area in which the site is located has a prevailing elevation of approximately one metre AHD or more”.

Following Londish v Knox Grammar School , he concluded:

“The Council was entitled to make the judgment that it did, and this Court should not review such a decision”.

42 Mr Robertson submitted that Sheahan J had erred in concluding that the principles laid down in Londish v Knox Grammar School were applicable. He contended that, having regard to the particular legislation, there could only be one correct meaning of “area” and the question of the meaning of “area” could not be answered on the basis of whether the Council’s construction was “reasonably open”, but had to be answered on the basis of the correct meaning. Mr Maston, on the other hand, supported his Honour’s reasoning.

43 The provisions in Div 1 of Pt 4 of the Act relating to the three-fold classification in regard to the carrying out of developments were made by an amendment to the Environmental Planningand Assessment Act which commenced on 1 July 1998 and post-dated Londish v Knox Grammar School. Section 101 of the Act, prior to that amendment, provided that the Minister might give a direction to a consent authority to refer to “to the Secretary for determination by the Minister” a development application for a prohibited development. It was then open to the Minister under s 100A(2) to grant consent to a prohibited development. Thus the Act, prior to the 1998 amendment, contemplated that a development application for a prohibited development could be lodged with a consent authority, not being the Minister, and the Minister could then direct that the development application be referred to him or her for determination. In that way, a development application for a prohibited development made to a council (being a consent authority) was not without legal utility.

44 The position changed, however, once the Act was amended in 1998. As I have stated above, the Act as amended contains no procedure whereby a development application for a prohibited development can be made to a consent authority, not being the Minister. I repeat my conclusion that a development application to a council for a prohibited development is not an application in terms of the Act in its present form. In my view, such an application has no legal force or effect.

45 Mr Robertson submitted that, by the 1998 amendment, the classification of a development, that is, whether it is permissible or prohibited, “has now become jurisdictional”. He submitted that, as an application for a prohibited development was a nullity, a council had no power to consent to it. On that basis, the question of power was not to be determined by reference to what was reasonably open to the consent authority, but by what was objectively correct.

46 In my opinion, Mr Robertson’s submission should be accepted. The scheme of the Environmental Planningand Assessment Act relating to the three-fold classification of developments does not suggest that the determination whether an application for development is for a prohibited development (or one of the other two forms of development applications falling within Div 1 of Pt 4 of the Act) rests upon a council’s own classification of the relevant circumstances. Rather, it indicates that it is not for a council itself to determine, as a matter of its opinion, whether it has power to grant consent to a development application or whether only the Minister has such power: cf Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 149.

47 I would refer also to the statement of Spigelman CJ in Timbarra Protection Coalition Inc v RossMining NL (1999) 46 NSWLR 55 at 65 that “if the factual reference is preliminary or ancillary to the exercise of a statutory power”, the conclusion is likely to be a jurisdictional fact. The relevant factual reference in this case is whether the minimum performance criteria are met. Whether those criteria are met determines the character of the proposed development, namely, whether it is prohibited or not. That in turn determines whether the Council has the power to consent thereto. Thus, the factual reference is preliminary to the exercise of statutory power by the Council.

48 Therefore, the reasoning in Londish does not apply: Timbarra Protection Coalition Inc v RossMining NL at 63. In my opinion, Sheahan J erred in applying the approach adopted therein. The question whether the minimum performance criteria were met involves a jurisdictional fact and, according to the relevant legislation, must be answered objectively – not by reference to the subjective opinion of the Council.

Is the decision of the Council reviewable?

49 The proceedings brought before Sheahan J were by way of judicial review. Mr Maston submitted that the extent to which the Council’s decision was reviewable by his Honour under the Land and Environment Court Act 1979 depended upon whether the questions raised by Ms Chambers involved questions of law or questions of fact (s 20(1)(c) and 20(2)(b) of that Act). He submitted that the questions whether the minimum performance criteria were met and whether the Smiths’ development was a prohibited development were questions of fact.

50 This argument does not appear to have been raised before Sheahan J, but it can be disposed of swiftly.

51 The question before Sheahan J concerned the meaning of “area” as this word is used in cl 4 of Schedule 1 to SEPP 62. This governed the question whether the minimum performance criteria were met.

52 In Hope v Bathurst City Council (1980) 144 CLR 1, Mason J (at 10) stated if an error had been made in arriving at the common understanding of a word, and that error “was associated with an omission to relate the word to the expression with which it was associated,” the error was one of construction and accordingly of law.

53 In Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389, the High Court said (at 397):

“[T]he determination of whether [an] ‘Act uses an expression … in any other sense than that which [it has] in ordinary speech’ is always a question of law: ( NSW Associated Blue-Metal Quarries (1956) 94 CLR 509 at 511 to 512)”.

54 Ms Chambers’s argument is that the Council erred in that, in construing the word “area”, it omitted to relate the word to its context in cl 4 of Schedule 1. She argues that term “area” does not have the meaning it bears in ordinary speech, but is to be construed in the light of cl 4 of Schedule 1 and SEPP 62 as a whole. In my view these arguments raise a question of construction and a question of law.

55 I would add that Mr Robertson submitted that, as the issue in question involved the determination of a jurisdictional fact, the Land and Environment Court had jurisdiction to review the decision of the Council. In the light of the conclusion to which I have come, there is no need to deal with that argument.

The parties’ contentions concerning the word “area” and the findings of the trial judge

56 For the sake of convenience I repeat that the minimum performance criteria in cl 4 of Schedule 1 to SEPP 62 included:

“ Elevation Australian Height Datum (AHD)
(1) Estuarine pond-based aquaculture – within an area that is above 1 metre AHD and below 10 metres AHD”.

57 The critical question before Sheahan J was: what was the meaning conveyed by the word “area” in cl 4(1) of Schedule 1? That question was critical because neither the Smiths nor the Council disputed that about 40% of the site of the Smith farm was below 1 metre AHD. Indeed both the Council and the Smiths knew that this was so prior to the Council giving its consent to the development.

58 Before Sheahan J (and in the appeal) Ms Chambers submitted that the term “area” in cl 4 of Schedule 1 meant the area of the site location of the proposed development itself. On that basis, Ms Chambers said, the Smith farm did not comply with the minimum performance criteria.

59 Before Sheahan J (and in the appeal) the Council advanced a construction of “area” that it submitted overcame the fact that a substantial part of the Smith farm was below 1 metre AHD.

60 The Smiths did not participate in the hearing before Sheahan J (although they were joined as parties), but Mr Smith represented his wife and himself in the appeal. He argued for a different construction of the word from that advanced by the Council, and submitted that his construction, in a different way, also overcame the problem that a substantial portion of the Smith farm was below 1 metre AHD.

61 Sheahan J set out the contentions of the Council and the claimant as follows:

“[The Council contended that] SEPP’s AHD requirements refer to ‘area’ in a broad sense, whereas [Ms Chambers] says that compliance with those requirements must be viewed in the context of ‘area’ construed in the narrower sense viz ‘area of the site’”.

62 The Council contended that the word “area” had to be given its ordinary meaning of “district” or “region” and that it was sufficient for compliance with cl 4 of Schedule 1 that the “district” or “region,” generally, was above 1 metre AHD and below 10 metres AHD.

63 Sheahan J upheld the Council’s argument. He said:

“The word ‘area’, as appearing in cl 4(1) of Schedule 1, would have no work to do if it simply meant ‘site’. In the Environmental Planning and Assessment Act and the Local Government Act 1993 the word ‘area’ means local government area. The dictionary would suggest synonyms such as ‘region’ or ‘tract of land’”.

And observed:

“The Court has come to the firm conclusion that Mr Maston’s submissions on the ‘ordinary’ meaning of the word ‘area’ in the context of SEPP 62 are to be preferred. The appropriate question for the Council to ask itself was whether the development site is located in an ‘area’, as in ‘district’ or ‘region’, which could be categorised as generally having elevations ranging between 1m and 10m AHD”.

64 I repeat that his Honour concluded:

It is clear, that on the material before it, it was indeed open to Council to find both that the majority of spot levels on the subject site were above 1m AHD, and also that the general area in which the site is located has a prevailing elevation of approximately 1m AHD or more”.

The purpose of the minimum performance criteria relating to elevation

65 Before discussing the different arguments raised by the parties, it would be appropriate to explain the purpose that underlies the elevation criteria in cl 4 of Schedule 1.

66 Low-lying land in parts of New South Wales contain materials in the soil which when exposed to air oxidise and create sulphuric acid. This acid has the potential to pollute the environment. In addition, low-lying areas of land in some areas are susceptible to flooding with a similar consequence to the environment. Accordingly, the presence of high acid sulphate soils is a matter of concern and is a factor to be taken into account in determining site locations for estuarine pond-based aquaculture. Indeed, cl 5 of Schedule 1 provides for landform exclusion zones involving high acid sulphate soils risk areas. The provisions of cl 4 are less extreme measures designed to protect the environment against problems caused by aquaculture in areas where there might be acid sulphate soils.

67 At the same time that SEPP 62 was issued, the New South Wales Government published a document entitled “New South Wales North Coast Sustainable Aquaculture Strategy” (“the Aquaculture Strategy”). The Aquaculture Strategy contains the following statements:

“(3) Elevation and Topography
(a) Elevation
For estuarine ponds, the height above sea level of land is a good indicator of a number of important factors such as:

· Land above 2m AHD is less likely to contain acid sulphate soils and land below 1m AHD is likely to have significant acid sulphate soils issues.

· Ponds on land located higher than 10m AHD will involve expensive pumping costs.

· Tidal and flooding inundation is likely to occur on land below 1m AHD.

· Ponds on land below 1m AHD are likely to have problems with draining and drying and ASS [acid sulphate soils].

Preferred Location : For estuarine ponds, land located between 2-10m AHD”.


The Aquaculture Strategy thereby explains the policy that led to cl 4 of Schedule 1 and the establishment of minimum performance criteria relating to the elevation of land intended for aquaculture development.

The Council’s argument

68 Mr Maston supported the reasoning of his Honour. He first submitted, as Sheahan J had held, that the word “area” was used in its ordinary sense, that is “a more generalised” sense of a “region” or “tract of land”.

69 Mr Maston submitted that the notion of a particular development being in an “area” of a certain character must be more extensive than the very site itself. He submitted that the reach of the word “area” should not be confined to the development site or even its immediate environs. The difficulty that this submission faces is that it avoids any positive definition of “area”.

70 Mr Maston suggested that it would be for the particular council concerned to decide on the boundaries of the particular area. On this argument, it would not be possible to determine whether a development was permissible or prohibited until the council had selected the particular area applicable. This would give rise to practical difficulties. On Ms Chambers’ argument (that “area” means the area of the site location of the proposed development itself), certainty could be achieved by conducting a survey on the site in question. Having regard to the purpose of the elevation criteria, certainty in regard to the definition of “area” is desirable.

71 The purpose underlying cl 4 is to protect the environment from pollution from acid sulphate soils. With that in mind there is good reason to construe cl 4(1) as being intended to apply to specific development sites and not to undefined, general areas.

72 In any event, the argument advanced on the Council’s behalf falls foul of the same argument that results in the reasoning in Londish having no application to the circumstances of this case. As I have noted, the scheme of the Act is against the proposition that it is for a council to decide, in its discretion, whether an application for development meets the minimum performance criteria. That is the effect of Mr Maston’s submission. In my view, it cannot be accepted.

73 Mr Maston pointed out that in the Environmental Planning and Assessment Act and the Local Government Act the word “area” means “local government area” and submitted that a like meaning should be attributed to the word in cl 4. I do not accept this submission. The Acts in question have no relationship with SEPP 62 and there is no warrant for giving the meaning of a word in those Acts to the same word in SEPP 62.

74 Mr Maston then submitted that Sheahan J had rightly held that, on Ms Chambers’ construction, the word “area” was unnecessary. He pointed out that cl 4 could merely have provided that estuarine pond based aquaculture on land below 1 metre AHD would be prohibited. He said that “area” could not mean “an area whose limits are the site because it’s speaking of the site of the development being in an area, that’s the subject of the sentence”.

75 In the context of SEPP 62, I am not persuaded by linguistic arguments of this kind. It would be going too far, in my view, to attribute a vague and general meaning to the word “area” merely on the ground that, had a more specific and practical meaning been intended, a different formulation would have been used.

76 Mr Maston referred to the various uses of the word “area” in Pt 2 of Schedule 1 but it is plain that different meanings are attributed to the word “area” throughout the Schedule and that a particular usage depends upon the particular context. No assistance is derived from the way in which the word “area” is used in other parts of the Schedule.

77 I have left to the last a factor that, in my view, is entirely destructive of the Council’s argument. Even if it is accepted that “area” means an area more extensive than the proposed development site, under SEPP 62 that area has to be within the minimum performance criteria (save for the possible application of the de minimis principle). It is common ground that the Smith farm site was not. Sheahan J attempted to answer this point by saying that the farm site was located in an area which could be categorised as “generally having elevations ranging between 1m and 10m AHD” and observing that “the majority of spot levels on the subject site were above 1m AHD”, and that “the general area in which the site is located has a prevailing elevation of approximately 1m AHD or more”. This reasoning has no basis under SEPP 62 and cannot be supported. There is nothing in Schedule 1 or any other part of SEPP 62 that indicates that areas that are “generally” within the specified elevations, or areas where the “majority” of levels fall within the specified elevations, meet the minimum performance criteria.

78 Accordingly, the Council’s construction does not overcome the fact that about 40% of the Smith farm is below 1 metre AHD.

79 I do not accept the Council’s submissions in respect of this issue.

Mr Smith’s argument as to the meaning of “area”

80 Mr Smith commenced his argument by saying that the Smith farm site was at the highest elevation on Palmers Island. He said that if Ms Chambers’ construction of the word “area” were to be upheld there would be no more prawn farms built on Palmers Island, and that would be contrary to the basic policy of SEPP 62 and the Aquaculture Strategy.

81 Mr Smith observed that, without a planning permit or any other permission from any authority, he could carry out earthworks on the site as long as he did not excavate deeper than 1 metre. He could use the earth so excavated to fill areas that were below 1 metre AHD. This would mean that at any particular point in time he could carry out earthworks to cause the whole farm site to be higher than 1 metre AHD. In other words, according to Mr Smith, the AHD of a particular piece of land could readily be manipulated by adding soil to increase its height. This, he submitted, would defeat the purpose of cl 4 of Schedule 1 as, in some areas, the excavation and movement of soil to build up elevation would expose acid sulphate soils and create an environmental hazard. For this reason, he submitted, the construction advanced by Ms Chambers could not be right.

82 The argument was not raised before Sheahan J and there is no evidence to support Mr Smith’s submission that the excavation and movement of soil would expose acid sulphate soils and create an environmental hazard. I accept, nevertheless, that on a common sense basis it is probably correct.

83 Mr Smith submitted that the appropriate meaning of “area” was an area defined by the applicable acid sulphate soils risk map (“the ASS risk map”) published by the Department of Land and Water Conservation.

84 The Aquaculture Strategy states:

“The ASS Risk Maps provide details on the likely risks that acid sulphate soils are present given the broad range of soil characteristics. In addition these maps provide information on elevation and soil/landscape characteristics. The risk approach in the ASS Maps provides a useful tool for identifying areas where aquaculture ponds could be high risk, where the risks are more easily managed and areas where there is nil risk.”

85 The ASS risk map applicable is a map of a large area described as Yamba. Various demarcated areas are shown within the Yamba area. These areas, broadly speaking, indicate areas where there is a high probability of acid sulphate soils, a low probability of such soils, where there is no known occurrence of such soils and where there is “disturbed terrain”. Within these areas, smaller areas are demarcated which are sub-categories of the areas I have described. The Smith farm falls within one of the sub-category areas.

86 The sub-categories are demarcated by reference to various elements, including landform process class, landform element and elevation. The Smith farm is within the landform process class, “alluvial”, within the landform element, “levee toe,” and, relevantly, within an elevation area of 2 to 4 metres. The particular demarcated area within which it falls is described as “At2”. “A” denotes alluvial, “t” denotes levee toe and “2” denotes 2 to 4 metres.

87 The elevation of 2 to 4 metres on the ASS risk map is not intended to be accurate. A note on the map records:

“This map is to be used as a general guide for regional and local scale land use planning and land management only and not for the assessment of specific sites which can only be assessed by site specific soil investigation.”

The map signifies that it is “only reliable at the published scale of 1:25000”. An annotation records that the elevations on the map are “approximate AHD”.

88 The evidence before Sheahan J was to the effect that ASS risk maps are intended to be preliminary guides for initial land use planning purposes only. They cannot be relied upon for accurate elevations on specific sites.

89 Mr Smith acknowledged that the ASS risk map applicable was not site specific and there were areas within the demarcated At2 area, in which the Smith farm fell, that in fact were below 2 to 4 metres.

90 He submitted, however, that the ASS risk map contains a practical and certain means for determining whether or not land meets the requirements of cl 4 of Schedule 1. By reference to the ASS risk map, one can tell immediately whether or not identified land meets those criteria. The map would be decisive. This answered the criticism of uncertainty inherent in the argument advanced by the Council.

91 Moreover, on this argument the soil could not be manipulated because it would not matter if levels were altered by soil from elsewhere. On this argument, there was no intention that the elevation minimum performance criteria would be site specific. One would not look at the site, there would be no need to conduct surveys, it would not matter if at a particular time levels were altered. One would always look only at the ASS risk map which, Mr Smith submitted, had been created specifically for the purpose of denoting areas of degrees of likelihood of encountering acid sulphate soils.

92 On Mr Smith’s argument, the Smith farm complies with the minimum performance criteria merely because it falls within an area on the ASS risk map that is designated as being between 2 and 4 metres AHD.

93 At the time of the Council’s grant of consent, SEPP 62 made reference to ASS risk maps. A note to cl 4 of Schedule 1 read:

“AHD for areas may be sourced in the Acid Sulphate Soils Risk Maps published by the Department of Land and Water Conservation”.

Clause 4(2) of SEPP 62, however, provides:

“Notes in this Policy and the table of contents do not form part of this Policy”.

94 A note appears in the Aquaculture Strategy under the heading “Elevation Australian Height Datum (AHD),” where reference is made to estuarine pond-based aquaculture within an area that is above 1m AHD and below 10m AHD. The note reads:

“AHD for areas may be sourced in the Acid Sulphate Soils Risk Maps published by the Department of Land and Water Conservation”.

The words of this portion of the Aquaculture Strategy are identical with cl 4 of Schedule 1 to SEPP 62.

95 The Aquaculture Strategy does not form part of SEPP 62. Mr Maston, who supported Mr Smith’s argument, submitted that regard could nevertheless be had to it as background material relevant to construing SEPP 62. In my view, however, the express stipulation in cl 4 of SEPP 62 that the notes do not form part of SEPP precludes any reference being made to the note to cl 4 of Schedule 1 for the purposes of construing the clause. If that were not the case, the effect of cl 4 of SEPP 62 would be negated.

96 Mr Smith sought to support his argument by reference to a Project Profile Analysis map (“the PPA map”), published pursuant to cl 12 of SEPP 62. The PPA map showed defined areas that were suitable for aquaculture. Mr Smith said that the Smith farm fell within an area coloured green on the map, and this area was indicated as being suitable for aquaculture.

97 Mr Robertson submitted that there was no evidence that the PPA map was the same map as the relevant ASS risk map and submitted that there was no evidence that the Smith farm fell within the area coloured green on the PPA map. He also submitted that the Aquaculture Strategy makes it plain that PPA maps were prepared as part of project profile analyses that had been carried out for the purposes of sustainable aquaculture according to SEPP 62. Accordingly, as the PPA maps were prepared for a purpose different to ASS risk maps, it would be dangerous, in the absence of appropriate evidence, to have regard to them.

98 The significance of the PPA maps was not explored before Sheahan J and there is substance in Mr Robertson’s submissions. It is, however, not necessary to resolve these issues.

99 Mr Smith’s argument has rational force but I do not think it can be accepted.

100 Mr Smith’s argument that, if the construction advanced by Ms Chambers were to be accepted no aquaculture could be permitted on Palmers lsland (as his farm was on the highest point of the Island), is answered by Mr Robertson’s submission that there were areas within Palmers Island that fell within the requisite minimum performance criteria and, indeed, large portions of the Smith’s farm are within those criteria. Thus, aquaculture could be permitted on Palmers Island within those areas that fall within the minimum performance criteria and, had the Smiths’ development application related only to those areas on their site that fell within the minimum performance criteria, there would be no basis for Ms Chambers’ present objection. The fact is that the Smiths’ development application embraced not only those portions of their farm that fall within the minimum performance criteria but also the remainder of their farm that do not.

101 In essence, however, Mr Smith’s argument that “area” means the areas designated on the ASS risk maps applicable cannot be upheld as, once the note to cl 4 of Schedule 1 is not taken into account in construing the clause, there is no foundation for such a construction in the words of the clause itself.

102 The effect of cl 4 of SEPP 62 is that the note in cl 4 of Schedule 1 is merely a possible guide to the AHD. The inference from cl 4 of Schedule 1 is that site specific AHD are required.

103 This inference is reinforced by the fact that, while cl 4 of Schedule 1 provides for an area that is above 1 metre AHD and below 10 metres AHD, the ASS risk map concerned does not demarcate areas that are above 4 metres but below 10 metres AHD.

104 There is nothing in SEPP 62 that warrants “area” in cl 4 of Schedule 1 being determined by reference to a PPA map.

105 Thus, in my opinion, the words of cl 4 of Schedule 1 read with SEPP 62 as a whole do not permit of the construction propounded by Mr Smith.

The effect of the amendment to SEPP 62 (Amendment No 1)

106 Mr Maston sought to rely on an amendment to SEPP 62, namely, State Environmental Planning Policy No 62 – Sustainable Aquaculture (Amendment No 1) published on 20 December 2002. I shall refer to this amendment as “Amendment No 1”.

107 Amendment No 1 was published and came into force after Sheahan J had delivered his judgment.

108 Amendment No 1 amended cl 7(2) of SEPP 62 so that it reads:

“A person may carry out any such aquaculture development with development consent if in the opinion of the consent authority it complies with the site location and operational requirements set out in Schedule 1 for the development (the minimum performance criteria).”

The underlined words were inserted by the amendment.

109 Amendment No 1 also deleted the existing cl 4 of Schedule 1 and substituted the following:

“ Elevation Australian Height Datum (AHD) for tank-based aquaculture and fresh water pond-based aquaculture :
Within an area the mean elevation of which is above 1m AHD”.

110 It also deleted the existing cl 3 of Schedule 1 to SEPP 62 and provided that acceptable areas for estuarine pond-based aquaculture were:

“Within an area coloured green on estuarine aquaculture maps deposited in the head office of the Department of Planning and marked as follows:
…”

The “estuarine aquaculture maps,” we were informed, were PPA maps.

111 Mr Maston submitted that Amendment No 1 has the following effects:

(a) It provides that consent authorities are entitled to form an opinion as to whether a proposed aquaculture development complies with the site location and operational requirements specified in the minimum performance criteria.

(b) It provides for “acceptable areas for estuarine pond-based aquaculture” and, as the Smith farm falls within an area coloured green on an estuarine aquaculture map deposited in the head office of the Department of Planning and marked in accordance with Amendment No 1, the Smith farm is such an “acceptable area”.

(c) The Smith farm complies with the new minimum performance criteria.

112 Mr Maston submitted that Amendment No 1 affects the present appeal in the following ways:

(a) By now making clear that the Smiths’ development is permissible; and

(b) By clarifying that the Council’s decision as to permissibility does not involve jurisdictional fact and that review is limited to conventional judicial review; and

(c) Providing an “overwhelming” discretionary consideration for refusing leave to appeal.

113 These arguments hinge on the application of Amendment No 1 to the present proceedings. In this regard, Mr Maston referred to cl 18 of the amendment which provides:

“The amendments made to this Policy by [Amendment No 1] extend to a development application made but not finally determined before the amendments commence”.

He submitted that, by cl 18, Amendment No 1 applied to the Smiths’ development application.

114 Mr Maston contended further that, as the Council’s consent to the Smiths’ development application is susceptible to being set aside by this Court (and was, earlier, susceptible to being set aside by the Land and Environment Court), the development application should be regarded as not having been finally determined. In the alternative, he submitted that, as a matter of discretion, the relief sought by Ms Chambers should be refused as, even if she were to be successful, the only outcome would be a procedural requirement for the Smiths to lodge a fresh development application that would fall within the amended SEPP 62, and that fresh application would inevitably succeed.

115 I am unable to accept these submissions.

116 Firstly, it is to be noted under the Act, that there is no appeal from the decision of the Council. The matter came before the Land and Environment Court by way of judicial review and to this Court by way of appeal from those review proceedings. In these circumstances, no fresh decision in regard to the development application is capable of being made either by the Land and Environment Court or this Court. Judicial review does not involve the making of a new decision. In my opinion, the Council’s decision finally determined the development application. Clause 18 has no application.

117 In any event, once it is accepted that the Smiths’ application for development consent did not meet the minimum performance criteria, the development concerned was a prohibited development and the Council had no power to consent to it. The consent given by the Council was accordingly invalid. In Hawkesbury City Council v Sammut (2002) 119 LGERA 171 at 181, Mason P (with whom Powell JA and Young CJ in Eq agreed) said:

“A consent is an administrative act that generates significant rights. The necessary power must exist at the time the consent is given. There is a world of difference between allowing that power to turn in futuro upon prior events or matters (something that is commonplace) and altering the legal effect of a failed attempt to use the power by breathing retrospective life into a void consent and thereby altering legal rights stemming from the date of its purported exercise”.

His Honour referred to the well-known statement of Dixon CJ in Maxwell vMurphy (1957) 96 CLR 261 at 267:

“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events”.

118 I do not regard cl 18 as indicating with reasonable certainty that it applies so as to resuscitate an invalid consent to a development application.

119 It is also relevant to note that Amendment No 1 came into force after Ms Chambers had commenced proceedings. Accordingly, the rule expressed by Kitto J in Continental Liqueurs Pty Limited v G F Heublein & Bros Inc (1960) 103 CLR 422 at 427 is of application. His Honour said:

“[W]hen the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights”.

120 In my opinion, cl 18 of SEPP 62, as introduced by Amendment No 1, shows no intention to vary the rights of parties who have begun legal proceedings prior to the coming into force of the amendment.

121 In the circumstances I do not think that Amendment No 1 had any application to the rights of the parties to the present litigation.

122 I am not persuaded by the argument as to discretionary considerations based on Amendment No 1. There are new considerations which may come into play should a fresh application be made. There is no certainty that such an application would be granted. Speculation about a new application is not a sound basis for the exercise of discretionary considerations when the court has concluded that a consent given by the Council to a development application is invalid.

Other discretionary considerations

123 Finally, Mr Maston raised other discretionary considerations. He referred to the Council’s points of defence to Ms Chambers’ amended points of claim in which the Council pleaded that the Court ought not, in the exercise of its discretion, grant the relief sought by Ms Chambers or should, in the alternative, defer making any orders.

124 Particulars were given to this defence. The first particular, in effect, seeks to rely on Amendment No 1 and asserts that the effect of that amendment would be that the development consent was validly granted. The second particular is that the effect of Amendment No 1 would be that the development consent “would have been validly granted if granted after the amendment”. The third particular is that “the development consent was consistent with the object and purpose of SEPP 62”. The fourth particular is that “no environmental harm will occur if the development is carried out in accordance with the conditions of consent”.

125 As regards the first particular, I have already concluded that Amendment No 1 does not have the effect that the development consent was validly granted.

126 As regards the second particular, I have concluded that there is significant uncertainty as to whether the Council will grant development consent if a fresh application by the Smiths is now made.

127 As regards the third particular, I am quite unable to conclude that the development consent was consistent with the object and purpose of SEPP 62. In my opinion, on the construction of cl 4 that I prefer, the development consent was not so consistent.

128 Similarly, as regards the fourth particular, I am not able to conclude that no environmental harm will occur if the development is carried out in accordance with the conditions of consent.

129 Mr Maston submitted that it would be open to the Land and Environment Court, having regard to the principles expressed in Warringah ShireCouncil v Sedevcic (1987) 10 NSWLR 335, to refuse, on discretionary grounds, to make orders as claimed by Ms Chambers. In my opinion, on the grounds pleaded in the Council’s defence, it has no prospect of success on this issue.

130 Accordingly, I would not uphold the Council’s reliance on discretionary considerations.

The relief to be granted

131 Ms Chambers sought leave to amend her notice of appeal by claiming declarations that the Smiths’ development application was a “prohibited development” and that it was void and of no effect. The amendments sought raise only questions of law and in my opinion should be granted.

132 I have concluded that the Smiths’ development application was indeed a prohibited development. It follows that their development application was of no legal force or effect.

133 I have also concluded that the Council had no power to consent to the development application. Ms Chambers is entitled to a declaration that the consent is invalid.

134 As regards costs, there are some comments that I believe should be made.

135 I have noted that the Council knew before consenting to the Smiths’ development application that 40% of the Smith farm would be below 1 metre AHD. Despite this, and the inappropriateness of using the ASS risk map as a means of determining site specific measurements, the Council relied on that map in determining that the minimum performance criteria had been met. When the Council officers reported on the application (on 11 July 2001) they noted:

“Survey details submitted by the applicant indicated that a sizable portion of the subject property is in fact below 1m AHD”.

Nevertheless the Council resolved to grant consent.

136 Mr and Mrs Smith relied on the Council and its officers. They did whatever the Council told them to do. The Council laid down the requirements for the development application and Mr and Mrs Smith followed them to the letter. Not only were they informed by those in authority that they were proceeding in an appropriate way in order to obtain a valid consent, but, once the consent had been granted, they relied on the assertion of the Council that that consent was valid. This has led, unfortunately, to Mr and Mrs Smith expending much time and expense in a futile exercise.

137 The position of Mr and Mrs Smith evokes sympathy. Nevertheless, none of the considerations I have mentioned has a bearing on Ms Chambers’ right to a costs order against them in regard to the appeal. As I have indicated, they took an active part in the appeal and advanced arguments that differed from those of the Council. On ordinary principles they must be liable, with the Council, for the costs of the appeal.

138 Mr and Mrs Smith did not take any active part in the proceedings in the Land and Environment Court and no order should be made against them in respect of those costs. I consider that the Council should pay the costs of the proceedings in that Court.

139 Accordingly, I propose the following orders:

(1) The amendment sought by Ms Chambers to the notice of appeal be allowed.

(2) The appeal be allowed.

(3) The orders made by Sheahan J be set aside.

(4) A declaration be made that, as at 11 July 2001, the development of Lot 12 Deposited Plan 1009500 School Road, Palmers Island as a prawn farm and research station was a prohibited development.

(5) A declaration be made that the development application lodged by Mr and Mrs Smith and the development consent LDA No 2000/0585 issued to Mr and Mrs Smith by the Council on 11 July 2001 for the establishment of a prawn farm and research station is void and of no effect.

(6) The Council and Mr and Mrs Smith pay Ms Chambers’ costs of the appeal.

(7) The Council and Mr and Mrs Smith to have a certificate under the Suitors Fund Act if otherwise entitled.

(8) The Council to pay Ms Chambers’ costs of the proceedings in the Land and Environment Court.

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Last Modified: 06/17/2003