City of Ryde Council v Principal Healthcare Finance Pty Ltd (No 3)

[2018] NSWLEC 12

Land and Environment Court

New South Wales

Medium Neutral Citation:	City of Ryde Council v Principal Healthcare Finance Pty Ltd (No 3) [2018] NSWLEC 12
Hearing dates:	24 October 2017
Date of orders:	23 February 2018
Decision date:	23 February 2018
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	Appeal dismissed. See paragraph [123]
Catchwords:	APPEAL: Appeal from the making of consent orders by a Commissioner to conclude a Class 1 appeal – whether such orders can or should be set aside – whether appellant is estopped from appealing orders to which it consented – statutory interpretation – conditions of consent – whether key issue was raised at first instance – consideration of objector concerns.
Legislation Cited:	Access to Neighbouring Land Act 2000 Aged Care Act 1997 (Cth) Civil Procedure Act 2005 Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Land and Environment Court Act 1979 Local Government Act 1993 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Uniform Civil Procedure Rules 2005
Cases Cited:	Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83 City of Ryde Council v Principal Healthcare Finance Pty Ltd [2017] NSWLEC 126 City of Ryde Council v Principal Healthcare Finance Pty Ltd (No 2) [2017] NSWLEC 134 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 Dial a Dump Industries Pty Limited v Roads and Maritime Services [2017] NSWCA 73 Director-General of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Gray v Sutherland Shire Council [2016] NSWLEC 64 Grygiel v Baine [2005] NSWCA 218 Hawkesbury City Council v Sammut [2002] NSWCA 18 Hoy v Coffs Harbour City Council (2016) 2018 LGERA 411; [2016] NSWCA 257 Logwon Pty Limited v Warringah Shire Council (1993) 33 NSWLR 13 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde (2016) 222 LGERA 212; [2016] NSWLEC 153 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Segal v Waverley Council [2005] NSWCA 310 Singh v The Commonwealth (2004) 222 CLR 322; [2004] HCA 43 Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 Sydney City Council v Zizza (1989) 67 LGRA 224 Symon v Hornsby Shire Council [2015] NSWLEC 1028 Tanious v Georges River Council [2016] NSWLEC 142 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 The Commonwealth v Verwayen (1990) 170 CLR 394 The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc and Another [2014] NSWCA 105 (2014) 86 NSWLR 527 Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23
Category:	Principal judgment
Parties:	City of Ryde Council (Appellant) Principal Healthcare Finance Pty Limited (Respondent)
Representation:	Counsel: Mr C Leggat, SC with Mr H El-Hage, barrister (Appellant) Ms S Duggan, SC (Respondent)   Solicitors: Holding Redlich (Appellant) Mills Oakley Lawyers (Respondent)
File Number(s):	2017/225184
Decision under appeal	Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 1 Citation: Principal Healthcare Finance Pty Ltd v City of Ryde Council [2017] NSWLEC 1300 Date of Decision: 23 May 2017 Before: Brown C File Number(s): 2016/152633

Judgment

Introduction

1. City of Ryde Council (“Council”) has appealed against orders made by a Commissioner of the Court on 23 May 2017 (Principal Healthcare Finance Pty Ltd v City of Ryde Council [2017] NSWLEC 1300).

2. The orders now appealed were made by the Commissioner, with the consent of both parties to the relevant Class 1 appeal.

3. The Commissioner noted, under the heading “Consent Orders” (at [8] – [9]):

8   The Court’s Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides [at 99]:

99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account.

Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

9   In summary, the Practice Note requires:

evidence to show that approval is lawful and appropriate including whether any statutory provisions have been complied with;

whether any objection has properly been taken into account; and

whether reasonable notice has been given to all persons who objected to the proposal, the date of the hearing and the opportunity to be heard at the hearing.

4. One of the objects of the Environmental Planning and Assessment Act 1979 (“EPAA”) is (s 5(c)):

to provide increased opportunity for public involvement and participation in environmental planning and assessment.

5. The question before the Court in this appeal is whether a particular condition attached by the consent orders to the development consent (condition 16) could be validly imposed having regard to a particular clause (cl 18) in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“the SEPP”)

The Project and the Class 1 Appeal

6. The subject development proposal was lodged with Council on or about 26 or 30 September 2014 (and subsequently amended), and concerned redevelopment of a site at 8-14 Sherbrooke Road and 78-82 Mons Avenue, West Ryde, by Principal Healthcare Finance Pty Ltd (“PHF”) as a “residential aged care facility” intended to operate 24 hours, 7 days per week.

7. The proposal was referred to the Sydney East Joint Regional Planning Panel (“JRPP”), and fell for its consideration in the context of the SEPP.

8. On 19 November 2015, the JRPP refused the application, and, on 28 April 2016, PHF lodged a Class 1 appeal in this Court (matter No. 2016/152633), pursuant to s 97(1) of the EPAA.

9. During the argument of the present s 56A appeal, counsel drew the Court’s attention to several leading cases which discuss how this Court deals with such matters, e.g. in Segal v Waverley Council (“Segal”) [2005] NSWCA 310, Tobias JA discussed the “adversarial” nature of proceedings and the role of the Commissioners; and in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802, Preston ChJ discussed the role to be played by objectors and the weighing of their views.

10. In due course, Commissioner Brown was appointed by the Chief Judge to deal with the Class 1 appeal in the present case.

11. A Commissioner’s powers on such Class 1 appeals are set out in s 39 of the Land and Environment Court Act 1979 (“the Court Act”), which provides:

39   Powers of Court on appeals

(1)   In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)   In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)   An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)   In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)   The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6)   Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body:

(a)   the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b)   in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A)   Notwithstanding any other provision of this section, if an appeal relates to an application made to a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and the application relates to integrated development within the meaning of section 91 of that Act:

(a)   the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body within the meaning of section 90A of that Act, and

(b)   the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to inform the consent authority whether or not it will grant its approval, and

(c)   the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body.

Section 93 of that Act applies to a development consent granted as a result of the appeal.

(7)   The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

12. It is important to note at this point some relevant events between the filing of the Class 1 appeal on 28 April 2016 and the hearing of the s 56A appeal on 24 October 2017.

A Separate Question was raised and determined in the Class 1 Appeal

13. On 8 June 2016, Pain J ordered that the following question be determined, separately from, and prior to, the hearing of the Class  1 proceedings:

Whether clause 26 of the [SEPP] is a development standard amenable to clause 4.6 of the Ryde Local Environmental Plan 2014 [(“the LEP”)] or a prohibition.

14. Clause 26 of the SEPP deals in detail (see [60] below) with the location of a proposed development, in the context of its access to “facilities”, specified as:

(a)   shops, bank service providers and other retail and commercial services that residents may reasonably require, and

(b)   community services and recreation facilities, and

(c)   the practice of a general medical practitioner.

15. Clause 4.6 of the LEP relevantly provides:

Exceptions to development standards

(1)   The objectives of this clause are as follows:

(a)   to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)   to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)   Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)   Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)   that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)   that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)   Development consent must not be granted for development that contravenes a development standard unless:

(a)   the consent authority is satisfied that:

(i)   the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)   the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)   the concurrence of the Secretary has been obtained.

(5)   In deciding whether to grant concurrence, the Secretary must consider:

(a)   whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)   the public benefit of maintaining the development standard, and

(c)   any other matters required to be taken into consideration by the Secretary before granting concurrence.

...

(7)   After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3).

...

16. The separated question came before Robson J on 5 August 2016, and His Honour answered it, in the affirmative, in a judgment delivered on 2 December 2016 (Principal Healthcare Finance Pty Ltd v Council of the City of Ryde (2016) 222 LGERA 212; [2016] NSWLEC 153). His Honour found that cl 26 of the SEPP “is a development standard amenable to cl 4.6 ...” ([78]).

17. I respectfully note and accept His Honour’s reasoning, but need say no more about his decision for the purpose of deciding the present appeal.

18. At that stage of this litigation, Mr Galasso SC (and E Tringali) represented PHF, and Dr S Berveling of counsel represented Council.

19. I note that Mr Galasso and Dr Berveling also appeared before Brown C, but not before either Molesworth AJ, on interlocutory matters concerning the present appeal, in September and early October 2017, or myself on the hearing of this appeal, on 24 October 2017.

The making of Consent Orders in the Class 1 Appeal

20. As already noted, the subject consent orders were made on 23 May 2017, after a site visit and a hearing, on 22 May 2017.

21. The transcript (“T”) of the hearing before Brown C is before the Court on this appeal (Appeal book (”AB”) Tab 3) and I have examined it closely.

22. The Commissioner heard from residents, on site (see Tp6, LL6 – 7); a “Residents’ bundle” of documents was tendered by counsel for the Council (Exhibit 5); and the learned Commissioner also had before him the original objections received by Council (included in Exhibit 1 – see Tp6, LL7 – 22).

23. Most of the hearing was occupied by Mr Galasso’s address on behalf of PHF, but, at the end of the hearing, Dr Berveling, for the Council, reminded the Commissioner that s 79C(1)(d) of the EPAA required the Court to take into consideration “submissions made in accordance with this Act or regulations”, and drew attention to those included in Exhibit 1, and those that “were made on site which generated Exhibit 5” (see Tp17, LL34 – 41).

24. The learned Commissioner noted in his judgment (at [1] – [4] – emphasis mine):

1   COMMISSIONER: This is an appeal against the refusal of local development application number LDA2014/0419 that provides for the demolition of the existing aged care facility, improvements on other lots and construction of a new aged care facility at 8-14 Sherbrooke Road and 78-82 Mons Avenue, West Ryde (the site).

2   The Amended Statement of Facts and Contentions provided by the council maintains that the application should be refused for the following reasons;

1. the cl 4.6 written request to vary cl 26 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) in relation to access to facilities is not well founded.

2. the cl 4.6 written request to vary cl 40 of the SEPP in relation to building height is not well founded.

3. the site planning and built form are contrary to the zone objectives and cl 33 of the SEPP.

3   A number of residents provided evidence on the site inspection, and supported the reasons given by the council, plus the following additional matters:

1. privacy and overlooking.

2. noise.

3. additional traffic and parking and consequent safety issues.

4. inadequate access to car park and loading dock.

5. construction traffic.

6. waste collection.

7. asbestos removal.

8. emergency egress and assembly area.

4   Prior to the hearing, the parties agreed to enter into consent orders. A report was prepared by experts Mr Robert Chambers, a town planner, and Mr Alan Cadogan, an urban designer for the applicant, and Mr Jeff Mead, a town planner, and Ms Gabrielle Morrish, an urban designer for the Council. The report addressed those matters raised in the Statement of Facts and Contentions, and concluded that with the further amendment provided by the applicant, there were no matters left in dispute however the residents stated that their concerns remained.

25. He went on to describe the site ([5] – [7]), the relevant controls ([10] – [11]), the application of cl 4.6 of the LEP ([12] – [14]), and the issues of “bulk form and site planning” ([16]). He concluded (at [15] and [17]):

15   Having reviewed the cl 4.6 written request and with the benefit of the site inspection, I concur with the conclusions of the experts that the variations to the different height standards can be supported.

...

17   Again, with the benefit of the site inspection, and an understanding of the amended plans, I concur with the conclusions of the experts.

26. He then addressed “Resident concerns” in these terms ([18] – [26]):

18   Loss of privacy and overlooking concerns are addressed through the substantial setbacks provided to the adjoining residential properties. Appendix 5 details these setbacks, and when combined with existing landscaping, I am satisfied that any impacts associated with overlooking could not justify the amendment or refusal of the application;

19   Noise is addressed through a noise impact assessment by Acoustic Logic, (Exhibit C, Tab 6), where the conclusion states,

Traffic noise intrusions into the residential units of the proposed Opal Fernleigh aged care development at Sherbrooke Road, West Ryde, have been assessed in this report. The acoustic assessment has revealed that it is both possible and practical to acoustically treat the proposed development such that internal noise levels comply with the relevant noise level criterion. Noise emissions objectives for the site have been determined based on on-site noise measurements and noise emission guidelines as per the EPA's industrial noise policy, and have been presented.

20   In the absence of any expert evidence to refute these conclusions, I accept that any noise associated with the proposed development would not warrant the amendment or refusal of the application. I also note that condition 64 requires a further acoustic report to be submitted with the construction certificate plans to address methods of minimising the impact from residential noise, including the southern dementia courtyard, condition 65 addresses any noise from the proposed roller shutter, condition 80 addresses construction noise and condition 81 requires the provision of a noise management plan.

21   Traffic and parking is addressed in two reports by Taylor Thomson Whitting where it concludes that (Exhibit 3 Tab 8):

In traffic and transport engineering terms, the proposed development is acceptable and supportable and will have no adverse impact on the road system and parking conditions for the general operational activities of the site.

22   This was a conclusion also reached by the council engineering staff, and in the absence of expert evidence to refute these conclusions, I accept that the proposal will not generate any unacceptable traffic and parking impacts.

23   Construction traffic is addressed in condition 31 through the need to provide a demolition traffic management plan and condition 51 that requires a construction management plan.

24   Waste collection is addressed through condition 29, and requires the provision of a waste management plan.

25   Asbestos removal is addressed in conditions 26, 27 and 28 and any removal is to be carried out in accordance with the requirements of WorkCover and the EPA.

26   Emergency access is addressed in the preliminary BCA Assessment Report, by Blackett Maguire and Goldsmith,(Exhibit 3, Tab 17) and the accessibility report by Accessibility Solution NSW Pty Ltd (Exhibit 3, Tab 18) where no issue was raised in either report in relation to the relevant requirements of the BCA or Australian Standards.

and concluded (at [27]):

27   I am satisfied that the other matters required to be addressed in the Practice Note have be satisfactorily addressed on notification and the opportunity to address the Court. Consequently, there is no reason why the consent orders should not be made.

27. The Court’s approval was granted on conditions which (i) had been agreed between the parties, (ii) had been filed on 19 May 2007 by PHF, and (iii) included the following (AB tab 41, fol 1669), which are central to the present appeal:

15.   Restrictions on occupation of the development. Only the kinds of people referred below may occupy the residential care facility:

a)   Seniors or people who have a disability

b)   People who live within the same household with seniors or people who have a disability

c)   Staff employed to assist in the administration of and provision of services to housing provided under this policy.

For the purposes of this condition, Seniors is defined as any of the following;

a)   People aged 55 or more years,

b) People who are resident at a facility at which residential care (within the meaning of the Aged Care Act 1997 of the Commonwealth) is provided.

c)   People who have been assessed as being eligible to occupy housing for aged persons provided by a social housing provider.

For the purposes of this condition, people with a disability is defined as people of any age who have, either permanently of for an extended period, one or more impairments, limitations or activity restrictions that substantially affects their capacity to participate in everyday life.

16.   Further restriction on occupation of the development. Notwithstanding the above condition, the development may only be occupied by residents which require high level care. For the purposes of this condition, high level care means care provided either by registered nurses, or under the supervision of registered nurses, on a 24 hour / day basis to people who need almost complete assistance with most activities of daily living. Nursing care is combined with accommodation, support services (cleaning, laundry and meals), personal care services (help with dressing, eating, toileting, bathing and moving around), and allied health services (such as physiotherapy, occupational therapy, recreational therapy and podiatry).

The present Appeal was brought

28. Council resolved, on 27 June 2017, to bring the present appeal (Exhibit 1), and it was duly brought, on 24 July 2017, pursuant to s 56A of the Court Act, which provides (emphasis mine):

56A   Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners

(1)   A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2)   On the hearing of an appeal under subsection (1), the Court shall:

(a)   remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or

(b)   make such other order in relation to the appeal as seems fit.

(3)   Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

29. As the appellant submits (subs in chief par 21):

... What is clear is that it is not necessary for the question of law to have been explicitly stated and determined in the court below. It is sufficient if the decision was such that resolution of a question of law is manifested by it: Warkworth [Mining Ltd v Bulga Milbrodale Progress Association Inc and Another (Warkworth) [2014] NSWCA 105 (2014) 86 NSWLR 527], at [4]; Director-General of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 (Lambert), at [70]; Grygiel v Baine [2005] NSWCA 218, at [29].

30. The authorities distinguish the test from the expression “error of law”: see Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2017] NSWCA 73 at [6]. Proper construction of a statute or other legislative instrument, or indeed of conditions of consent, involves a question of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456; and Cheetham v Goulburn Motorcycle Club Inc (“Cheetham”) [2017] NSWCA 83.

31. The grounds relied upon in the present s 56A appeal are set out, in the summons filed on 24 July 2017, in these terms:

1   The Appellant appeals from those parts of the decision below where the Commissioner decided to impose condition 16 of the conditions of consent approved by the Commissioner and against condition 16 itself.

2 The Commissioner erred in law (i) in concluding that condition 16 could be validly imposed as part of the conditions of consent and (ii) by deciding to impose condition 16, in circumstances where the terms of clause 18 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 precluded the imposition of condition 16.

3 By reason of the matters set out in paragraph 2 above, and the terms of clause 18 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, the Commissioner was not empowered to approve the Respondent’s development application.

32. The summons seeks to have the “judgement and orders of the Commissioner” set aside, and the proceedings remitted to “a Commissioner for re-consideration of the development application lodged by the Respondent”.

The Evidence on the Present Appeal

33. The AB, jointly submitted by the parties, is in three volumes (“1”, “2”, and “3”). For the record, I note here that the documents intended to be inserted at tabs 32 to 34 were not placed before the Court.

34. PHF, over some objections, relied upon parts of an affidavit (and some exhibits to it, contained in Exhibit “AMC1”), sworn on 5 September 2017 by Ashleigh Cowper, solicitor responsible for the day to day conduct of the proceedings until she proceeded on maternity leave (on 2 June 2017).

35. The exhibits to which Cowper’s evidence refers included (quoting the tab numbers of AMC1):

(A)   Council’s amended Statement of Facts and Contentions (“ASFC”), dated and filed on 21 February 2017;

(B)   A joint report of the parties’ respective town planning and urban design experts (Chalmers, Cadogan, Mead, and Morrish), filed on 1 May 2017 and indicating “no disagreement” among them;

(C) to (G)   Various emails sent or received by Cowper, between 1 and 11 May 2017. Notably, these materials confirm that, at its meeting on Tuesday 9 May 2017, Council agreed to resolve the Class 1 proceedings by way of Consent Orders, “rather than a contested hearing” (tab F, fol 165), and was intending to inform objectors accordingly. The Court was to be notified that the ASFC was “no longer pressed”. Council required that the Consent Orders hearing commence on site;

(H)   Council’s “without prejudice” draft conditions of consent, forwarded to Cowper on 10 May 2017;

(I)   An email exchange between representatives of the parties on 19 May 2017, confirming that the Council’s conditions in (H) were “draft”, but were (now) not to be regarded as “without prejudice”;

(J)   “Draft Conditions of Consent in Reply”, filed for PHF on 19 May 2017; and

(K)   The submissions of objecting residents, as updated, and provided to Commissioner Brown during the on-site component of his “Consent Orders” hearing on 22 May 2017.

36. Cowper deposed (par 19):

To the best of my knowledge and belief, the Council did not, at any stage prior to or during the proceedings raise the issue of:

(a)   the validity of proposed Condition 16 that is the subject of this s 56A appeal;

(b) Clause 18 of the State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (SEPP); or

(c)   the proposed restriction on the use of the proposed development for ‘high care’ purposes.

37. She went on to describe the consent orders hearing before Brown C, on 22 May 2017, at which PHF was represented by Adrian Galasso SC, and the primary spokesperson for the objectors, Gideon Reiss, addressed the Court. She lists (in pars 24 to 27) the issues raised on site by the resident objectors.

A “Strike-out” Application is made and rejected, in respect of the present appeal

38. On 25 August 2017, PHF sought, by Notice of Motion (“NOM”), the summary dismissal of the present appeal, on what Molesworth AJ described as “two inter-related bases: first, because they disclose no reasonable cause of action, and, secondly, because they constitute an abuse of process”.

39. His Honour was subsequently asked (by competing NsOM) to set aside various Notices to Produce issued by PHF. He dismissed the NsOM (City of Ryde Council v Principal Healthcare Finance Pty Ltd [2017] NSWLEC 126). At that stage, Council was represented by Ms A Rose, and PHF by Sandra Duggan SC.

40. His Honour proceeded to hear, and to dismiss on 6 October 2017 (City of Ryde Council v Principal Healthcare Finance Pty Ltd (No 2) [2017] NSWLEC 134), the application for the dismissal of the proceedings pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (“the UCPR”).

41. Again Ms Duggan appeared for PHF, as she did later before me, but Council was represented by Mr C J Leggat SC and Mr H El-Hage, who have since conducted the appeal before me.

42. PHF argued that Council “should be estopped or barred from raising the relevant issues the subject of the appeal”, and that it would be “inappropriate to invalidate the process of the Court through a change of mind of the consenting party” (at [6]).

43. I do not stay now to rehearse again the arguments that failed before Molesworth AJ, save to the extent that they have formed the basis for submissions now made before me at the hearing of the s56A appeal.

44. His Honour noted (at [50]):

In particular, Healthcare maintains that: (1) the Commissioner "raised no error of law" in imposing Condition 16 because the legality of imposing Condition 16 was not an issue in dispute, (2) the Appellant Council should be estopped from appealing the validity of a condition of consent that it consented to the Commissioner making, and (3) the Appellant Council should be prevented from raising a question of law on appeal that was not raised before the Commissioner.

45. At the very forefront of her submissions on the present appeal before me, Ms Duggan raised, as “preliminary hurdles” for PHF to overcome, the estoppel point, and the argument that a party cannot raise a matter on appeal which was not run at first instance, to which submissions I will return.

46. However, it is also to be noted that His Honour put to counsel, during the hearing (at [24]), a possible resolution of the appeal, which was not found acceptable.

47. Ms Duggan subsequently put an offer to Council, in open Court, which His Honour described in these terms ([26]):

Ms Duggan, senior counsel for Healthcare, then made an offer, without admissions, in open court to consent to the following orders:

1. The notice of motion filed by [Healthcare] on 25 August 2017 is dismissed.

2. The [Appellant Council’s] summons filed on 24 July 2017 is upheld in part.

3. The terms of condition 16 of the Development Consent granted by the Court on 23 May 2017 be amended as follows – and that would be the wording your Honour indicated to us this morning. 4. The summons be otherwise dismissed. 5. Each party pay its own costs of the notice of motion and the summons.

48. Council did not accept that offer, and, no agreement having been reached, His Honour dismissed PHF’s NOM, saying (at [67] and [68]):

67   Hence, these s 56A appeal proceedings do not constitute an abuse of process for the reasons articulated by Healthcare. The Appellant Council has done nothing more than exercise its entitlement to appeal a decision of the Court on the basis of an identified cause of action which it believes has merit.

68   The fact that the Appellant Council, inter alia, agreed to the disposal of the proceedings by way of consent orders and may not have raised the matters the subject of the appeal at first instance, may ultimately prove to be insurmountable obstacles for the Appellant Council. Yet, these circumstances do not mean that the proceedings are an abuse of process and should be summarily dismissed.

49. His Honour declined to make any orders for costs in either of his judgments.

50. The s 56A appeal then came on for hearing before me, on 24 October 2017.

51. Before I come to the arguments presented, and the principles to apply, on the present appeal, I must now set out the relevant statutory and other provisions involved.

Relevant Legislation and Planning Instruments

52. I have already referred to s 5 of the EPAA ([4] above), s 39 of the Court Act ([11] above), and the relevant LEP ([15] above).

53. The environmental planning instrument most central to the arguments in this appeal is the SEPP, to which I have already referred ([5]),and which I shall now address in some detail.

The SEPP

54. The aims of the SEPP are set out in cl 2:

Aims of Policy

(1)   This Policy aims to encourage the provision of housing (including residential care facilities) that will:

(a)   increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b)   make efficient use of existing infrastructure and services, and

(c)   be of good design.

(2)   These aims will be achieved by:

(a)   setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and

(b)   setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and

(c)   ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.

55. The interpretation provision (cl 3) includes the following definition (in 3(1)):

dwelling means a room or suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile.

56. Clause 4(1) provides:

Land to which Policy applies

(1)   General

This Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if:

(a)   development for the purpose of any of the following is permitted on the land:

(i)   dwelling-houses,

(ii)   residential flat buildings,

(iii)   hospitals,

(iv)   development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries, or

(b)   the land is being used for the purposes of an existing registered club.

57. Clause 5(3) provides:

Relationship to other environmental planning instruments

...

(3)   If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.

58. Chapter 2 amplifies “Key Concepts”, and it is appropriate to now set out cls 8 to 13:

8   Seniors

In this Policy, seniors are any of the following:

(a)   people aged 55 or more years,

(b)   people who are resident at a facility at which residential care (within the meaning of the Aged Care Act 1997 of the Commonwealth) is provided,

(c)   people who have been assessed as being eligible to occupy housing for aged persons provided by a social housing provider.

9   People with a disability

In this Policy, people with a disability are people of any age who have, either permanently or for an extended period, one or more impairments, limitations or activity restrictions that substantially affect their capacity to participate in everyday life.

10   Seniors housing

In this Policy, seniors housing is residential accommodation that is, or is intended to be, used permanently for seniors or people with a disability consisting of:

(a)   a residential care facility, or

(b)   a hostel, or

(c)   a group of self-contained dwellings, or

(d)   a combination of these,

but does not include a hospital.

Note. The concept of seniors housing is intended to be a shorthand phrase encompassing both housing for seniors and for people with a disability. This Policy deals with both kinds of housing.

Accommodation provided by seniors housing does not have to be limited to seniors or people with a disability. Clause 18 provides that seniors housing may be used for the accommodation of the following:

(a)   seniors or people who have a disability,

(b)   people who live within the same household with seniors or people who have a disability,

(c)   staff employed to assist in the administration of and provision of services to housing provided under this Policy.

Relevant classifications in the Building Code of Australia for the different types of residential accommodation are as follows:

(a)   Class 3, 9a or 9c in relation to residential care facilities,

(b)   Class 1b or 3 in relation to hostels,

(c)   Class 1a or 2 in relation to self contained dwellings.

11   Residential care facilities

In this Policy, a residential care facility is residential accommodation for seniors or people with a disability that includes:

(a)   meals and cleaning services, and

(b)   personal care or nursing care, or both, and

(c)   appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care,

not being a dwelling, hostel, hospital or psychiatric facility.

Note. The Aged Care Act 1997 of the Commonwealth requires residential care facilities to which that Act applies to meet certain requirements.

12   Hostels

In this Policy, a hostel is residential accommodation for seniors or people with a disability where:

(a)   meals, laundering, cleaning and other facilities are provided on a shared basis, and

(b)   at least one staff member is available on site 24 hours a day to provide management services.

Note. A facility may be a hostel (as defined by this Policy) even if it does not provide personal care or nursing care to its residents. A facility that provides such care may be a residential care facility (as defined by this Policy), regardless of how the facility may describe itself.

13   Self-contained dwellings

(1)   General term: “self-contained dwelling”

In this Policy, a self-contained dwelling is a dwelling or part of a building (other than a hostel), whether attached to another dwelling or not, housing seniors or people with a disability, where private facilities for significant cooking, sleeping and washing are included in the dwelling or part of the building, but where clothes washing facilities or other facilities for use in connection with the dwelling or part of the building may be provided on a shared basis.

(2)   Example: “in-fill self-care housing”

In this Policy, in-fill self-care housing is seniors housing on land zoned primarily for urban purposes that consists of 2 or more self-contained dwellings where none of the following services are provided on site as part of the development: meals, cleaning services, personal care, nursing care.

(3)   Example: “serviced self-care housing”

In this Policy, serviced self-care housing is seniors housing that consists of self-contained dwellings where the following services are available on the site: meals, cleaning services, personal care, nursing care.

59. Chapter 3 deals with “Development for seniors housing”, and Part 1 “General”, of that chapter, includes the following (emphasis added)

14   Objective of Chapter

The objective of this Chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age.

15   What Chapter does

This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy:

(a)   development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and

(b)   development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing.

16   Development consent required

Development allowed by this Chapter may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent.

...

18   Restrictions on occupation of seniors housing allowed under this Chapter

(1)   Development allowed by this Chapter may be carried out for the accommodation of the following only:

(a)   seniors or people who have a disability,

(b)   people who live within the same household with seniors or people who have a disability,

(c)   staff employed to assist in the administration of and provision of services to housing provided under this Policy.

(2)   A consent authority must not consent to a development application made pursuant to this Chapter unless:

(a)   a condition is imposed by the consent authority to the effect that only the kinds of people referred to in subclause (1) may occupy any accommodation to which the application relates, and

(b) the consent authority is satisfied that a restriction as to user will be registered against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act 1919, limiting the use of any accommodation to which the application relates to the kinds of people referred to in subclause (1).

(3)   Subclause (2) does not limit the kinds of conditions that may be imposed on a development consent, or allow conditions to be imposed on a development consent otherwise than in accordance with the Act.

60. Part 2 of ch 3 sets out various “site-related requirements”, and they include, importantly for present purposes, cl 26, which was the subject of Robson J’s decision, and was mentioned above (at [14]), but which I should here set out in full:

Location and access to facilities

(1)   A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to:

(a)   shops, bank service providers and other retail and commercial services that residents may reasonably require, and

(b)   community services and recreation facilities, and

(c)   the practice of a general medical practitioner.

(2)   Access complies with this clause if:

(a)   the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway are also acceptable:

(i)   a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time,

(ii)   a gradient of no more than 1:10 for a maximum length of 5 metres at a time,

(iii)   a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time, or

(b)   in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area)—there is a public transport service available to the residents who will occupy the proposed development:

(i)   that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and

(ii)   that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and

(iii)   that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive),

and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or

(c)   in the case of a proposed development on land in a local government area that is not within the Greater Sydney (Greater Capital City Statistical Area)—there is a transport service available to the residents who will occupy the proposed development:

(i)   that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and

(ii)   that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and

(iii)   that is available both to and from the proposed development during daylight hours at least once each day from Monday to Friday (both days inclusive),

and the gradient along the pathway from the site to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) complies with subclause (3).

Note. Part 5 contains special provisions concerning the granting of consent to development applications made pursuant to this Chapter to carry out development for the purpose of certain seniors housing on land adjoining land zoned primarily for urban purposes. These provisions include provisions relating to transport services.

(3)   For the purposes of subclause (2) (b) and (c), the overall average gradient along a pathway from the site of the proposed development to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) is to be no more than 1:14, although the following gradients along the pathway are also acceptable:

(i)   a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time,

(ii)   a gradient of no more than 1:10 for a maximum length of 5 metres at a time,

(iii)   a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time.

(4)   For the purposes of subclause (2):

(a)   a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and

(b)   distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway.

(5)   In this clause:

bank service provider means any bank, credit union or building society or any post office that provides banking services.

Another SEPP

61. The Court’s attention was also drawn to cl 6 of SEPP (Affordable Rental Housing) 2009 (“the ARC SEPP”), which provides as follows:

Affordable housing

Note. The Act defines affordable housing as follows:

affordable housing means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument.

(1)   In this Policy, a household is taken to be a very low income household, low income household or moderate income household if the household:

(a)   has a gross income that is less than 120 per cent of the median household income for the time being for the Greater Sydney (Greater Capital City Statistical Area) (according to the Australian Bureau of Statistics) and pays no more than 30 per cent of that gross income in rent, or

(b)   is eligible to occupy rental accommodation under the National Rental Affordability Scheme and pays no more rent than that which would be charged if the household were to occupy rental accommodation under that scheme.

(2)   In this Policy, residential development is taken to be for the purposes of affordable housing if the development is on land owned by the Land and Housing Corporation.

Other legislation

62. Reference was also made to s 32 of the Interpretation Act 1987, which provides:

Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

(1)   An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2)   If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a)   it shall be a valid provision to the extent to which it is not in excess of that power, and

(b)   the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3)   This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.

The Key Principles to apply on this appeal

63. The key principles governing the determination of a s 56A appeal are well settled, and were summarized in my judgment Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55 in these terms (at [5]):

(a)   the appeal is limited to a question of law, and not concerned with errors of fact;

(b)   the error of law must be identified by the Appellant, and shown to be of a sufficiently material character as to vitiate the entirety of the Commissioner’s decision;

(c)   the Commissioner’s reasons must be adequate, but should not be examined with a “fine tooth comb” in an endeavour to discover error; and

(d)   the Court is not to take an overly critical or “pernickety”, legalistic approach in examining the Commissioner’s decision, as if it were written by a lawyer.

64. Pepper J re-stated the principles more fully, in Tanious v Georges River Council [2016] NSWLEC 142, in these terms (at [10], citations omitted):

(a)   first, the appeal is only concerned with errors or questions of law and not questions of fact ...;

(b)   second, an overly critical examination of the Commissioner’s decision for relevant error should not be employed ... The Commissioner’s reasons for the decision must therefore be read as a whole and considered reasonably. A “verbal slip or infelicity of expression does not necessarily warrant drawing and (sic) inference of an error of law” ...;

(c)   third, the Commissioner must give adequate reasons for her decision. This means that she must refer to evidence that is important or critical to the determination of the principal or central issues in the case ... This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it ...;

(d)   fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made ...; and

(e)   fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter ... A party is bound by the way it conducted its case at the hearing …

Summary of Arguments

City of Ryde

65. Council contends that condition 16 ([27] above) could not be validly imposed because an essential precondition to the exercise of power was not satisfied. It submits that the Commissioner was not empowered to approve the development application having regard to cl 18(2) ([59] above), and, by granting consent, acted ultra vires. Council contends that development of the type permitted by condition 16 was not a permitted use. Council relies on Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [9]-[11]; and Cheetham, at [37] per Basten JA.

66. The location of the site for the proposed development was such that the Respondent was unable to meet the requirements of cl 26 of the SEPP ([60] above). Council submits that, since the Respondent was unable to provide the required access to the necessary services, it sought to limit the occupants of the facility to people who “are physically unable to access such services” (Appellant’s subs par 10, referring to Statement of Environmental Effects, Oct 2014), in order to circumvent the requirements specified in cl 26 of the SEPP, and deny access to many of the groups listed under the SEPP, in particular within cl 18(1) ([59] above).

67. Council submits that Brown C was required to ensure occupation of the proposed development by all of the classes of people specified in cl 18(1)(a)-(c), which subclauses are to be read in the conjunctive. To construe sub-clauses 18(1)(a)-(c) in the disjunctive would permit development of housing for persons who are neither “seniors” nor “people with a disability”, and thus fall foul of the stated objective of the SEPP. By providing accommodation for a group of people that is narrower than that included in subclause 18(1), the Commissioner did not comply with subclause 18(2), and, therefore, acted ultra vires.

68. Council listed (at par 57) the instances at the hearing of the matter before Brown C in which an objector, Mr Gideon Reiss, raised non-compliance with the requirements of cl 18 of the SEPP embodied in condition 16, but submits that Mr Reiss’s issues were not properly dealt with by the Commissioner (c.f. the way objector concerns were handled by Moore SC (as His Honour then was) in The Benevolent Society v Waverley Council (“Benevolent”) [2010] NSWLEC 1082, e.g. at [25] and [195] – [217]).

Principal Healthcare

69. PHF submitted, firstly, that Council is estopped from raising the issue the subject of this s 56A appeal due to the representation that Council made to PHF that its concerns about the proposal had been resolved, such that the matter was capable of being concluded by consent orders, and appropriate conditions. PHF submits that it acted in reliance on that representation, and made no submission arguing the legality of condition 16. It would be unconscionable to permit Council to now raise, in an appeal against the orders, the question of the lawfulness of an uncontested condition drafted by Council and presented to the Court as an agreed position.

70. PHF denies that the matter is one that goes to the exercise of any “statutory function, power or discretion, but rather is a relationship akin to a private relationship between the two litigants in the proceedings” (Tp31, LL16-18). Therefore, the Council should be estopped from raising the issue, and the appeal dismissed without any consideration of whether the Commissioner validly made the consent orders and issued Condition 16.

71. PHF submits, secondly, that (1) the matter the subject of this appeal was not raised before the Commissioner, and (2) had the issue been placed in contest, the case would have been conducted differently before Brown C. Council should not be permitted to raise on appeal an issue not raised below.

72. On the substance of the appeal, PHF submits that Council’s construction of the SEPP, to provide for all types of persons listed in cl 18(1), cannot be maintained. The SEPP provides for a range of facilities for a range of ages and disabilities, and there is no requirement within the SEPP, for any single facility to provide for all of the groups of persons specified. It is sufficient that a single facility provide for people who can be defined as “appropriate”, within the provisions of the SEPP, without needing to cater for the entire range of appropriate (prescribed) persons.

73. PHF submits that Conditions 15 and 16 (see again [27] above) should and can operate together, such that there are no additional groups of people who can be admitted outside the terms of cl 18 of the SEPP.

City of Ryde in Reply

74. On the estoppel submission, Council submits that there is no conduct on its part which can operate as an estoppel against the operation of the SEPP.

75. Council also maintains its argument that the issue now before this Court was raised before Brown C (through the material submitted by the objector Mr Reiss), but argues that, even if there had been no such submission, it is in the interests of justice to permit these matters to be raised now, given that a possible consequence of the Council’s appeal is that the whole development consent may be found to be ultra vires.

76. Council further submits that the natural meaning of the words in cl 18(2)(a) – “the kinds of people referred to in subclause (1)” – is a reference to the whole of subclauses 18(1)(a)-(c).

Consideration

By consent

77. The first question to consider is how to approach the fact that the orders sought to be set aside were made “by consent”.

78. A recent Court of Appeal decision dismissed an appeal to set aside consent orders made in circumstances where a party later complained that senior counsel had committed it to the settlement without its authority: The Owners Strata Plan No 57164 v Yau (“Yau”) [2017] NSWCA 341. The Court held that consent orders can be set aside where the underlying agreement upon which they are based is void or voidable. In the course of her judgment, Beazley P (with whom Leeming JA and Emmett AJA agreed) said (at [81] – [82], emphasis added):

81   In my opinion, contrary to the Owners Corporation’s submission, it is also apparent from the authorities that the court has a discretion whether to set aside consent orders that have been entered, even if some basis for setting aside the ordered has been established. ... [D]ifficulties might arise “if the order had been acted upon, and third parties’ interests had intervened and so on”.

82   That the court has such a discretion is an integral aspect of the court’s inherent jurisdiction. As Sheller JA explained in Logwon Pty Limited v Warringah Shire Council [(1993) 33 NSWLR 13], integral to a superior court’s inherent jurisdiction is the fulfilment “of its function by ensuring that justice is administered according to law and in an effective manner”. The jurisdiction, as his Honour pointed out, is such as “to enable” the court to discharge or revoke consent orders. That is not the language of compulsion.

79. I turn then to the two “preliminary hurdles” ([45] above), raised by the Respondents, and, firstly to the question of estoppel.

Estoppel

80. Mason CJ defined estoppel succinctly in The Commonwealth v Verwayen (1990) 170 CLR 394:

There is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid.

81. The Appellant supports its argument that no conduct on the part of Council can operate as an estoppel against the operation of the SEPP with the words of Deane, Toohey and Gaudron JJ in Chamberlain v Deputy Commissioner of Taxation (1987-1988) 164 CLR 502, at 510:

“…there can be no issue estoppel against the operation of a statute which creates public rights and duties or which enacts imperative provisions”

82. This view was shared by Bignold J in Sydney City Council v Zizza (1989) 67 LGRA 224, who held that the estoppel sought to be raised in that case should not be allowed to defeat the operation of the EPAA.

83. Ms Duggan argues, however, that the Council should be estopped from raising the substantive issues, due to the representation, made at the hearing before the Commissioner, that it would consent to the proposal upon the entering of the consent orders. I find no merit in the Council’s suggestion that the correct time for PHF to take the key point was when the case was before Robson J (T24.10.17 p30, LL7 – 15 c.f. p44, LL31 – 35).

84. In order for estoppel to be enlivened, there must have been reliance on the representation by the Council, to the detriment of PHF, to the extent that it would be unconscionable to permit the Council to now raise the issue.

85. The only mention of reliance on the representation that Council made, that it would consent to the development, appears in PHF’s submissions (par 2):

…Acting in reliance upon the representation that the Council would consent to the development application being approved subject to the conditions submitted and that there remained no issues in dispute between the parties the applicant converted the hearing which had been fixed to a consent order hearing and made no submissions on the legality or otherwise of condition 16.

86. There is before me insufficient evidence to substantiate PHF’s claim that it suffered some detriment as a result of reliance on Council’s representation.

87. I reject the estoppel submissions, and am fortified in my decision by the decisions of the Court of Appeal in Hawkesbury City Council v Sammut [2002] NSWCA 18, per Mason P at [57], and of Biscoe J in Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23, at [45].

88. I, therefore, now turn to the second “preliminary hurdle” argued by Ms Duggan, namely the question of seeking to raise a matter not raised at first instance.

Not raised below

89. The onus is on the appellant Council to demonstrate that it is in the interests of justice to allow a “new” point to be raised on appeal: BibbyFinancial Services Australia Pty Ltd v Sharma [2014] NSWCA 37, per Beazley P, at [10].

90. I am satisfied, by all the material before me, that the issue in contention in this appeal is not “new” – it was adequately raised before the Commissioner in a way that called for his reasoned consideration of the matter. His judgment indicates his awareness of the residual concerns, especially as set out in the Reiss material (detailed in Council subs par 57; and see Brown C’s judgment at [24] – [27] and T24.10.17 p11, L13 – p12, L3; and c.f. Symon v Hornsby Shire Council [2015] NSWLEC 1028).

91. The standard perhaps set by Benevolent, for dealing with objector concerns, would clearly apply to a fully contested Class 1 hearing, such as in that case, but is not really apposite to a consent orders hearing, such as in this case, save to note that in both cases the Council relevantly did not press all objector concerns.

92. Applying to the present case the approach taken in Yau, I conclude that the consent orders here entered may be set aside if they are found to have been based on an improper application of the SEPP.

93. Therefore, a decision on the substantive grounds of the matter is required, and I have dealt with the Appellant’s submissions that the inclusion of Condition 16 is, indeed, contrary to the objectives and provisions of the SEPP.

94. I turn, therefore, to the substantive grounds raised by the Appellant.

The appeal grounds

95. Firstly, does cl 18 of the SEPP require accommodation to be provided in a development, for all persons listed, not merely a sub-set of that group?

96. Subordinate legislation, and indeed development consents, must be construed by recourse to the established principles of statutory construction.

97. The primary object of the principles is to “construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute [and] ‘by reference to the language of the instrument viewed as a whole’”: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [69].

98. The High Court went on to say (at [70]):

... Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions ... Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

99. As is frequently noted in the authorities, “questions of statutory interpretation are commonly formulated, and answered, by reference to legislative intention ... It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances, ... which throw light on the meaning of unclear language. ... [R]eferences to intention must not divert attention from the text, for it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred”: per Gleeson CJ in Singh v The Commonwealth (2004) 222 CLR 322; [2004] HCA 43, at [19]. See also Hoy v Coffs Harbour City Council (2016) 2018 LGERA 411; [2016] NSWCA 257, per Bathurst CJ, at [52].

100. It is clear from the wording of cl 18(1) that the aims of the SEPP are reflected in that clause. The development must provide accommodation for people who are seniors or people with a disability (cl 18(1)(a)).

101. The Council’s example that, if cl 18(1) is read in the disjunctive, allowing a proponent to restrict occupation to one or more, but not all, of the kinds of persons listed, then development of housing for persons listed only in cl 18(1)(b) or (c) is permissible, is an interpretation that presents an absurd result. The SEPP expressly contemplates development or residential accommodation to be used for seniors or people with a disability. To construe any of its provisions in such a way as to bar either of those groups, would be a misreading of the text.

102. To construe cl 18, in the conjunctive, would be to interpret the SEPP as requiring all of the types of persons referred to in cl 18(1) to be accommodated. The wording of that clause specifically includes a choice: seniors or persons with a disability (along with people that live in the same households as persons in either of those groups), and staff.

103. I do not accept that cl 18(1) ought be construed so as to require provision of accommodation for persons within all of subclauses 18(1)(a), (b) and (c). The scope of the coverage is clear. See also Craig J’s discussion in Gray v Sutherland Shire Council [2016] NSWLEC 64.

104. Clause 14 of the SEPP states the objective of providing accommodation in a manner suited to the varying levels of patients who require care. It does not state that all of the varying levels of care are required to be provided in each and every facility.

105. Secondly, would the use referred to in condition 16 enable persons not included within the SEPP to reside at the facility?

106. Subclause 18(3) provides for the types of conditions which can be imposed on a development for the purposes of the SEPP. That subclause specifically states that subclause 18(2) does not restrict the kinds of conditions which may be imposed. Condition 15 of the conditions of consent satisfies cl 18(2) by effectively limiting the occupation of the facility to “only the kinds of people referred to in subcl 18(1)”.

107. I do not agree with Council’s submission (par 39) that “condition 16 applies despite condition 15 and overrides condition 15”. If condition 16 had been intended to override condition 15, there would have been no purpose in the inclusion of condition 15 at all. They must be read together. Condition 16, as stated in its heading, is intended to restrict the persons permitted to occupy the facility further than that prescribed in condition 15, and not to expand the groups stipulated by the SEPP.

108. Therefore, I reject Council’s submission that there are persons permitted by condition 16 to occupy the premises who cannot come within the scope and terms of the SEPP.

109. I agree with the Respondent’s submissions (pars 13-14) which summarise the operation of the Conditions together:

13. The two conditions must be read together. Condition 15 provides for the wider restriction provided for in clause 18 of the SEPP and condition 16 further limits that group to a specific care type. Provided the restriction can operate together (ie by limiting rather than expanding the qualification) there is no inconsistency. There is no expansion of the eligible persons as the application itself and the operation of condition 15 and the SEPP require the limitation of the primary group to be the primary control to admission.

14. If there be any ambiguity, which is denied, then that ambiguity is to be resolved by preferring a construction that is intra vires: s.32 Interpretation Act, 1987 [see [62] above] and therefore the construction contended for by the Appellant should be rejected.

110. I do, however, accept the Council’s point (Reply subs par 21) that s 32 does not provide “a judicial fiat to impermissibly rewrite statutory instruments that are ambiguous or uncertain so as to avoid inevitable invalidity”: Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101, at [46].

111. The suggested re-wording of Condition 16 put forward by Molesworth AJ ([47] above) would probably serve the combined application of Conditions 15 and 16 more effectively. While I could invoke s 56A(2)(b) to make some order to that effect, I am not satisfied that I should or need do so. On their face, the two Conditions can and should operate together. I find them neither ambiguous, nor uncertain.

Conclusion

112. Although various issues were joined between the parties in the Class 1 proceedings, they were overtaken by the agreement to enter into consent orders. However, it is clear that the learned Commissioner was made aware, not only to the resolved issues, but also of the residual concerns of the objectors, even if not pressed by Council, and that he gave them due consideration before deciding to make the orders sought.

113. The Appellant Council has failed to establish any of its grounds of appeal, and its appeal should, therefore, be dismissed.

Costs

114. The usual order for costs in a section 56A appeal from the decision of a Commissioner is that they “follow the event” (section 98 Civil Procedure Act 2005, and r 42.1 and Sch 1 of the UCPR 2005).

115. The circumstances in this case justify the making of such an order in favour of the Respondent.

116. However, the Respondent has made an application for costs to be awarded on an indemnity basis, largely because it says that the Council unreasonably rejected a reasonable offer made by the Respondent to settle the case (T24.10.17 p43, LL2 – 10).

117. The Council argues against any order for costs (Reply subs pars 23 – 27), and says that the Respondent’s offer was “properly rejected” (T24.10.17 p47, L2).

118. Council relevantly referred (Reply subs par 26C) to Sheppard J’s statement of the relevant principles, relating to the making of orders for indemnity costs in such circumstances, in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225.

119. Each case depends on its own facts, and those principles, now well-known, need not be repeated here.

120. I agree with the Council’s submission that its arguments on this appeal were properly grounded, and were neither hopeless nor doomed to fail (Reply sub 27B).

121. Council’s appeal, presumed to have been brought in the public interest (Reply subs 23A and 23B), as Council saw it, required careful consideration of important legal issues, and it was in the interests of justice to allow the parties to be heard. Costs should follow the event.

122. In those circumstances, however, I do not think that the Court’s discretion to make an order for costs on higher than a party-party basis, ought be exercised in favour of the Respondent.

Orders

123. The orders of the Court will be:

1. The appeal in dismissed.

2. The Appellant is to pay the Respondent’s costs of the s 56A appeal on a party-party basis, as agreed or assessed.

3. Exhibit “AMC 1” (Exhibit 3 before Molesworth AJ), the Appeal Books, and the bundles of authorities may be returned.

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Decision last updated: 23 February 2018