Daly v Mosman Municipal Council

[2024] NSWLEC 107

Land and Environment Court

New South Wales

Medium Neutral Citation:

Daly v Mosman Municipal Council [2024] NSWLEC 107

Hearing dates:

13 September 2024

Date of orders:

13 September 2024

Decision date:

13 September 2024

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [19]

Catchwords:

NOTICE OF MOTION — Civil procedure — Extension of time to commence judicial review proceedings under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) — Summons filed 10 years after relevant decision made — Mosman Municipal Council decision to impose condition on development consent — Public interest raised

Legislation Cited:

Government Information (Public Access) Act 2009 (NSW)

Land and Environment Court Rules 2007 (NSW), rr 4.2, 4.3

Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59,9, 59.10

Category:

Procedural rulings

Parties:

Jacqueline Daly (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
J Daly, self-represented (Applicant)
R McCulloch, solicitor (Respondent)

Solicitors:
Self-represented (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2024/00253382

Publication restriction:

Nil

Ex Tempore JUDGMENT (revised)

Introduction

1. Before the Court for hearing is a notice of motion in Class 4 judicial review proceedings commenced by summons filed 10 July 2024 (and amended 22 August 2024).

2. Jacqueline Daly (‘applicant’) seeks judicial review of a decision of Mosman Municipal Council (‘Council’) to impose condition 75(iv) on development consent 8.2014.86.1 granted by Council on 29 October 2014 for development of the applicant’s property in 23 Rickard Avenue, Mosman (‘Consent’).

3. By notice of motion filed 5 August 2024 (and amended 22 August 2024), the applicant seeks orders, inter alia, for leave pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) extending the time permitted to commence these judicial review proceedings.

4. In the event that an extension of time order under r 59.10(2) of the UCPR is not made, the motion seeks various alternative orders being, first, an order under r 59.10(5) that the applicant’s summons be heard due to the importance of the matter to the applicant; second, if subrr 59.10(2) and (5) are not applicable or successful, an order pursuant to r 4.3(a) of the Land and Environment Court Rules 2007 (NSW) (‘Court Rules’), that Council make available to the Court and the applicant the legal advice obtained by Council on 6 May 2024 and 9 July 2024 and the total number of Mosman residents who are subject to a similar condition (that is, condition 75(iv) of the Consent) in a residential development consent.

5. In addition, the applicant also seeks an order pursuant to r 42.1 of the UCPR, that Council “may not recover costs from the [applicant] where the [applicant] is unsuccessful in the proceedings” or, in the alternative, pursuant to r 4.2(1) of the Court Rules, that the applicant not be required to pay Council’s costs as the proceedings “have been brought in the public interest”.

6. The applicant appears without legal representation and Ms McCulloch, solicitor, appears for Council. I have been careful to explain to the applicant my concerns in relation to the nature of the relief presently sought in both the amended summons and the amended notice of motion and I have formed the view that despite being unrepresented, the applicant properly understands the nature of the claim and the Court process pursuant to which she seeks relief. She has indicated that she will further consider her position after receiving Council’s further evidence and submissions.

7. For the reasons that follow, I find that the application for the extension of time in the amended notice of motion filed 22 August 2024 should be heard at the same time, and together with, the relief sought in the amended summons filed 22 August 2024.

Background

8. Condition 75(iv) of the Consent relevantly states:

“75.   To ensure that future owners are made aware of their responsibilities with respect to the on-site detention system or rainwater re use tanks, a positive covenant shall be created on the title of the allotment requiring that the owner(s) maintain and keep in working order the on-site detention system or rainwater re use tanks, unless otherwise approved in writing by Mosman Council.

A fee applies for the checking, approval and executive of the Positive Covenant by Council…

The terms of the positive covenant shall read:

…

(iv)   The Registered Proprietors hereby agree to indemnify Mosman Council from and against all claims, demands, actions, suits, causes of action, sum or sums of money, compensation damages, costs and expenses which Mosman Council or any other person may suffer or incur as a result of any malfunction or non-operation of any such detention system/ rain water re use system arising from any failure of the Registered Proprietors to comply with the terms of this Covenant.”

(‘Condition 75(iv)’).

9. The amended summons filed 22 August 2024 (containing some 80 paragraphs with over 60 subparagraphs) seeks the following relief in relation to Condition 75(iv): first, a declaration that Condition 75(iv) is “ultra vires, invalid and cannot be enforced”; second, a declaration that Condition 75(iv) “serves no planning purpose”; and third, that Condition 75(iv) is “severed from affected conditions of consent”.

10. The applicant further seeks an order that Council “rectify, at its expense, its invalid use of power” by, first, “establishing and operating procedures to give effect to rectifications”, second, “notifying those affected of the existence of the above Declaration and available rectifications” and, third, “cease invalid imposition of [Condition 75(iv)]”.

11. Additionally, the applicant states that she is also seeking relief from conditions that may be “similar” to Condition 75(iv) for the benefit of other affected Mosman residents (both past and present) as well as Mosman residents who are at risk of being subjected to a similar condition in future development consents.

12. The “grounds” listed in the amended summons include, first, “Scale of Impact”; second, “Sub-condition(iv) – beyond power”; third, “Sub-condition (iv) serves no planning purpose”; fourth, “No public interest”; fifth, “Reasonableness – no evidence of reasonable consideration”; sixth, “Denial of natural justice and procedural fairness”; seventh, “Court consideration not to impose costs on [the applicant] irrespective of outcome”; and eighth “Rectification – past, present and future”. I am informed by the applicant that the sixth ground does not relate to Council’s actions at the time in which the condition was imposed, but rather, Council’s conduct in response to the applicant’s inquiries regarding Condition 75(iv) after it was imposed in the Consent.

Evidence

13. The applicant reads her affidavit sworn 21 August 2024, which annexes the Consent; previous correspondence between the applicant and Council regarding Condition 75(iv); an application to access Council information in accordance with the Government Information (Public Access) Act 2009 (NSW); and a chronology of events leading up to the filing of the summons to commence these Class 4 proceedings.

14. Council reads the affidavit of its solicitor, Roslyn Mary McCulloch, sworn 12 September 2024. Ms McCulloch deposes that, although it is not entirely clear to Council, the applicant’s amended notice of motion appears to be seeking an order that Council provide the applicant with a statement of reasons pursuant to r 59.9(4) of the UCPR in relation to Council’s decision to impose Condition 75(iv) on the Consent. Alternatively, or additionally, the applicant may be seeking an order that Council provide the applicant with a written statement in relation to that decision pursuant to r 4.3 of the Court Rules.

15. Ms McCulloch further deposes, first, that the Consent was granted on 29 October 2014 by the (then) Mosman Development Assessment Panel – a body which was constituted for the purposes of exercising certain delegated functions of Council; second, that none of the panel members from 29 October 2014 are current members of the (now) Mosman Local Planning Panel, and that one of the panel members from 2014 has since died; and third, that it is unlikely that any of the other panel members will have an independent memory of the matters taken into account when Condition 75(iv) was imposed on the Consent.

Consideration and conclusion

16. In relation to today’s proceedings, I have heard submissions from the applicant and Council. It is my view, which is not opposed by either of the parties, that the application for the relief sought in the amended motion – primarily being, that the request for leave to extend the time to commence these judicial review proceedings should proceed at the same time as the hearing of the substantive matter.

17. Despite the amended summons containing some 80 paragraphs with over 60 subparagraphs pleading eight disparate grounds, my view is that the substantive issue is relatively concise and of short compass.

18. In the light of the fact that Council opposes that leave be granted, and that the applicant appears without legal representation, I consider that the just, quick and cheap determination of these matters is best addressed by way of directions made for the further conduct of the proceedings which will allow the applicant to further consider her position when Council’s further evidence and submissions are received. As such, I have determined that both the request for leave for the extension of time to commence the proceedings sought in the amended notice of motion and the relief sought in the amended summons should proceed together.

Orders

19. The Court orders that:

1. The request for extension of time in the amended notice of motion filed 22 August 2024 and the relief sought in the amended summons filed 22 August 2024 are to be heard together.

2. Council is to file and serve its response to the amended summons filed 22 August 2024, any further evidence it intends to rely upon and a summary outline of its position (limited to 10 pages) on or before 4 October 2024.

3. The applicant may, if she wishes, file and serve any further submissions or evidence on or before 18 October 2024.

4. The matters are stood over for further directions on 22 October 2024 at 9.15am.

5. Costs are reserved.

6. Parties have liberty to apply on 2 days’ notice.

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Decision last updated: 28 October 2024