David Kettle T/As David Kettle Consulting v Gosford City Council & Ors.

[2005] NSWLEC 579

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     David Kettle T/As David Kettle Consulting v Gosford City Council & Ors. [2005]  NSWLEC 579

PARTIES:
APPLICANT:
David Kettle T/As David Kettle Consulting

RESPONDENTS:
Gosford City Council

INTERVENORS:
V Azzopardi & Ors.

CASE NUMBER:     10429 of        2005

CATCH WORDS:     Development Application

LEGISLATION CITED:
Land and Environment Court Act 1979, s 38

CORAM:        Bignold J

DATES OF HEARING:        07/10/2005

EX TEMPORE DATE:          07/10/2005

LEGAL REPRESENTATIVES

APPLICANT:
Mr P Tomasetti, Barrister

SOLCITORS
N/A

RESPONDENT:
Mr M Fraser, Barrister
INTERVENORS
Ms C Kardell, Solicitor

SOLICITORS
P J Donnellan & Co
INTERVENORS
Ms C Kardell, Solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

7 OCTOBER 2005

10429 of 2005     DAVID KETTLE T/as DAVID KETTLE CONSULTING  v  GOSFORD CITY COUNCIL; V AZZOPARDI & ORS.

JUDGMENT

1. HIS HONOUR: The Court has before it two Motions, one filed by the Council and one filed by the Intervenors in respect of two issues that had been raised in class 1 proceedings, and which by order made by myself in a case management role at the same time as giving leave pursuant to s 39A of the Land and Environment Court Act 1979, for the Intervenors to be joined as a party, excluded two of the issues in the final Statement of Issues prepared by the Intervenors from the adjudication of the case by the Commissioner allocated with the responsibility of hearing and determining the case. 

2. As it turned out after a contested hearing Commissioner Moore on 29 September 2005 delivered an extempore judgment upholding the appeal subject to the imposition of appropriate conditions and gave the parties directions for the preparation and submission to him of the required conditions by Thursday of next week.

3. In his decision he acknowledged that his adjudication had not touched issues 3 and 4 in the Statement of Issues which were the issues that I expressly reserved from his adjudication.  Issues 3 and 4 raised the question of whether the Applicant before the Commissioner possessed the requisite existing use entitlements in order to sustain the grant of any further development consent in respect of the application before the Court (which was for an intensification or expansion of an existing water extraction and bottling activity undertaken at the Applicant’s premises). 

4. In reserving those issues from the Commissioner’s required adjudication I had directed that his adjudication proceed upon the assumption that a relevant existing use entitlement was available to the Applicant, and I assume that the case was conducted before the Commissioner upon the basis of that assumption.  The assumption was founded upon the solid facts of the known longstanding history of the operation tracing back at least as far (or beyond) the grant of the development consent by this Court in 1998. 

5. Following the announcement of his extempore judgment the Commissioner adjourned the reserved issues 3 and 4 to the Registrar’s callover the following day, and on that occasion the Registrar referred the matter to the Duty Judge who gave directions in relation to those issues including the contemplation of the Council filing a Notice of Motion seeking to strike out the reserved issues which was made returnable before a judge of the Court today.  Directions were given by the Judge for the filing of evidence and the making of written submissions in relation to the Council’s Motion.  The Council has duly filed and tendered a bundle of relevant documents (which has become Exhibit 1 in the proceedings) which include the relevant consent granted by the Court in 1998 and a predecessor consent granted by the Council in 1994 related thereto. 

6. In addition to the Council’s Motion that I have before me, I have the Motion filed by the Intervenors, with my leave made returnable today, seeking the setting aside of the orders made by Justice Talbot last Friday and seeking in lieu thereof a set of directions in the case contemplating the deferral of the requirement for the Intervenors to indicate to the other parties and the Court whether they wished to pursue issues 3 and 4 (ie the reserved issues) until they, the Intervenors, had had the opportunity to consider the terms of the conditions of the development consent which Commissioner Moore expects the parties, including the Intervenors, to prepare and to submit to him by Thursday of next week.  His directions include the opportunity for the matter to be re-listed before him in the event of discord or disagreement between the parties as to the terms of the conditions of consent. 

1. Assuming no disagreement (or any resolution of any disagreement) on the conditions, it is clear that subject to the resolution of issues 3 and 4 (the reserved issues) Commissioner Moore’s intention is to publish his extempore reasons in written form and finalise the case.

2. In the course of very helpful presentation of the competing arguments today, it has become abundantly clear to me that the raising of the question of the existing use entitlement in the present Applicants to support their present development application the subject of Commissioner Moore’s adjudication was a valid matter to be raised in the case, and but for a feature, an ultimate feature, in the line of reasoning which I will presently mention, I was disposed to allow the issue to be agitated and litigated in this case. 

3. However, with the benefit of extensive argument, for which I thank the parties and their respective legal representatives, I have come to the conclusion that in the particular circumstances of this case the issue as to whether or no existing use entitlements relevantly exist is not suitable for adjudication within the context of the present class 1 proceeding.  This is not only a consequence of the fact that the two issues were reserved from the rest of the issues which have otherwise been concluded by the Commissioner’s adjudication, subject to the settlement of the conditions of consent, but because of the fact that as the respective contentions on existing use entitlement have been argued it is abundantly clear that the existing use entitlement claimed by the Applicant is firmly rooted in the 1998 consent granted by the Court and that the only way in which the “lawfulness” generated by that consent in favour of the current use can be disturbed is to legally impugn that consent. 

4. In my judgment, and for the reasons ably advanced in the course of argument, the outstanding part of this class 1 proceeding provides an inappropriate vehicle and forum for the adjudication of that matter.  Conventionally, the challenge to validity of development consents is catered for in class 4 proceedings brought in this Court in the nature of judicial review.  Those proceedings are governed by the strict rules of evidence and legal procedure and do not have the latitude of both substantive and procedural law that an adjudication of a planning appeal enjoys by force of the special provisions of the Court Act, s 38. 

5. Moreover, a matter that I emphasised in the course of argument is that the exercise of the Court’s judicial review jurisdiction (including the special jurisdiction vested in the Court by the Environmental Planning and Assessment Act¸ s 124) is subject to discretionary defences and discretionary considerations.  In a case like the present where the only way in which the Intervenors could disturb the “lawfulness” of the existing use claimed by the Applicants was to impugn a development consent which has been in existence for more than seven years, and been acted upon for at least that period if not longer, would inevitably raise significant and substantial issues of discretion. 

6. Discretionary considerations which might be to the fore in judicial review proceedings are not so readily applicable in the case of a development appeal.  It is because of this peculiar aspect of the unravelling of the rival contentions on existing use entitlement that I have come to the conclusion (albeit not without considerable reluctance) that the Intervenors should not be permitted to further agitate the reserved questions in issues 3 and 4.  I say reluctantly because, as a matter of principle, a party to a planning appeal is entitled to raise the question of existing use entitlement.  But on the facts of the present case, and the way in which the rival contentions would ultimately require adjudication, addressing the validity of the consent granted in 1998, that particular feature of this case renders the current class 1 proceedings an inappropriate vehicle or instrument to achieve that adjudication. 

7. The decision to not permit the Intervenors to litigate issues 3 and 4, or the existing use question generally, in these proceedings of course operates as no bar to their capacity if it is their desire to litigate the issue in appropriate class 4 proceedings.  Obviously I am not encouraging the Intervenors to this course of action, I am simply drawing attention to an entitlement that they would otherwise have under the Act to enforce the planning law.  But any such proceedings would necessarily (from their perspective) have to come to terms with and explain what might be considered to be inordinate delay of any complaint in the existence of that development for the past seven years after the grant of the consent in 1998.  I need say no more about that matter. 

8. Accordingly, I have reached the firm decision that issues 3 and 4 should not be allowed to be litigated in the present case for the reasons I have given and  I so order. 

9. That being the outcome of the comprehensive argument and debate in Court today it appears to me to be appropriate to simply record that order and to refer the case back to the Commissioner for completion of his outstanding task concerning the settlement of the conditions of consent to be imposed upon the consent that his extempore judgment on 29 September indicated would be forthcoming.  The tidiest way I think to deal with the two Motions before me is to order their dismissal in each case with no order as to costs in respect of either of them. 

10. It would be possible to link my decision in relation to issues 3 and 4 of the Statement of Issues to the Council’s Motion but I do not think it needs any such connection and the tidiest way I think to deal with the matter is to simply order, as I have in relation to issues 3 and 4 that the Statement of Issues and to order that each of the Motions be otherwise dismissed with no order as to costs. 

11. Exhibit 1 will remain with the Court papers.