Detala Pty Ltd v Byron Council

[2000] NSWLEC 44

Reported Decision: 107 LGERA 385

Land and Environment Court

of New South Wales

CITATION:	Detala Pty Ltd V Byron Council [2000] NSWLEC 44
PARTIES:	APPLICANT: Detala Pty Limited RESPONDENT: Byron Council
FILE NUMBER(S):	10515B of 1994
CORAM:	Bignold J
KEY ISSUES:	Development :- Development:- Modification application to amend a condition of 1995 development consent-Requirement that concurrence be obtained from Director General National Parks and Wildlife - Concurrence refused - effect of refusal - whether Court has power to approve notwithstanding refusal of concurrence where Court is consent authority and not appellate body.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 96 Land and Environemnt Court Act 1979 s 39(6)
CASES CITED:	North Sydney Council v Michael Standley and Associates (1998) 97 LGERA 433
DATES OF HEARING:	28/02/00, 29/02/00, 01/03/00, 02/03/00
DATE OF JUDGMENT:	03/10/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr W R Davison SC with Mr P Parry, Barrister SOLICITORS Bartier Perry RESPONDENT: Mr T Robertson, Barrister SOLICITORS Wilshire Webb

JUDGMENT:

IN THE LAND AND Matter Nos . 10515B of 1994

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 10 March 2000

DETALA PTY LIMITED

Applicant

v

BYRON COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an application to the Court pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act), s 96 to modify a development consent granted by the Court in 1995 as a result of allowing an appeal pursuant to the EP&A Act s 97 against the Council’s deemed refusal of development consent to an application for a community title subdivision creating 15 residential lots, two public reserve lots and a private road on land described in Assessor Bly’s judgment, dated 15 March 1995 at p 1 as “lot 1 Deposited Plan 42428, Portion 173 Patterson Street and part Crown Road Reserve adjacent to Pacific Vista Drive, Byron Bay” (the development site).

2. The modification application which was filed in Court on 23 November 1999 was made in the form prescribed by the Rules of Court Pt 7 r 1(1)(a). This is consistent with the effect of the Environmental Planning and Assessment Regulation 1994 cl 72(1) which provides as follows:

If the development consent referred to in section 96(1) or (2) of the Act is a development consent referred to in section 83(4) of the Act, the Court is taken for the purposes of section 96(1) or (2) of the Act to be the consent authority.

3. The reference in cl 72 of the Regulation to “ a development consent referred to in s 83(4) ” is a reference to a development consent granted by virtue of the Court allowing an appeal under the EP&A Act s 97 .

4. The Council opposes the grant of the modification application, the hearing of which has occurred concurrently with the hearing of the related proceedings No 10096 of 2000 being an appeal pursuant to the EP&A Act s 97 in respect of the Council’s deemed refusal of a development application to remove trees from the development site and from the adjoining Crown Road Reserve and Crown land for the purpose of carrying out the development, the subject of the aforesaid development consent granted by the Court in 1995 (the 1995 development consent).

5. Although the proceedings were heard concurrently, I propose to give separate judgments in each of the proceedings.

B. THE PROPOSED MODIFICATION

6. The 1995 development consent was granted subject to a number of conditions grouped respectively under three headings A, B and C.

7. Under heading B, 30 conditions are stipulated as conditions that “will need to be complied with before the Final Plan of Survey is approved”, including condition 23 which is in the following terms:

No tree to be ringbarked, cut down, lopped, removed or damaged, or caused to be ringbarked, cut down, lopped removed or damaged in contravention of the Tree Preservation Order applicable to the land. Any tree or trees which require removal are to be shown on a plan of adequate scale for the approval of Council’s Planning Manager prior to any works commencing.

8. The proposed modification seeks to delete from condition 23 the words “ for the approval of ” and to substitute for those deleted words the words “ submitted to ”.

9. The effect of the modification, if granted, would be to leave intact the first sentence of condition 23 with the second sentence now reading:-

Any tree or trees which require removal are to be shown on a plan of adequate scale submitted to Council’s Planning Manager prior to any works commencing.

C. THE COURT’S INTERLOCUTORY JUDGMENT

10. At the same time that it filed the modification application, the Applicant filed a Notice of Motion seeking the Court’s leave for short service of the modification application and an order for an expedited hearing.

11. The grounds for the Notice of Motion were as follows:
1. That Consent DA93/362 will lapse if physical commencement works are not completed before 15 March 2000;
2. That the Respondent has not granted an approval required to be obtained by Consent DA93/362 (“the Approval”);
3. That the Applicant has done everything reasonably necessary to obtain the Approval;
4. That Consent DA93/362 may lapse due to the failure of the Respondent to give the Approval;
5. That it is highly desirable for reasons of environmental conservation for subdivision works be carried out immediately;
6. That the Applicant has been ready, willing and able to carry out subdivision works for several weeks;
7. That the Applicant is suffering considerable financial losses due to the failure of the Respondent to give the Approval.

12. Expedition was granted and the modification application initially came on for hearing by me as Duty Judge on 10 December 1999.

13. At the commencement of the hearing, the Respondent raised a threshold objection based upon the express terms of the EP&A Act s 96(5)) to the effect that the Court had no power to grant the modification application because of the absence of the concurrence of the Director General of National Parks and Wildlife to the proposed modification. Section 96(5) provides as follows:
(5) Threatened species

Development consent of the kind referred to in section 79B(3) is not to be modified (except in the case of a minor modification) unless the requirements of section 79B (3)-(7) have been complied with in relation to the proposed modification as if the proposed modification were an application for development consent.

14. For the purpose of resolving the Council’s threshold objection, the Applicant conceded that the 1995 development consent was relevantly “ a development consent of the kind referred to in s 79B(3) ” within the meaning of that phrase in the EP&A Act s 96(5) and that the development, the subject of that consent was relevantly “ development ” described in s 79B(3)(b) . Section 79B(3) provides as follows

Development consent cannot be granted for:

(a) development on land that is, or is a part of, critical habitat, or

(b) development that is likely to significantly affect a threatened species, population, or ecological community, or its habitat,

without the concurrence of the Director-General of National Parks and Wildlife or, if a Minister is the consent authority, unless the Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995 .

15. In my extempore interlocutory or preliminary judgment, I held that the proposed modification was a modification that fell within the ambit of the EP&A Act s 96(5) and that that subsection denied the Court the power to grant the modification unless the requirements of s 79B(3) had been complied with. (It was common ground that the concurrence of the Director General of National Parks and Wildlife had not been sought or obtained.) Thereafter, on the application of the Applicant, I adjourned the proceedings for the Applicant to consider its position. (Subsequently, the Applicant was to seek the concurrence of the Director-General and was to lodge a development application with the Council for the removal of trees.. It is that development application which forms the basis of the related proceedings heard concurrently with the present proceedings.)

16. In so holding, I expressed the opinion that the Land and Environment Court Act 1979 (LEC Act) s 39(6) did not apply to the Court’s determination of the modification application “(B)ecause the Court is determining this application in the capacity of the consent authority, and not by way of appeal”: see par 19 of my reasons for judgment (NSWLEC 278). Section 39(6) provides as follows:

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.

17. Upon the final hearing of the modification application, the Applicant has withdrawn its concessions that were relevant to my interlocutory or preliminary judgment of 10 December 1999 and has submitted that Court has the power by virtue of the LEC Act s 39(6) to grant the modification application, notwithstanding the fact that the Director General had refused the Applicant’s request for his concurrence to the modification application: vide Exhibit O.

18. The Council’s competing argument is that the constraints imposed by the EP&A Act s 96(5) and s 79B(3) apply to the Applicant’s modification application and that the refusal of concurrence by the Director General of National Parks and Wildlife is fatal and is not overcome by the LEC Act s 39(6) because that provision does not apply to the present case because the Court is deemed to be the “consent authority” (having the function of determining the Applicant’s modification application under s 96(2)) and is therefore not exercising any appellate function in respect of a decision of the consent authority.

D. RELEVANT FACTS

19. The evidence establishes the following relevant facts:
(i.) on 18 October 1999 the Applicant lodged with the Council a plan showing the vegetation to be cleared from the development site and the adjacent Crown Road Reserve and Crown land;
(ii.) the extent of land clearing so shown was quite extensive, involving at least 50 per cent of the development site which comprises an area of 1.1 hectares.
(iii.) on 29 October 1999, the Applicant submitted to the Council a plan showing all trees three metres and taller located on the development site and neighbouring Crown land, being trees described as trees “which may be affected by the subdivision works”;
(iv.) on 29 October 1999, the Council’s Director of Local Approvals and Compliance Services wrote to the Applicant’s Solicitors advising that “no works are to proceed until you are in receipt of that approval” (ie the approval referred to in condition 23 of the 1995 development consent);
(v.) on 29 October 1999 the Applicant’s Solicitors wrote to the Council rejecting the advice that that further approval was required from the Council before the approved subdivision works could be commenced in the development site;
(vi.) on 2 November 1999, the Council wrote to the Applicant’s Solicitors advising that the Council was seeking legal advice in respect of the application of the Council’s Tree Preservation Order to the proposed land clearing proposed by the approved subdivision works. It also advised that the plan that had been submitted to the Council in purported compliance with condition 23 of the 1999 development consent was unsatisfactory in that it had failed to identify “the extent of land to be cleared and the precise locations of the trees to be removed”;
(vii.) on 9 November 1999, the Applicant submitted to the Council a further plan showing the proposed vegetation clearing areas of the development site and the adjacent Crown lands and the location thereon of trees greater than three metres in height (Exhibit 1). Upon delivery of the plan to the Council’s Tree Officer Mr Paul Montgomery, he said:

The plan looks fine. I will recommend the plan be approved by Chris Pratt, although I would normally approve this type of plan myself

(viii.) On 12 November 1999 the Applicant’s Solicitors wrote to the Council asking for the immediate grant of the approval required by condition 23 of the 1995 development consent.

(ix.) On 17 November 1999 the Council wrote to the Applicant’s Solicitors advising of the following resolutions that had been passed by the Council at its meeting held on 16 November 1999 :

1. That Council write to the Minister for Planning and the Director of the Heritage Council to support the application made by BEACON to request an interim Heritage Order for the protection of the Detala site.

2. That Council write to the Minister of the Environment in support for the request by BEACON for an Interim Protection order for the Detala site and inform the Minister of the Scientific Committees’ recent Preliminary Listing presented on 29 October, 1999. Determination to support the proposal to list Byron Bay Dwarf Graminoid Clay Heath Community as an Endangered Ecological Community and the nomination of the unnamed orchid as an Endangered Species under the Threatened Species Conservation Act 1995.

3. That Council write to the Premier advising him of the recent Preliminary Determinations by the Scientific Committee for the Byron Bay Dwarf Graminoid Clay Heath Community and the unnamed orchid and request as a matter of urgency a reconsideration of the option to join Byron Shire Council in a joint acquisition of the Detala site.

4. That Council seek additional, specific environmental legal advice regarding the Detala development with particular reference to the Tree Preservation Issue and the Condition of Consent 23.

5. That a Council delegation seek a meeting with the owners to explore options. Such delegation to comprise the Mayor, two (2) Councillors and the General Manager.

(x) On 17 November 1999 , the Applicant’s Solicitors advised the Council that they had instructions to immediately commence proceedings in this Court for the modification of the 1995 development consent by deleting condition 23 .

(xi) The Council’s current Tree Preservation Order (TPO) was made on 20 August 1996 pursuant to the powers conferred by the Environmental Planning and Assessment Model Provisions 1980 cl 8 (which provisions are adopted by the Byron Local Environmental Plan 1988 (the LEP) cl 6 )). The relevant terms of the TPO ( Exhibit B ) are as follows:

No person shall cut down, lop, top, remove or wilfully destroy any species of tree, palm or fern exceeding three (3) metres in height, except with the written consent of Council being obtained beforehand. All coastal heathlands and mangroves of any height are covered by this order and consent within these areas for any lopping or removal of vegetation is required.

The Council also resolved that all applicants seeking approval under the Tree Preservation Order submit development applications.

(xii.) The development site is of high botanical significance in that it contains the following species:-

(i) approximately 1 hectare of Byron Bay Dwarf Granminoid Clay Heath community being a listed endangered ecological community in terms of the Threatened Species Conservation Act 1995 , having been included in Pt 3 of Sch 1to the Act by virtue of the final determination of the Scientific Committee established under that Act which was published in Government Gazette No 22 of 11 February 2000 ;

(ii) the endangered species at both National and State levels, Allocasuarina defungens , the population on the development site representing a significant extension of the known northern geographic limit of the species; and

(iii) the orchid Diuris sp aff chtysantha (Byron Bay) which was given a provisional listing on an emergency basis as an endangered species under the Threatened Species Conservation Act by the determination of the Scientific Committee as notified in Government Gazette No 141 of 17 December 1999 ;

(xiii.) the carrying out of the development the subject of the 1995 development consent involving clearing of vegetation of up to 70 per cent of the site area (according to the 1995 judgment of Assessor Bly—see page 7) is certain to significantly affect a threatened species, or ecological community or its habitat (within the meaning of those expressions appearing in the EP&A Act s 79B(3)(b) ;

(xiv.) on 23 December 1999 , the Applicant’s Solicitors wrote to the Director General of National Parks and Wildlife advising of my interlocutory judgment delivered on 10 December 1999 and seeking his concurrence to the Applicant’s modification application on the assumption, which was not conceded, that the modification application “ entails anything which would have a significant effect on any threatened species, population or ecological community ”;

(xv.) on 3 February 2000 , the National Parks and Wildlife Service refused the Applicant’s request for concurrence to the Applicant’s modification application ( Exhibit O )

E. ADJUDICATION ON THE MODIFICATION APPLICATION

20. Before there can be an adjudication on the merits of the modification application, it is first necessary to revisit the Council’s threshold objection, based upon the EP&A Act s 96(5) which objection was upheld in my interlocutory judgment of 10 December 1999.

21. The question posed is simply this—

Does s 96(5) apply to the Applicant’s modification application and if so, what is the effect of the Director General’s refusal of concurrence to the application?

22. The Applicant makes the following submissions:

1. Section 96(5) does not apply in the present case because the modification application does not result in any change to the approved development. Rather, the modification is confined to a condition which imposed a primarily administrative or ministerial role upon the Council’s Planning Manager. As such, the modification, which merely changes the administrative arrangements, is simply incapable of causing any significant effect on a threatened species or ecological community or its habitat.

2. If contrary to the primary submission, it is held that s 96(5) applies to the present case, the fact that the Director General of National Parks and Wildlife has refused concurrence does not mean that there has been “ no compliance with s 79B(3) - (7) ” because the concurrence of the Director General is not required to a modification which only affects an administrative change in the regime of conditions of development consent without modifying the approved physical development.

3. If submission 2 is not accepted, the fact that the Director-General has refused concurrence does not preclude the Court from granting the modification application because of the power conferred upon it by the LEC Act s 39(6) .

23. The Council’s competing submissions are as follows:
1. Section 96(5) clearly applies to the present case because the development consent is clearly “of the kind referred to in s 79B(3)”, namely being “development that is likely to significantly affect a threatened species, or endangered species, or ecological community or its habitat”.

2. The requirements of s 79B(3) - (7) are not complied with in a case, such as the present, where the Director-General has refused to grant concurrence.
3. The Court, in determining the Applicant’s modification application does not have available to it the faculty provided by the LEC Act s 39(6) because it is not determining the application by way of appeal from the decision of a consent authority. Rather, and exceptionally, the Court is itself the consent authority (cl 72 of the Regulation).
4. It is inaccurate to categorise the second sentence of condition 23 as imposing merely an administrative function on the Council’s Planning Manager. Rather, the condition imposes an obligation to obtain his approval for the tree removal, as a condition precedent to the commencing the approved development.

24. In my judgment, the Council’s arguments are generally to be preferred. I shall briefly state my reasons for so concluding.
1. The 1995 development consent clearly is of the kind referred to in s 79B(3) because not only is it “likely” that the carrying out of the approved development will significantly affect a threatened species or ecological community or its habitat, it is certain to have that impact. This conclusion is unaffected by the fact that the 1995 development consent was granted before the commencement of the Threatened Species Conservation Act 1995, on 1 January 1996, or the fact that the listing of the Byron Bay Dwarf Graminoid Clay Heath Community as an “endangered ecological community” in terms of that Act has only occurred last month.
2. Section 96(5) operates according to its terms, to prohibit the modification of the 1995 development consent “unless the requirements of s 79B(3) - (7) have been complied with”. The only exception provided to this qualified statutory prohibition is the case of a “minor modification”, that term apparently being confined to modifications referred to in s 96(1). There is, and can be, no suggestion that the proposed modification falls within the ambit of s 96(1). Clearly, the modification falls within the ambit of s 96(2) and equally clearly, s 96(5) applies to it.

It is neither necessary nor legitimate to seek to limit, as the Applicant’s argument would have it, the scope and operation of s 96(5) to modifications that have the potential “ to affect threatened species ” etc, the statutory language being clear and unambiguous.

3. The requirements of s 79B(3) - (7) have not been complied with where, as in the present case, the Director General has refused to grant concurrence. Again, it is neither necessary nor legitimate to seek to limit the requirement for concurrence under s 79B(3) to a modification application only where the proposed modification is capable of affecting threatened species.

Moreover, it must be recalled that s 96 is expressly concerned with the modification of a development consent . It follows, that a development consent may be modified, by for example, a deletion or variation of a condition of development consent, without such modification having any physical effect upon the approved development. Nonetheless, such example is a “ modification application ” subject to the operation of s 96(2) and where applicable, s 96(5) .

4. The present modification application seeks to modify the 1995 development consent by modifying condition 23 . It is not necessary in these proceedings to adjudicate upon the rival interpretations of that part of the condition that requires approval by the Council’s Planning Manager of a plan showing trees required to be removed “ prior to any works commencing ”, because even if I were prepared to accept the Applicant’ interpretation of the condition, that result would not change the fact that the present modification application falls within the ambits of s 96(5) and s 79B(3) because those ambits are exclusively delineated by reference to the development consent sought to be modified and not by reference to the modification .

5. The refusal of concurrence by the Director General inevitably means that there has not been compliance with s 79B(3) - (7) and accordingly, the statutory prohibition on modifying the 1995 development consent operates in the present case.

6. The operation of that statutory prohibition is not capable of being overcome by recourse to the LEC Act s 39(6) because the Court’s statutory function to determine the present modification application is qua the relevant “ consent authority ” ( cl 72 of the Regulation) and not, by way of appeal against the decision of a consent authority. Where the Court is required to determine a modification application qua the consent authority there is no appeal against its determination—vide the EP&A Act s 96(7) .

7. There being be no appeal from the Court’s determination of the modification application, the faculty conferred upon the Court by the LEC Act s 39(6) exercisable by the Court in determining “ the appeal ” is simply not available in the present case. In so concluding, I reject the Applicant’s argument based upon the meaning of “ appeal ” provided by the LEC Act s 39(1) . It requires the conclusion that for the purpose of invoking s 39(6) , the Court is at one and the same time to be regarded as “ the consent authority ” and the appellate body determining an appeal against the decision of that consent authority. Such a dual personality is an absurdity.

25. For the foregoing reasons, I hold that the EP&A Act s 96(5) prohibits the Court from granting the modification application, which must, accordingly be refused.

26. For completeness, I should say that had I accepted the Applicant’s submissions in relation to the EP&A Act s 96(5) and s 79B(3) or its submission in relation to the LEC Act s 39(6), I would not have accepted its submissions in respect of the EP&A Act, s 96(3) which provides as follows:

In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application

27. Those submissions necessarily sought to distinguish the majority judgment of the Court of Appeal in North Sydney Council v Michael Standley and Associates (1998) 97 LGERA 433 holding that the reference in the EP&A Act s 102(3A) (the identical antecedent to s 96(3) ) to the expression “ the development, the subject of the application ” was a reference to the development as modified and was not limited to the modification to that development. The Applicant’s subtle argument was based upon the recent amendment to s 96 enacted by the Environmental Planning and Assessment (Amendment) Act 1999 but not yet in force, (Act No 72 assented to on 3 December 1999) which would appear to have been intended to overcome another aspect of the Court of Appeal’s decision in Michael Standley in holding that the statutory requirement “ that the development as modified be substantially the same development ” was satisfied by comparing the proposal with the development as approved, including all subsequent modifications to that approval.

28. However, the enactment of that amendment, even if it were in force, does not, in my opinion affect the majority’s decision on the particular aspect of s 96 now under consideration, namely the effect of s 102(3A) as now enacted in s 96(3). Significantly, Act No 72 of 1999 contains no amendment of s 96(3).

29. Accordingly, in my judgment, had it been necessary for me to determine the merits of the modification application I would have considered myself bound by the majority decision in Michael Standley to consider the effect of EP&A Act s 79C in respect of the approved development as proposed to be modified.

30. So considered, and having regard to my earlier findings of the significant adverse environmental impact on the endangered ecological community, I would have readily concluded that the application should be refused on that account.

31. Before leaving this case, I would emphasise that I have deliberately refrained from expressing my opinions on a number of matters that were either raised in, or underlie and inform, the parties’ competing cases. In particular, I express no opinion on whether the 1995 development consent will or will not expire on 15 March 2000. Likewise, I say nothing on whether the Applicant has fulfilled its obligations under condition 23 of the 1995 development consent or whether the requisite approval referred to in that condition has or should have, been granted. Likewise, I have not found it necessary to conclude what is the true meaning of condition 23.

32. Although I have no doubt that these are issues keenly in dispute between the parties, I am firmly of the opinion that the present proceedings do not provide the occasion or the justification for adjudication on those issues.

F. ORDERS

33. For all the foregoing reasons, I order that the modification application be refused.