Dominic Wykanak v Rockdale City Council [1998] Nswlec 160 (20 July 1998)
[1998] NSWLEC 160
•07/20/1998
Land and Environment Court
of New South Wales
CITATION: DOMINIC WYKANAK v. ROCKDALE CITY COUNCIL [1998] NSWLEC 160 (20 July 1998) [1998] NSWLEC 73 PARTIES: DOMINIC WYKANAK v. ROCKDALE CITY COUNCIL FILE NUMBER(S): 40005 of 1997 CORAM: Pearlman J KEY ISSUES: :- Community and operational land - reclassification - invalidity of local environmental plan - privative clauses - natural justice - public participation - improper purpose LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 27, 35, 66, 67, 68, 70, 104A
Local Government Act 1993 ss 10, 27, 29, 36, 38, 40, 44, 45
Environmental Planning and Assessment Regulation cls 12, 13CASES CITED: R v Hickman; ex parte Fox (1945) 70 CLR 598 at 615 and 616; Darling Casino v New South Wales Casino Authority (1997) 96 LGERA 114 ;
Londish v Knox Grammar School and Ors (Court of Appeal, 22 December 1997;
Coles Supermarkets Australia Pty Ltd and Anor v Minister for Urban Affairs and Planning and Anor (1996) 90 LGERA 341;
Darling Casino v NSW Casino Authority per Brennan CJ, Dawson and Toohey JJ at p 116);
Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 56 ALJR 678 at 679);
Parramatta City Council and Anor v Hale and Ors (1982) 47 LGRA 319 at 339-340;
Seaton v Mosman Municipal Council and Anor (1996) 93 LGERA 1DATES OF HEARING: 22, 23, 24, 28, 29, 30 April;1 May; 1, 2, 5 June 1998 DATE OF JUDGMENT:
07/20/1998LEGAL REPRESENTATIVES:
N/A
First Respondent Mr S B Austin QC with S A Duggan, Barrister
Second Respondent Mr I J Hemmings, Barrister
Third Respondent Mr G A Green, Solicitor
Fourth Respondent Mr A E Galasso, Barrister
JUDGMENT:
These proceedings involve a challenge by the applicant, Mr Dominic WYkanak, to the validity of the following:
· a draft local environmental plan (“Draft LEP 142”);
· Rockdale Local Environmental Plan (“LEP 142”); and
· development consent numbered 226/96 (“DC 226/96”).
Background
Mr WYkanak is principally concerned with land in Moate Avenue, Brighton-Le-Sands which is contiguous with land in Princess Street, upon which a public carpark had been constructed (“the Moate Avenue carpark”). Together with other land, the Moate Avenue carpark was vested in or under the control of the Rockdale City Council (“the council”).
Under s 25 of the Local Government Act 1993 (“the LG Act”), all public lands must be classified as either “community” or “operational”. Clause 6 of sch 7 of the LG Act (which contains savings and transitional provisions) provides that, on the commencement of the LG Act on 1 July 1993, certain lands, including land subject to a trust for a public purpose, are to be taken as having been classified as community land, and all other public land might be classified by resolution of the council within one year from that date as community land or operational land.
On 15 June 1994, the council resolved to classify the Moate Avenue carpark (and the other land I have mentioned) as operational land.
On 2 October 1996, the council granted DC 226/96 to the second respondent, Oceanview Group Holdings Pty Ltd (“Oceanview”) approving a retail/residential development comprising a supermarket, three levels of carparking, community facilities and a six storey residential tower. Public notice of DC 226/96 was given by the council in a local paper on 14 November 1996.
At some time in 1996, the council became aware of the decision of this Court in PWC Properties Pty Ltd v Bathurst City Council (1996) 91 LGERA 344 in which it was held that certain land comprising a car park was vested in the local council subject to a trust to provide a car parking facility and that accordingly a resolution to classify that land as operational land was beyond power. (That decision has been the subject of an appeal to the Court of Appeal and to the High Court, but nothing turns on those appeals in this case).
Having regard to the implications of that decision, the council determined that it ought, as a precautionary matter, undertake the process of reclassification of the Moate Avenue carpark (and the other lands) from community land to operational land by way of a local environmental plan as provided in div 1 of pt 2 of the LG Act.
On 14 November 1996, the council resolved to prepare a local environmental plan to reclassify the Moate Avenue carpark (and the other land) as operational land. It appointed Mr Paul Grech of Don Fox Planning Pty Ltd to prepare a draft. After Draft LEP 142 had been prepared, the following events took place:
· On 21 November 1996, the council gave public notice of Draft LEP 142 by an advertisement in a local paper which announced the preparation of Draft LEP 142. It specified which land was to be reclassified from community land to operational land (including the Moate Avenue carpark), announced the time and place of public exhibition, and gave notice that a public hearing was to be held on 23 December 1996. The advertisement included the following text:
“The Draft LEP does not involve any changes to the zoning of the lands or their development potential in accordance with the provisions of the Environmental Planning and Assessment Act, 1979. Accordingly, any proposal to sell or develop the subject lands would be the subject of separate applications or consideration by Council, which would need to be reviewed and assessed individually, as the time arises in accordance with the relevant legislation. The proposed LEP would, however allow the potential for the sale and/or alternate use of the properties and Council has already resolved to issue development consent in respect of the Princess Street/Moate Avenue carpark … .”
· The public exhibition of Draft LEP 142 was held between 21 November 1996 and 19 December 1996. A number of written submissions were received by the council.
· On 23 December 1996, a public hearing was held which was conducted by Mr Greg Newport, Barrister.
· On 30 December 1996, Mr Newport prepared a report of the public hearing. In that report, after setting out the background, Mr Newport summarised and reviewed all the submissions which were made at the public hearing, including that of Mr Grech, who supported the reclassification of the land. The report contained Mr Newport’s assessment of the issues, his conclusion and ultimately his recommendation that the council “reclassify the subject lands from community to operational and proceed, without alteration, with the making of” Draft LEP 142.
· On 31 December, the council wrote to all persons who had made submissions at the public hearing, informing them that a special council meeting would be held on 8 January 1997 in relation to Draft LEP 142.
· On 7 January 1997, the council gave notice, in a local paper, that a special council meeting would be held on 8 January 1997 to consider the report of the public hearing.
· On 8 January 1997, the council held a special meeting. At that meeting, four documents were available. The first was a report to council from Mr Alex Sarno, the council’s manager- urban planning. The second was a final report by Mr Grech reviewing and assessing the preparation and making of Draft LEP 142. (Mr Grech recommended that the council proceed with the making of Draft LEP 142 and forward it to the Minister for that purpose). The third document was Mr Newport’s report. The fourth document comprised copies of all the written submissions which had been made in relation to Draft LEP 142.
The council resolved at that meeting to submit Draft LEP 142 pursuant to s 68(4) of the Environmental Planning and Assessment Act 1979 (the “EP&A Act”) to the secretary of the Department of Urban Affairs and Planning for it to be made by the Minister.
· LEP 142 was gazetted on 16 May 1997.
· On 4 June 1997, the council granted development consent 31/97 (“DC 31/97”) to Oceanview permitting a retail/residential development on the Moate Avenue carpark.
· On 21 November 1997, DC 226/96 was surrendered by Oceanview.
The orders sought and the grounds of challenge
When these proceedings were commenced, by lodgment of a class 4 application on 8 January 1997, LEP 142 had not been made, and Draft LEP 142 was still a draft. Mr WYkanak’s challenge was accordingly directed to Draft LEP 142. However, LEP 142 was subsequently made, and Mr WYkanak sought to amend his class 4 application.
The application to amend was opposed, but, for the reasons that I then gave, on 24 April 1998 I granted leave to Mr WYkanak to amend his class 4 application and points of claim on terms that the amendments were to operate and take effect from that day.
The amended class 4 application seeks the following orders:
“(1) A declaration that from November 14 1996 any options or contracts related to community land covered by Draft LEP 142 are unenforceable;
(2) An order that Rockdale City Council readvertize and publicly display a draft LEP after the adoption & preparation of a plan of management for Draft LEP 142;
(3) A declaration that Rockdale City Council has acted ultra vires (‘beyond power’) in granting development consent over community land covered in Draft LEP 142;
(4) A declaration that Rockdale City Council’s consent to development applications over community land is invalid;
(5) A declaration that ignorance of the law relating to community land classification does not excuse Rockdale City Council from its actions related to community land covered in Draft LEP 142 - those actions being the granting of options development consent and the exclusion of the public from council meetings affecting community land;
(6) A declaration that Rockdale City Council had planned “a special council meeting” to be held on January 8 1997 as early as on or about 14 Nov96 yet did not inform the public;
(7) A declaration that Rockdale City Council denied natural justice to the public citizens ratepayers of Rockdale municipality by not advertizing/announcing the intended RCC meeting on 8Jan97 when it was already planned in advance;
(8) A declaration that Rockdale City Council engaged in misleading and/or deceptive conduct by not advertizing and/or announcing the preplanned meeting 8Jan97 meeting prior to and/or with the pre Christmas advertizements for RCC’s ‘planned timetable’ of meetings over the Christmas New Year period;
(10) A declaration that Rockdale City Council entered into the LEP 142 process with a conflict of interest by making the conditions of a development consent for the Moate Avenue carpark arranged prior to the LEP 142 process beginning conditional upon the reclassification of public lands listed in LEP 142 from community to operational.”
There were three other declarations, numbered 9, 11 and 12, sought in the amended class 4 application, but at the hearing Mr WYkanak did not press them.
One of the orders initially sought and later not pressed concerned the Minister for Urban Affairs and Planning. He was joined as fourth respondent. Ultimately, the Minister filed a submitting appearance.
The orders sought are imprecise and vague, as are the amended points of claim. Furthermore, some of the orders sought are formulated in terms which do not appear to be justiciable.
Accordingly, after Mr WYkanak had opened his case, I stated what I understood to be the grounds for his challenge and I invited Mr WYkanak to agree or disagree with that understanding. I allowed a short adjournment for Mr WYkanak to consider what I had said and thereafter Mr WYkanak agreed with my understanding.
The grounds for Mr WYkanak’s challenge as I articulated them and as he accepted them were:
(a) denial of natural justice, that is, denial of a right to be heard;
(b) denial of public participation in the reclassification process;
(c) ulterior or improper purpose or conduct on the part of the council;
(d) failure of the council to consider or properly consider submissions made to it;
(e) a flawed process.
Mr WYkanak abandoned any challenge to DC 31/97, and conceded that there was no direct challenge to DC 226/96, but he asserted that DC 226/96 must be invalid if LEP 142 is found to be invalid.
The respondents raise the following defences:
(1) LEP 142 was validly made, and no declaration of invalidity can be made in respect of it or in respect of DC 226/96;
(2) Mr WYkanak’s challenge to LEP 142 and DC 226/96 are barred by the operation of ss 35 and 104A of the EP&A Act;
(3) Alternatively, Draft LEP 142 and DC 226/96 have no legal existence, since LEP 142 was made on 16 May 1997 and DC 226/96 was surrendered on 21 November 1997;
(4) The Court should not grant the orders sought on various discretionary grounds.
The privative clauses
If ss 35 and 104A operate as a bar to Mr WYkanak’s challenge, it is appropriate that I consider that defence first.
Section 35 of the EP&A Act is in the following terms:
“35 The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication in the Gazette.”
LEP 142 is an “environmental planning instrument” within the definition in s 4 of the EP&A Act, and, as I have noted, it was gazetted on 16 May 1997. Mr WYkanak’s challenge to the validity of LEP 142 was effectively commenced by the amendment to his class 4 application, operative from 24 April 1998. Accordingly, so the council claims, s 35 operates as a bar to the challenge to LEP 142.
Section 104A of the EP&A Act is in the following terms:
“104A In the event that public notice of the granting of a consent is given in accordance with the regulations by a consent authority, the validity of the consent shall not be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.”
Public notice of the granting of DC226/96 was given in a local paper on 14 November 1996. Accordingly, Oceanview claims that s 104A operates as a bar to the challenge to DC 226/96.
Privative clauses, such as ss 35 and 104A, do not operate as an absolute bar to a challenge to an environmental planning instrument or a development consent - they are subject to the exceptions which are specified by the principle referred to as the “the Hickman principle”. That principle recognises that a privative clause shall operate and take effect to preclude a challenge, provided that the impugned decision is made in good faith, that it relates to the subject matter of the legislation, and that it does not on its face exceed the authority conferred by the legislation (see R v Hickman; ex parte Fox (1945) 70 CLR 598 at 615 and 616; and see also Darling Casino v New South Wales Casino Authority (1997) 96 LGERA 114 and Londish v Knox Grammar School and Ors (Court of Appeal, 22 December 1997, unreported).
In Coles Supermarkets Australia Pty Ltd and Anor v Minister for Urban Affairs and Planning and Anor (1996) 90 LGERA 341, I considered, at pp 348 - 350, the question whether s 35 operates to bar a claim of a breach of the rules of natural justice. The approach that I favoured then (and which I still adopt) is that the Hickman principle should be applied to determine if a challenge based on a breach of the rules of natural justice is precluded by the privative clauses. In Londish v Knox Grammar at pp 7-8, Stein JA noted the question as to whether a challenge based on a breach of the rules of natural justice is precluded by s 104A, but declined to answer the question, principally because it did not arise for consideration in that appeal.
The question then is whether Mr WYkanak’s challenge to the validity of Draft LEP 142, LEP 142 and DC 226/96 (“the decisions”) is not precluded by ss 35 and 104A by reason of one of the following exceptions:
(1) the decisions were made in bad faith;
(2) the decisions, on their face, were in excess of the authority conferred on the council by the legislation;
(3) the decisions were not related to the subject matter of the EP&A Act.
Mr WYkanak claimed that the council’s decision to make Draft LEP 142 and LEP 142 were not a bona fide attempt to exercise its powers. He did not rely on the other exceptions noted in the Hickman principle.
As to bad faith, Mr WYkanak alleged an improper purpose on the part of the council arising from its conflict of interest. It owned the public land, and it had entered into commercial arrangements in respect of some of that public land. Its purpose in reclassifying that public land from community land to operational land was to bring to fruition its commercial arrangements, not to implement a planning regime. There was in this sense, he said, a predetermined outcome; the Moate Avenue carpark had to be operational land for the council to complete the contracts and options it had entered into in respect of it.
That improper purpose could be deduced, so Mr WYkanak submitted, from a number of matters.
First, the council had entered into contracts or options to sell the Moate Avenue carpark. Although there were no contracts or options in evidence, their existence may be inferred, Mr WYkanak said, from other documents. There was in evidence a copy of a deed made on 4 July 1997 between Metway Bank Ltd, Oceanview and the council, recital A of which stated that the council “has agreed to sell or will agree to sell” the Moate Avenue carpark to Oceanview under a contract of sale entered into or to be entered into between the council and Oceanview. There was also a reference to contracts for sale or options in Mr Newport’s report. On p 4, he noted that, in respect to the Moate Avenue carpark, a contract of sale had been entered into (and DC 226/96 granted). Furthermore, in the minutes of the council meeting on 14 November 1996, there was a reference to contractual arrangements with Oceanview relating to the Moate Avenue carpark, and there was a resolution to vary those contractual arrangements in various ways which at least suggested that the council had granted to Oceanview an option to purchase the Moate Avenue carpark.
Secondly, in Mr WYkanak’s submission, the council did not disclose any of those contractual arrangements in connection with the public exhibition of Draft LEP 142. Section 66(1)(d) of the EP&A Act requires the council to “publicly exhibit such other matter as it considers appropriate or necessary to better enable the draft plan and its implications to be understood”. Details of the contractual arrangements were, according to Mr WYkanak, necessary for that purpose, but they were not the subject of public exhibition.
Thirdly, the council had prepared its timetable for the statutory reclassification process as early as 14 November 1996, but it did not disclose that timetable to the public at that date. In particular, it had resolved, at its meeting on 14 November, to hold a special council meeting on 8 January 1997, but it did not notify the public of that meeting until 7 January 1997, despite advertisements placed in the local newspaper on 21 November 1996, 5 December 1996, and 19 December 1996 announcing the dates “when council meets”.
I am not satisfied that bad faith on the part of the council has been proved.
Although no contracts or options for sale were in evidence, I am prepared to infer, from the documents to which Mr WYkanak referred, that the council had entered into some kind of contractual arrangements with Oceanview in relation to the Moate Avenue carpark. Such an inference is reinforced by the fact that, according to Mr M Issa, who is Oceanview’s project manager, Oceanview had been negotiating with the council for years. As to any such arrangements which may have been entered into before 1996, the council believed that the Moate Avenue carpark was classified as operational land, by virtue of its resolution on 15 July 1994, and in the light of that belief, the council cannot be said to have acted in bad faith in dealing with the land. As to any such contractual arrangements entered into after 1996, when the council was acting upon the assumption that the Moate Avenue carpark was classified as community land, I am unable to deduce bad faith on the part of the council in the absence of evidence of the terms and conditions of such arrangements. They may, for example, have been conditional upon the Moate Avenue carpark being reclassified as operational land, which, if it were so, would not support a finding of bad faith. However, the state of the evidence on this aspect prevents me from drawing any inference one way or the other.
Nor is bad faith on the council’s part demonstrated by its failure to make public any contracts or options for sale. I do not accept that disclosure of such documents was necessary to enable the public to better understand Draft LEP 142 and its implications. The consequence of the making of LEP 142 was the reclassification of the Moate Avenue carpark (as well as other land) as operational land, and as a result to remove it from any restrictions on sale. That consequence was spelled out in the public notice of exhibition of Draft LEP 142. It stated that “the proposed LEP would … allow the potential for the sale …” of the land the subject of the draft, and it expressly noted that the council had “already resolved to issue development consent …” in respect of the Moate Avenue carpark.
It is true that the council did not publicly disclose its timetable for the reclassification process at the time that timetable was set by its resolution of 14 November 1996. But there was no obligation upon the council to do so. Therefore I cannot discern any bad faith on the part of the council for not doing so. Under the EP&A Act, the council was required to give public notice of certain steps in the statutory process, and it did so (I deal later with the precise requirements and council’s compliance with them).
I conclude, therefore, that the decisions were a bona fide exercise by the council of its powers. It follows therefore that ss 35 and 104A operate according to their terms, with the consequence that Mr WYkanak is precluded from challenging the validity of Draft LEP 142, LEP 142 and DC 226/96.
That conclusion would be sufficient for the Court to dismiss the class 4 application, but in deference to Mr WYkanak as an unrepresented litigant and because the grounds of his challenge were argued in any event, I propose to turn to consider them.
Denial of natural justice
Mr WYkanak submitted that members of the public were denied a fair hearing in relation to Draft LEP 142 and LEP 142 (and thus were denied natural justice) by reason of two matters.
First, the public hearing on 23 December 1996, and the council’s special meeting on 8 January 1997, were held within the Christmas and New Year holiday period, with the consequence, so it was claimed, that Mr WYkanak and other members of the public could not reasonably be expected to be available to exercise a right to be heard in opposition to the making of Draft LEP 142 and LEP 142.
Secondly, on three occasions the council closed its meetings to the public, thus denying the public a right to be heard in relation to the council’s dealings with the Moate Avenue carpark.
The duty to accord natural justice, or to act fairly, in the sense of according procedural fairness, arises in relation to a person whose rights, interests or expectations are liable to be affected by the making of a decision. ( Kioa and Ors v West and Anor (1985) 159 CLR 550 per Mason J at p 584; Darling Casino v NSW Casino Authority per Brennan CJ, Dawson and Toohey JJ at p 116).
Mr WYkanak did not claim that he had a direct interest in the making of Draft LEP 142 or LEP 142, nor was there any evidence to show that he had such a direct interest. Rather, his claim, as I understood it, was that the interests of the general public (of which he is a member) were liable to be adversely affected by reclassifying community land to operational land, and that, under the statutory reclassification procedure, members of the public had an expectation that they would be heard in relation to a decision to reclassify community land.
So understood, Mr WYkanak’s claim is not strictly a claim based on a breach of the rules of natural justice, but a claim that the statutory procedures for public participation in the reclassification process were not properly carried out. I will deal with the latter claim presently, but, in my opinion, Mr WYkanak’s claim of breach of the rules of natural justice cannot be sustained because he is not a person whose rights, interests or expectations were liable to be adversely affected by the making of Draft LEP 142 or LEP 142.
Public participation
The claim that the public were denied the right to participate in the reclassification process was not made out.
Provisions regulating the making of local environmental plans are to be found in div 4 of pt 3 of the EP&A Act. Public exhibition of a draft local environmental plan is required by s 66, and cl 12 of the Environmental Planning and Assessment Regulation 1994 (“the Regulation”) provides that the draft must be publicly exhibited for 28 days. Section 67 provides that any person may make a written submission to the council with respect to the provisions of the draft, which the council is required to take into account under s 68(3). Section 68(1) provides that, where the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing, the council shall arrange such a hearing. (It is to be noted that, under s 29 of the LG Act, a council must arrange a public hearing in respect of a proposal to reclassify community land as operational land as if it had received and decided to deal with a submission that the land be so reclassified). Clause 13 of the Regulation provides that, if the council decides that a public hearing is to be held, it must give 21 days’ notice of that hearing in a local newspaper and notify those who requested a public hearing when making submissions. Section 68(2) provides that a report of the public hearing shall be furnished to the council, and the council shall make that report public.
I find that the council took all the steps which the statutory provisions required.
On 14 November 1996, it resolved to prepare Draft LEP 142, and it placed that instrument on public exhibition between 21 November 1996 and 19 December 1996, a period of 28 days.
Eight submissions were received. They were from Federal Airports Corporation on 28 November, Mrs A H and Mr J J Smith (on their own behalf) and from Mr J J Smith (on behalf of “Concerned Citizens”) on 18 December, from Mr John Flowers and from Julie Bindon & Associates (on behalf of Woolworths Ltd) on 19 December, from Ms H Panaretos, from Mr B Tait, and from Steve Masselos & Co (on behalf of Mrs I Panaretos) on 20 December.
None of the persons who made submissions sought a public hearing, and as a consequence, there was no person to whom the council was obliged to give 21 days notice of the public hearing under cl 13 of the Regulation. In passing, I note that it was hardly surprising that no person called for a public hearing, since the council had already scheduled the public hearing which was required by s 29 of the LG Act and it had announced that it would be held on 23 December. Some of the persons who made submissions complained about the timing of the public hearing, but that did not, in my opinion, bring them within the category of persons required to be notified under cl 13 of the Regulation.
In any event, Mr Newport’s report discloses that seven of those eight who had made submissions to the council made submissions at the public hearing. The only exception was the Federal Airports Corporation. Several other persons also made submissions at the public hearing, including Mr WYkanak.
As to the council’s obligation to make Mr Newport’s report public, I note that the council notified all those who had made submissions to the public hearing of its meeting on 8 January 1997 to be held for the purpose of considering Mr Newport’s report and a report on the reclassification proposed under Draft LEP 142. It published a notice to the same effect in a local newspaper on 7 January 1997.
Having regard to these facts, I conclude that the council did not deny public participation in the reclassification process. The statutory opportunities for the public to be heard were implemented, and members of the public did in fact make submissions. I am not dissuaded from that conclusion by the fact that the public hearing and the council meeting were held over the Christmas - New Year holiday period. No doubt the public hearing and the council meeting were held at a time when some members of the public might be unavailable, but there is no obligation on the council of which I am aware to hold meetings at a time for optimum public participation.
Mr WYkanak pointed to the controversial nature of the redevelopment of the Moate Avenue carpark which was acknowledged by Councillor A E Field in her evidence and which is evidenced by the petition containing over 1000 signatures which was tendered. He contended that the controversy should have obligated the council to maximise public participation but it failed to do so.
I do not accept that the controversy surrounding proposals for the redevelopment of the Moate Avenue carpark cast any wider burden upon the council than the necessity to comply with relevant statutory provisions, which it did.
I conclude that Mr WYkanak’s claim on this ground must fail.
As to the closing of meetings to the public, I note that under the provisions of s 10(2) of the LG Act, as in force at the time those meetings were held, a meeting of the council or of those of its committees of which all the members are councillors may be closed to the public in relation to the receipt and discussion of certain items. Included amongst those items were item numbered (c) which referred to commercial information the disclosure of which would be likely to confer a commercial advantage on a competitor of the council, and (d) proposals for the sale or purchase of land, or for the rezoning of land, or for entering into contracts of any kind, if prior knowledge of those proposals could confer an unfair financial advantage on any person. Section 10(3) provided that the grounds on which a meeting is closed to the public must be specified in the decision to close the meeting and recorded in the minutes of the meeting.
The evidence disclosed that the following meetings were closed to the public:
· 13 November 1996: Meeting of the Finance & General Committee. In relation to the item on the agenda entitled “Moate Avenue Car Park Development”, the meeting was closed to the public “… by reason of the property issues involved”;
· 14 November 1996: Extraordinary Council Meeting. In relation to two items on the agenda, one of those items being “Moate Avenue Car Park Development”, the council resolved to exclude the public “… by reasons of the commercial information involved and the sale of property involved”;
· 20 November 1996: Council Meeting. The agenda for the council meeting contained an item numbered (8) entitled “Reclassification of Public Lands”, which referred to a confidential report on the subject by Mrs D Cuthbert, director- town planning services, and which contained both a recommendation that the council close the meeting “by reason of the property and town planning issues involved” and a recommendation that the confidential report be received and adopted.
The minutes of the council meeting for that date disclose, by reference to “item (8)”, that the matter was dealt with in confidential session, and the minutes later disclose that the confidential report was received and adopted.
Although the grounds for closure specified in the respective minutes were not very clearly expressed, it is nevertheless clear from the outline of the agenda item and the reasons given for closure that those grounds related to a commercial advantage of a competitor to the council or the conferring of an unfair financial advantage on any person. Accordingly, I find that in closing those meetings to the public the council was acting within the statutory power conferred upon it.
Mr WYkanak relied on part of s 232(2) of the LG Act which provides that the role of a councillor is, as an elected person, to facilitate communication between the community and the council. He submitted that the closing of meetings was not in conformity with that section, and denied an opportunity for the public to be heard.
In my opinion, s 10(2) is a complete answer to that submission. It expressly permitted closing of meetings in circumstances such as those I have found to pertain. Furthermore, the closing of those meetings does not evidence a denial of public participation in the statutory process of making LEP 142. The parliament has legislated for the specific steps in which the public is involved, and the closing of council meetings in the present circumstances does not infringe those legislative provisions.
Improper purpose
I have already dealt with, and rejected, Mr WYkanak’s claim that the council acted in bad faith in making LEP 142 because it did so for an improper purpose. I turn now to consider the claim of improper purpose as an independent ground for invalidity of LEP 142.
It is settled law that an attempted exercise of power will be vitiated if it is exercised for an ulterior purpose and not for a purpose authorised by the relevant legislation ( Thompson and Ors v Randwick Council (1950) 81 CLR 87 at 106; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 56 ALJR 678 at 679). Having regard to that statement of the law, I understand Mr WYkanak’s claim to be that the council exercised its power to prepare LEP 142 for the purpose of bringing to fruition its contractual arrangements with Oceanview and not for a planning purpose.
This ground, however, has not been made out.
In the first place, as I have earlier said, the legislation contemplates that community land may be reclassified as operational land and thus freed from restrictions on sale which are imposed on community land under s 45 of the LG Act. The legislation expressly provides that the reclassification process may take place by way of the making of a local environmental plan (s 27 of the LG Act). Thus it is incorrect to say that the council was motivated by an ulterior purpose in making LEP 142. The purpose of making LEP 142 so that public land held by the council could be sold is the very purpose contemplated by the legislation.
It is, of course, a matter of difficulty when a council wears two hats. On the one hand, it has a planning role in its area, and on the other hand, it has a commercial interest in the sale of public land so as to reap a financial benefit. One way to avoid a conflict of interest is to arrange an independent assessment of the course it proposes to take. That is what the council did. First, it engaged an independent consultant, Mr Grech, to prepare draft LEP 142, to make submissions in respect of it to the public hearing, and ultimately to furnish a report to the meeting of the council on 8 January 1997. Secondly, as it was required to do by s 29 of the LG Act, the council arranged for a public hearing presided over by Mr Newport who is a barrister and independent of the council.
For these reasons, Mr WYkanak’s challenge on the ground of improper or ulterior purpose must fail.
Failure to consider submissions
As I understood this ground, it amounted to an assertion that the council, in deciding to proceed with the making of LEP 142 by forwarding Draft LEP 142 to the Minister, failed to consider the submissions which were made to it, that is, it failed to take into account relevant matters.
There is no evidence to sustain this ground of challenge.
At its meeting on 8 January 1997, the council had before it a great deal of material relating to the submissions which had been made. It had actual copies of the eight submissions made as a consequence of the public exhibition of Draft LEP 142 to which I have already referred. It had in addition two further written submissions, one by Mr WYkanak and the other by Mr John Smith. It had Mr Newport’s report, which set out a summary of the 11 submissions which were made to the public hearing. And six persons made oral submissions to the actual meeting.
Mr WYkanak bears the onus of proof in this case. He must establish a negative, that is, that the council failed to take into account relevant matters. Where the relevant material is shown to be before the council at the meeting where it passes the resolution in question, it may be impossible to do so (cf Parramatta City Council and Anor v Hale and Ors (1982) 47 LGRA 319 at 339-340). Mr WYkanak has not discharged the onus of proof. Simply because some submissions opposed the making of LEP 142 (and not all the submissions were against that step) does not establish that the council failed to consider them. No evidence at all has been adduced which would permit a contrary conclusion to be drawn, and accordingly, this ground of challenge must fail.
Flawed process
This ground is based on Mr WYkanak’s claim that the council failed to prepare and adopt a plan of management in relation to the Moate Avenue carpark before it embarked upon the reclassification process.
The basis for this claim is that the Moate Avenue carpark was community land prior to the reclassification process. Section 36 of the LG Act provides that a council must prepare a draft plan of management for community land. The council must give public notice of that draft (s 38) and, after considering submissions received concerning the draft, it may adopt the plan of management (s 40). Furthermore, s 44 provides that pending the adoption of a plan of management for community land, the nature and use of the land must not be changed.
As Mr WYkanak pointed out, there was evidence from Mrs Cuthbert that no plan of management was in existence. But, in Mr WYkanak’s submission, when the council began to treat the Moate Avenue carpark as community land, its first obligation was to prepare a plan of management, as s 36 requires. Since it did not do so, he said, it missed, as it were, a step in the process. Furthermore, Mr WYkanak submitted, the resolution to embark on the reclassification process constituted a change in the nature and use of the Moate Avenue carpark, and that was contrary to s 44.
This, ground, however, shows a misunderstanding of the relevant LG Act provisions.
Part 2 of ch 5 of the LG Act deals with public land. Part 2 contains three divisions. Division 1 deals with the classification and reclassification of public land. Division 2 deals with the use and management of community land, and div 3 contains a number of miscellaneous provisions.
Division 1 and div 2 are not dependent upon each other. They deal with quite discrete matters, namely, the classification and reclassification of public land on the one hand and the nature and use of community land on the other. As Mr Austin QC, for the council, submitted, classification or reclassification is not a use, it is a categorisation process.
Once this distinction is appreciated, it can be seen that the adoption of a plan of management is not a prerequisite to the reclassification process. It is a requirement of the use and management of community land.
Nor does the reclassification process itself alter the nature or the use of the land to which it refers. It merely reclassifies that land as operational land. As a consequence, however, the council is enabled to deal with the land in a way that might change the nature and use of the land, but it is that dealing with the land that brings about the change, not the reclassification itself. And that is precisely what is contemplated by the LG Act.
Moreover, a “notion of public accountability” lies at the heart of a plan of management under div 2 (per Beazley JA in Seaton v Mosman Municipal Council and Anor (1996) 93 LGERA 1 at 21). It is a document a draft of which must be publicly exhibited before adoption (s 38) and which, after adoption, must be available for public inspection (s 43). I understand that it is this public scrutiny which Mr WYkanak claims is lacking in this case in relation to the Moate Avenue carpark. But the LG Act imposes a regime of public scrutiny in the reclassification of community land, and, because it involves the making of a local environmental plan, it is a more rigorous public scrutiny than that required for a plan of management under div 2 of pt 2 of the LG Act, since it involves public exhibition (s 68), a public hearing (s 69) and the input of the Minister in the making of the plan under s 70 of the EP&A Act.
For these reasons, the challenge on this ground also fails.
Development consents
The second and third respondents were joined as parties to these proceedings because, as initially framed, Mr WYkanak had sought declarations which challenged the validity of unspecified development consents in relation to community land the subject of Draft LEP 142. Two such development consents were DC 226/96 and DC 31/97 respectively granted to Oceanview. The other such development consent (No 52/97) was granted on 4 February 1998 to Plexvon Pty Ltd, the third respondent, in respect of land noted in Draft LEP 142 as 17 Keats Avenue Rockdale.
During the hearing, Mr WYkanak expressly disavowed any direct challenge to DC 31/97. As to the other development consents, he expressly confined his challenge to a claim that, if LEP 142 were to be declared invalid, those development consents were also invalid.
Only DC 226/96 was granted prior to the date of making of LEP 142. On the assumption that the Moate Avenue carpark was community land prior to that date, it may be that it was beyond the power of the council to grant DC 226/96. But I do not pause to consider the matter, because DC 226/96 was surrendered by Oceanview on 21 November 1997.
Conclusion and orders
Mr WYkanak’s challenge of invalidity is precluded by ss 35 and 104A of the EP&A Act and accordingly, his class 4 application must be dismissed. Even if these sections did not operate to preclude a challenge, Mr WYkanak failed to establish any of the grounds upon which his challenge is based.
I therefore make the following formal orders:
1. The application is dismissed.
2. I reserve the question of costs.
3. The exhibits may be returned.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 22 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.
Associate
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