Drake and Anor. v Minister for Infrastructure, Planning and Natural Resources
[2003] NSWLEC 443
•18/12/2003
>
Land and Environment Court
of New South Wales
CITATION: Drake & Anor. v Minister for Infrastructure, Planning and Natural Resources & Anor. [2003] NSWLEC 443 PARTIES: APPLICANTS:
RESPONDENTS:
Drake & Anor.
Minister for Infrastructure, Planning and Natural Resources & Anor.FILE NUMBER(S): 10714 of 2002 CORAM: Bignold J KEY ISSUES: Jurisdiction :- Whether Court has jurisdiction to determine validity of Act of Parliament
LEGISLATION CITED: Clyde Waste Transfer Terminal (Special Provisions) Act 2003
Land and Environment Court Act 1979, s 20CASES CITED: DATES OF HEARING: 18/12/2003 EX TEMPORE
JUDGMENT DATE :
12/18/2003LEGAL REPRESENTATIVES:
APPLICANTS:
In personSOLICITORS
N/AFIRST RESPONDENT:
Mr M Wright, Barrister
SECOND RESPONDENT:
Mr D BrigdenSOLICITORS
FIRST RESPONDENT:
Dept of Infrastructure, Planning and Natural Resources
SECOND RESPONDENT:
Freehills
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BIGNOLD J
10714 of 200218 December 2003
v
MINISTER FOR PLANNING and COLLEX PTY LIMITED
1. HIS HONOUR: The Court has before it two Motions filed in proceedings which were concluded by orders made by the Court on 7 November 2003 upholding an appeal made by Mr Drake and Mr Brzoson pursuant to the Environmental Planning and Assessment Act, s 98 against the decision of the Minister to grant development consent to a designated development application. The appeal was upheld. Development consent was refused and by order No.4, no order as to costs was pronounced.
2. Mr Drake and Mr Brzoson filed their Notice of Motion on 12 December 2003, returnable today, claiming declaratory relief and other orders as specified in the Notice of Motion. The Notice of Motion claimed various forms of relief in a wide ranging series of claims running into some 19 paragraphs.
3. On 15 December 2003 the Minister for Planning filed a Notice of Motion in the same proceedings seeking an order that the Applicants’ Notice of Motion be struck out.
4. Both Motions were referred to me today after the matter was first mentioned before the Registrar at call-over. The parties agreed that it would be appropriate for me to entertain initially the Minister’s strike-out Motion.
5. In support of the strike-out Motion, Counsel for the Minister has made a number of submissions along conventional lines, the force of which is generally irresistible. In particular, the submission which must be accepted is that the wide ranging claims to relief contained in the Applicants’ Notice of Motion are not properly advanced to the Court in proceedings that have been regularly concluded, particularly in light of the fact that those proceedings were in class 1 of the Court’s jurisdiction, being an objector appeal pursuant to the Environmental Planning and Assessment Act, s 98 where the Court’s orders pronounced on 7 November 2003 have been regularly formalised by a Minute issued under the seal of the Court by the Registrar.
6. Mr Wright advanced further submissions going to matters not procedural but substantive, involving the question of the Court’s jurisdiction to grant the relief claimed in the Applicants’ Notice of Motion, even if those claims had been advanced in a proper vehicle, namely separate class 4 proceedings brought in this Court. In particular, it was submitted that insofar as the relief claimed includes a declaration that an Act of Parliament passed on 15 December this year was invalid, it is beyond this Court’s jurisdiction.
7. The Act in question is an Act entitled the Clyde Waste Transfer Terminal (Special Provisions) Act 2003. That Act commenced on the date of assent, 15 December, and in the preamble to the Act it is stated to be an Act to permit the development of certain land at Clyde for the purposes of the waste transfer terminal. Although the Act contains a number of sections which may in the fullness of time require closer study, it is I think sufficient to say that the Act essentially granted development consent to the carrying out by Collex Pty Ltd of the development of a waste transfer terminal on land forming part of the Clyde rail marshalling yards. This was the very development the subject of the proceedings before this Court which were concluded in the manner that I have earlier indicated by the Court upholding the objectors’ appeal and refusing development consent to that development.
8. To the extent to which the Applicants’ claims to relief in their Notice of Motion depend upon a successful attack upon the validity of that Act of Parliament, it is clear in my view that Mr Wright’s submission is correct that such a claim to a declaration of invalidity of the Act of Parliament falls outside this Court’s jurisdiction. As was pointed out in the course of argument, it is indisputable that the Supreme Court of New South Wales, being the superior court of this State, vested with general jurisdiction has the jurisdiction to entertain any claim that an Act of Parliament is invalid. However, as I also pointed out, it is also relevant to observe that very few cases have come before the Supreme Court in which the validity of an Act of the State Parliament has been successfully challenged. Nonetheless, as a matter of jurisdiction there can be no doubt that the Supreme Court possesses the jurisdiction to entertain such a case.
9. Mr Wright also submitted that so much of the other relief claimed by the Applicants in their Notice of Motion, which might generally be described as relief in the nature of declarations concerning the meaning and effect of the Act of Parliament and in particular the extent to which it authorises any works to be carried out on the subject land, was also beyond the jurisdiction of the Court. This was said to be so because the Court’s jurisdiction to grant such declaratory relief, being founded upon the provisions of s 20 of the Land and Environment Court Act 1979 is not attracted, because the aforesaid Act has not been included in subs (3) of s 20, which specifies relevantly what laws are planning or environmental laws for the purpose of s 20(2). That is the provision of the Act which gives this Court
- the same civil jurisdiction as the Supreme Court to hear and dispose of proceedings (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract or (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function.”
10. In my view, this argument is not nearly so compelling as the argument based upon the clear absence of jurisdiction in this Court to entertain a claim that the Act of Parliament is invalid.
11. As was pointed out in the course of argument, it is at least arguable and cogently arguable that the effect of the Clyde Waste Transfer Terminal (Special Provisions) Act 2003, in granting development consent to the waste transfer terminal at the Clyde rail marshalling yards, is relevantly a right conferred by a planning or environmental law. This is because of the content and manner in which the Act of Parliament has been drafted and I refer in particular to the provisions of s 4 which provide
- Development consent is taken to have been granted under the Environmental Planning and Assessment Act to carry out development on the subject land for the purposes of a waste transfer terminal subject to conditions et cetera.”
12. The effect of such language ineluctably means that development consent is granted under the Planning Act and is not something granted de hors or beyond the ambit of the Planning Act. The fact that the Planning Act is intended to apply to the development consent granted by s 4 is made clear by the provisions of s 9 of the Act which specify sections of the Planning Act which do not apply in respect of the development consent, they being half a dozen or so specific provisions with the implication which would appear to be inevitable that the other provisions of the Planning Act apply.
13. In these circumstances, I am not convinced by the argument that claims to declaratory relief in respect of the meaning, scope of operation, extent of the development authorised and questions of whether there are other requirements to be satisfied in the light of the Clyde Waste Transfer Terminal (Special Provisions) Act 2003 for the carrying out of the approved development, if brought in appropriate class 4 proceedings, would necessarily fall outside this Court’s jurisdiction, as conferred by of the Land and Environment Court Act, s 20.
14. The Minister has made good his claim that the Applicants’ Notice of Motion should be summarily struck out, except for a discrete matter which I shall come to presently concerning the question of costs in those concluded class 1 proceedings. However, in so concluding, it would follow that it is open to the present Applicants to bring forward claims within the Court’s jurisdiction as formulated in their Notice of Motion in appropriate proceedings but that is a matter entirely for the Applicants, who in their address before me today emphasised that particular form of relief, namely declarations as to the meaning of the authorisation granted by the Clyde Waste Transfer Terminal (Special Provisions) Act 2003 rather than their case for invalidity of the Act based upon constitutional law considerations, including Federal constitutional law matters.
15. It would appear that if the Applicants would wish to bring such proceedings challenging the validity of the Act of Parliament on constitutional grounds, then any such proceedings brought in the Supreme Court could also prima facie include the claims to declaratory relief, but as was raised during the debate, any claims to invalidity of the Act based upon the provisions of the Australian Constitution or Federal constitutional law would be required to be attended by the usual procedural requirements imposed by the Federal Judiciary Act.
16. I mention these matters both in these reasons for judgment and in the course of argument because Mr Drake and Mr Brzoson, who appeared for themselves as laypersons in the class 1 proceedings, continue to appear for themselves without the benefit of legal representation and challenges to the validity of Acts of Parliament on Federal constitutional grounds are matters of some complexity, including a procedural regime set in place by the Judiciary Act of the Commonwealth.
17. I mentioned earlier that there is an aspect of the Applicants’ Notice of Motion which may, and I emphasise may, justify some further consideration as to whether a case can be made out to re-open the Court’s order in the concluded class 1 proceedings that there be no order as to costs. That order of course reflected the conventional approach taken by this Court to costs of planning appeals, namely that unless there be exceptional circumstances a costs order is not normally made in planning appeals which have been determined on the planning merits.
18. Because the order reflected conventional practice, it was made by me without giving the parties any opportunity to advance any arguments on the question of costs.
19. As I understand the Applicants’ desire to re-open that particular order of the Court, it is founded not simply upon the fact of the subsequent enactment of the Clyde Waste Transfer Terminal (Special Provisions) Act 2003 but upon the proposition that the possibility of such an enactment being made was in the mind or contemplation of one or either of the respondents throughout the litigation history in this Court and that if the Applicants had been put on notice, they would have reconsidered their position in conducting the litigation which was conducted over this continuous period of some twenty hearing days and involved case preparation of great magnitude and effort.
20. The parties have agreed that the best way forward in relation to that discrete matter is for me to give leave to the Applicants to file any application within the next fourteen days seeking a re-opening of the concluded judgment for the purpose of seeking an order for costs in those proceedings in lieu of the conventional order made that there be no order as to costs.
21. I propose to adopt the parties’ commonly held position in relation to that matter and grant the leave as sought to the Applicants but require them to clearly indicate against which if not both of the respondents such an order is claimed and the basis for the making of such order which would justify the re-opening of the concluded judgment to the limited extent that I have indicated. The Motion should be supported by affidavit evidence establishing the basis for the claim to costs and the claim to re-open the concluded proceedings in relation to order 4.
22. I should also note finally that the Applicants’ Motion sought, pursuant to the statutory slip rule, a further determination by the Court in relation to the issue of site remediation of contaminated land. That issue had been raised at the hearing of the class 1 proceedings but was not the subject of any final determination by me in my judgment, nor for that matter was another matter raised by the Applicants, namely the question of whether the development required Part 3A approval under the Rivers and Foreshores Improvement Act by dint of its propinquity to the Duck River.
23. In my view, the slip rule does not provide any justification for re-opening the concluded hearing for the purpose of making further determinations in respect of the contaminated land and Rivers and Foreshores Improvement Act issues. The class 1 proceeding was determined entirely in favour of the Applicants on numerous grounds, legal and merit-wise, that is planning-wise. Many issues were opened up in the proceedings and explored. Not all of them were the subject of determinations by the Court and the conclusions and orders made by the Court in those proceedings did not depend upon any such determinations being made.
24. In these circumstances, I can see no utility, even if the power were available to re-open the concluded proceedings to revive those issues.
25. Accordingly, for all of the foregoing reasons I uphold the Minister’s Motion and order that the Applicants’ Notice of Motion filed in the proceedings on 12 December 2003 be struck out, at the same time giving leave as earlier articulated to the Applicants within the fourteen day period to file a supplementary Motion in respect of re-opening on the question of costs for the purpose of making a claim for costs against one or both of the respondents to be nominated in the Motion.
26. As I have said, in upholding the basis for the Minister’s strike-out Motion, it remains a matter for the Applicants to determine what if any future proceeding in class 4 of the Court’s jurisdiction they may wish to make. That is a matter which I emphasise that it is entirely for them.
27. The Minister seeks his costs of the strike-out Motion which is opposed by the Applicants. The Motion was very belatedly filed, although soon after the filing of the Applicants’ Motion. The Applicants’ Motion, although struck out, for the reasons I have given articulates claims which if put in proper form in appropriate class 4 proceedings raise matters prima facie within the Court’s jurisdiction and cognisable by the Court. I am here referring to the matters that I have previously mentioned concerning declaratory relief in relation to the Act of Parliament and what it authorises or may not authorise, as the case may be.
28. I have also been persuaded prima facie that the re-opening of the concluded judgment at least on the question of costs remains a distinct and viable possibility. For these reasons I am of the opinion that no order for costs should be made in relation to today’s proceedings and I so order.
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