F & D Bonaccorso Pty Limited v Canada Bay City Council

[2007] NSWLEC 233

Land and Environment Court

of New South Wales

CITATION:

F & D Bonaccorso Pty Limited v Canada Bay City Council [2007] NSWLEC 233

PARTIES:

APPLICANT:
F & D Bonaccorso Pty Ltd

FIRST RESPONDENT:
City of Canada Bay City Council

SECOND RESPONDENT:
Arinson Pty Ltd

THIRD RESPONDENT:
Omaya Holding Pty Ltd

FOURTH RESPONDENT:
Omaya Investments Pty Ltd

FIFTH RESPONDENT:
The Registrar General

FILE NUMBER(S):

40134 of 2003

CORAM:

Biscoe J

KEY ISSUES:

Development Consent :- invalidity conceded by respondent on one ground – applicant seeking to press further alleged grounds of invalidity – whether sufficient utility in permitting that course.

LEGISLATION CITED:

Land and Environment Court Act 1979 s 124
Local Government Act 1993 s 676

CASES CITED:

Humane Society International Inc v Kyodo Senpaku Kaisha Limited [2006] 154 FCR 425

DATES OF HEARING:

7 March 2007

EX TEMPORE JUDGMENT DATE:

7 March 2007

LEGAL REPRESENTATIVES:

APPLICANT:
Mr B Coles QC and Mr J Doyle, barrister

SOLICITORS
Thomson Playford

FIRST RESPONDENT:
Dr J Griffith SC and Mr S Free
FIFTH RESPONDENT:
Mr P Walsh

SOLICITORS:

FIRST RESPONDENT
Maddocks
FIFTH RESPONDENT
Department of Lands

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

7 March 2007

40134 of 2003

F & D BONACCORSO PTY LIMITED v CANADA BAY CITY COUNCIL

JUDGMENT

1 HIS HONOUR: One of the claims in these proceedings is that the development consent granted by the first respondent, Canada Bay City Council, for development application No 336 of 2003 is invalid and of no effect. The council has conceded that it is invalid and of no effect because of failure to comply with mandatory advertising requirements. The trial is in progress before me and the applicant wishes to press additional grounds of alleged invalidity because, in its perception, they are more serious breaches by the council of its obligations and, it says, there is an educative utility or public interest in the Court adjudicating upon them. The council acknowledges that the relief claimed should be granted. It raises no argument of general discretion or under section 25B of the Land and Environment Court Act 1979 against the granting of such relief. I am minded to grant the relief on the conceded ground.

2 The question is whether there is sufficient utility in the Court continuing to entertain the additional grounds of invalidity which the applicant seeks to press. To put it another way, the development consent is dead; what is the utility in firing more bullets into the corpse?

3 The applicant raises the following considerations in support of continuing to agitate the further alleged grounds of invalidity. First, the source of the Court’s power to grant relief is said to be s 124 of the Land and Environment Court Act 1979 which empowers the Court to make an order only where “it is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed.” Reference was also made to s 676 of the Local Government Act 1993. It is said that evidence as to all breaches of the law when the development consent was granted is relevant to the exercise of the Court’s discretion, whether or not the orders are consented to by the parties. Next, it is said that if I were to dispose of this claim on the inadequate advertising ground, the council would be able to say that there had been merely a technical slip. Let me address that point immediately. If I do not deal with the additional grounds, I wish to make it clear that I am saying nothing at all about their merits. They may be meritorious; they may not be.

4 Finally, the utility of environmental litigation was submitted to extend far beyond the end result of a particular administrative decision that might be under review, to the public interest of exposing public conduct in breach of the law. This last point was developed and encapsulated in two propositions. The first was that the public ought to know if the council has “misbehaved”. The second is that the issues the subject of the additional grounds may arise in the future in the context of another development application if the council falls into what is said to be the same error again. So it is said that it would be educative for the Court to adjudicate in relation to the additional grounds.

5 In support of that proposition, reference was made to what has been called the Japanese whaling case: Humane Society International Inc v Kyodo Senpaku Kaisha Limited [2006] 154 FCR 425. The applicant in that case sought an injunction prohibiting whaling over an expanse of the Southern Ocean adjacent to Antarctica. As the respondent was not resident in Australia, leave was required to proceed. The primary judge declined to grant leave, accepting a submission by the Commonwealth Attorney General that the proposed injunctive orders could not be practically enforced. On appeal, the majority took a different view. They said at 432 in a passage on which the applicant relies:

Although deterrence is more commonly used in the vocabulary of the law than ‘education’, the two ideas are closely connected and must surely overlap in areas where a statute aims to regulate conduct. Thus, ... the grant of a statutory public interest injunction to mark the disapproval of the court of conduct which the parliament has prescribed, ought to discourage others from acting in a similar way, can be seen as also having an educative element. For that reason alone, the grant of such an injunction may be seen, here, as potentially advancing the regulatory objects of the EPBC Act... The same considerations may operate, perhaps more strongly, in relation to the declaratory relief that is also sought by the applicant.

The issue in that case was whether the Court should exercise its jurisdiction to grant an injunction even though it could not be practically enforced against a foreign respondent. The case is distinguishable because there the foreign respondent did not concede that an injunction should be granted.

6 Competing considerations may be marshalled in opposition to further agitation of the further alleged grounds of invalidity. First, the applicant will obtain the relief it seeks on the basis of the conceded ground of invalidity. Secondly, a substantial commitment of judicial resources will be required in the remaining hearing time and in judgment writing time (particularly the latter) to fully address the further four alleged grounds of invalidity. Thirdly, this may in turn visit additional and, it might be thought, unnecessary costs on the parties. I take into account that evidence in relation to those issues has already been adduced in documentary form at least, but the material is voluminous and the amount of time that will be required to address it adequately in a judgment and in any further submissions is likely to be substantial. Fourthly, the time required may delay other litigants from having their cases heard. Finally, analogies may be found in other areas of the law, for example, a negligence case. If a defendant admits that it is liable in negligence in one of, say, five respects alleged, there is normally no utility in the plaintiff pressing, or the Court determining, the other grounds. To do so might, in a hypothetical case, take days if not longer.

7 In my view, in the circumstances of the case, there is insufficient utility in the applicant further agitating the additional grounds of invalidity. Accordingly, I decline to allow it to do so.