Goldberg v Waverley Council - [2007] NSWLEC 259

No judgment structure available for this case.

Reported Decision: 156 LGERA 27

Land and Environment Court

of New South Wales

CITATION: Goldberg v Waverley Council [2007] NSWLEC 259
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Paul Anton Goldberg
RESPONDENT:
Waverley Council

FILE NUMBER(S): 10058 of 2007

CORAM: Biscoe J

KEY ISSUES: Jurisdiction :- whether under s 39(2) Land and Environment Court Act 1979 the Court, for the purposes of hearing and disposing of an appeal from a council development refusal, has council’s functions and discretions as roads authority to grant consent for roadwork under s138 Roads Act 1993 and (in relation to that consent) as determining authority under Part 5 Environmental Planning and Assessment Act 1979

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 78A(8), 79C, 97, 110, 111, 112 ,112A, 112C, 112D, 113, 114, 115, 119
Environmental Planning and Assessment Regulation 2000 cls 228(1), 243
Land and Environment Court Act 1979 ss 4, 38, 39
Roads Act 1993 ss 6(1), 7, 138, 139(1)

CASES CITED: Bailey v Forestry Commission of NSW (1989) 67 LGRA 200;
Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413;
Connery v Manly Council (1999) 105 LGERA 451;
Gibson v Mosman Municipal Council (2001) 114 LGERA 416;
Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353;
Jarasius v Forestry Commission of NSW [No 1] (1988) 71 LGRA 79;
Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51;
Kogarah Municipal Council v Kent (1981) 46 LGRA 334;
McDougall v Warringah Shire Council (1993) 30 NSWLR 258;
Mirvac Projects No 2 Pty Ltd v Concord Municipal Council (1993) 81 LGERA 441;
North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740;
Paino v Woollahra Municipal Council (1990) 71 LGRA 62;
Prineas v Forestry Commission of NSW (1983) 49 LGRA 402;
Prineas v Forestry Commission of NSW (1984) 53 LGRA 160;
Rundle v Tweed Shire Council (1989) 68 LGRA 308;
Sankey v Whitlam (1978) 142 CLR 1;
Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733;
Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104;
Smith v Wyong Shire Council (2003) 132 LGERA 148 (CA);
Strathfield Municipal Council v Drew (1985) 1 NSWLR 338;
Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724;
Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329;
Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598

DATES OF HEARING: 20 April 2007

DATE OF JUDGMENT:
25 May 2007

LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Galasso SC
SOLICITORS:
Landerer & Company
RESPONDENT:
Mr T Robertson SC
SOLICITORS:
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

25 May 2007

10058 of 2007 PAUL ANTON GOLDBERG v WAVERLEY COUNCIL
JUDGMENT

1 HIS HONOUR: This case concerns the extent of the Court’s power to exercise, pursuant to s 39(2) of the Land and Environment Court Act 1979 (Court Act), the functions and discretions of a council on an appeal from a decision of that council to refuse a development application. Specifically, it raises the question whether, on such an appeal, the Court has the power to grant consent under s 138 of the Roads Act 1993 (Roads Act) to the carrying out of work on a public road owned by the council in circumstances where, in order to do so, it has to exercise the functions and discretions of the council under Pt 5 of the Environmental Planning and Assessment Act 1979 (EPA Act). There is no authority precisely on point.

2 The following preliminary questions of law are before the Court:

Land and Environment Court Act 1979

EPA Act?

Roads Act 1993

FUNCTIONS AND DISCRETIONS

3 The appeal is a merits appeal in Class 1 of the Court’s jurisdiction. The Court has jurisdiction to hear such an appeal under s 17(1)(d) of the Court Act and s 97 of the EPA Act. The functions and discretions of the Court on such an appeal are stated in s 39 of the Court Act which relevantly provides:

39(1)

(2)

3)

(4)

(5)

(6)

Local Government Act 1993

Environmental Planning and Assessment Act 1979

“Functions” includes powers, authorities and duties: s 4.

4 Whether the Court has the functions and discretions of the council which are the subject of the preliminary questions depends upon the width of the words in s 39(2) “all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal”.

5 When considering the questions it is relevant to take into account that the practical exercise of the Court’s powers on the hearing and disposal of a merits appeal in these classes of the Court’s jurisdiction is governed by s 38 of the Court Act, which provides:

CIRCUMSTANCES OF THE CASE

6 On 10 July 2006, the applicant made a development application to the respondent council for “Demolition of existing dwelling; subdivision of land into 2 lots; Extension of local road; and new driveway” at 362 Birrell Street, Tamarama. The council refused the application by notice of determination dated 4 December 2006. The applicant appealed to this Court.

7 The subject land does not have vehicular access. This is notwithstanding that the allotment fronts an unformed “road” as defined in the Roads Act. That road, Birrell Street, is vested in the council. The applicant is entitled, as of right, to access across the boundary of its land and Birrell Street under s 6(1) of the Roads Act which provides:

The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road.

8 The applicant intends to exercise the right of access conferred by s 6(1). In order to give effect to that access, the applicant requires the construction of a partial extension of Birrell Street for a distance of about 40 metres from the point where it ceases to be formed to an alignment with the subject land sufficient to provide vehicular access. Such construction constitutes work in, on or over a public road which is prohibited otherwise than with the consent of the appropriate road authority under s 138(1) of the Roads Act which provides:

138

Maximum penalty: 10 penalty units.

9 A consent referred to in s 138(1) may be granted on the appropriate road authority’s initiative or on the application of any person: s 139(1). Birrell Street is an existing public road, partly unmade, for which the respondent council is the roads authority under s 7.

10 The Statement of Environmental Effects accompanying the development application stated: “Accompanying the DA is an application under Section 138 of the NSW Roads Act 1993 proposing the construction of an extension of Birrell Street and a driveway access to the subject land”. A separate piece of paper constituting such an application is not in evidence and may not have been enclosed. Nothing turns on that. It is plain that the applicant was intending to make an application for consent under s 138 of the Roads Act. The council proceeded on that basis because in its notice of determination one of the reasons that it gave for refusing the development application was:

That Council refuse its owner’s consent to the extension of Lower Birrell Street as proposed in development application No. 412/06 as the local road authority and vested owner of the subject land under Section 138 of the Roads Act 1993.

11 Other reasons for refusing the development application included the following that related specifically to the proposed formation of the unformed part of Birrell Street:

12 Thus there is a close interrelationship between the proposed roadwork and the development application for the subdivision.

13 There was a reference to “extension of local road” in the description of the proposal in the development application. However, the proposed construction works on Birrell Street are permissible without development consent. The road is zoned 6(a) pursuant to the Waverley Local Environmental Plan 1996. Under cl 4, roads are prima facie prohibited in that zone. However, by cl 43 and Sch 4 (item 8), no provision of that local environmental plan can operate to prohibit or restrict the construction of a road.

PART 5 EPA ACT

14 The present case does not fall within Pt 4 of the EPA Act because no development consent is required for the proposed works on Birrell Street. However, as council consent under s 138 of the Roads Act is required for the proposed roadwork, the separate stream of regulation in Pt 5 of the EPA Act has to be satisfied before that consent can be given. This flows from the trigger for the application of Pt 5 (ss 110 to 115), namely, an “approval” for an “activity”, as defined in s 110.

15 Pt 5 has two streams. The first stream is regulation of the manner of carrying out an activity where the determining authority is carrying out the activity itself. The second stream is regulation of matters by determining authorities when considering the grant of approval to activities by others, where the activities are not governed by Pt 4 of the EPA Act. The second stream applies in the present case.

16 Divisions 1 to 3 (ss 110 – 115) of Pt 5 are relevant. Division 1 comprises ss 110 to 110E. Section 110 is a definition section. The definition of “activity” in s 110(1) includes “the carrying out of a work” but excludes anything for which development consent under Pt 4 is required. “Determining authority” in relation to an “activity” is defined to include a “public authority whose approval is required in order to enable the activity to be carried out”. These definitions trigger the application of Pt 5 as a separate stream of regulation from Pt 4.

17 The proposed roadwork in Birrell Street is an “activity” for which no development consent under Pt 4 is required. The respondent council, in relation to that activity, is a “determining authority” whose approval is required under s 138 of the Roads Act in order to enable the activity to be carried out. Thus Pt 5 applies to the consent required by s 138 of the Roads Act. As explained below, this means in the present case that s 111 in Pt 5 is engaged.

18 Division 2 of Pt 5 comprises s 111. This is the primary or pivotal provision in Pt 5. It casts an obligation on a determining authority in its consideration of an activity to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity. Section 111(1) provides:

111 (1)

19 The s 111(1) obligation to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity, appears to give a more exacting content to the preceding umbrella phrase “consideration of an activity” than if that obligation were not expressed. In this respect s 111(1) may be contrasted, for example, with s 79C of the EPA Act which requires a consent authority, when determining a development application, to “take into consideration” prescribed relevant matters without the legislature giving any equivalent direction as to what such consideration includes. However, there must be imported into this statutory obligation under s 111(1) a concept of reasonableness. In Prineas v Forestry Commission of NSW (1983) 49 LGRA 402 at 417 Cripps J held:

to the fullest extent possible all matters affecting or likely to affect the environment

20 Section 111 is pivotal to a proper working of Pt 5 of the Act: Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 at 366 (CA). The duty under s 111 arises at the time of “consideration of an activity”. Any additional duty imposed by s 112 arises, relevantly, when it is proposed to “grant an approval in relation to an activity”: Jarasius v Forestry Commission of NSW [No 1] (1988) 71 LGRA 79 at 95 (Hemmings J). The determining authority has a duty under s 111, as a condition precedent to granting approval, to determine the extent to which an activity is likely to affect the environment: Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at 211 (Hemmings J). The duty to prepare and assess an environmental impact statement arises pursuant to s 112, if the carrying out of the activity is likely to significantly affect the environment (ibid). In Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 (CA) at [70] Mason P said:

There is no reason to restrict the duty imposed by s 111 to any time frame in relation to an activity, at least in relation to a determining authority that carries out an activity...Division 3 supplements this duty in certain categories of activities for which an environmental impact statement is required, being the categories identified in s 112(1)”

The concept of an

within Pt 5 is protean….

and

decisions are involved. Competing interests have to be weighed...”

21 Division 3 (ss 112 – 115) of Pt 5 concerns specified activities for which an environmental impact statement is required. As the present hearing is limited to preliminary questions of law, there is no evidence before the Court to indicate whether or not Div 3 might apply in the present case. Section 112 provides in part:

112

Wilderness Act 1987

(1B) Without limiting subsection (1), a determining authority must not carry out an activity, or grant an approval in relation to an activity, being an activity that is in respect of land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, unless a species impact statement, or an environmental impact statement that includes a species impact statement, has been prepared (in each case) in accordance with Div 2 of Pt 6 of the Threatened Species Conservation Act 1995 .
…

(2) The determining authority or nominated determining authority, as the case requires, shall, as soon as practicable after an environmental impact statement is obtained by or furnished to it, as referred to in subsection (1), but before giving notice under section 113(1), furnish to the Director-General a copy of the statement.
…

…

22 Section 112C prohibits a determining authority (not being a Minister) from granting an approval to carry out an activity that is to be carried out in respect of land that is, or is part of, a critical habitat without the “concurrence” of the Director-General of National Parks and Wildlife. Section 112D prescribes matters that must be considered by the Director-General of National Parks and Wildlife as the concurrence authority.

23 Section 113 provides for the publicity and examination of environmental impact statements. Notice in the prescribed form and manner must be given that a copy of an environmental impact statement may be inspected at the office of the determining authority and the Department or other premises operated or controlled by them. Any person, during the period prescribed by the notice, may inspect the environmental impact statement (subject to a public interest confidentiality exception) and make submissions to the determining authority. The determining authority must forward the submissions to the Director-General and (if the activity is a scheduled activity under the Protection of the Environment Operations Act 1997) to the Environment Protection Authority. Except where the Minister has directed an inquiry under s 119, the Director-General may examine the environmental impact statement and any submissions, and, if it does so, shall forward to the determining authority a report containing findings and any “recommendations”.

24 Section 114 provides that where the Minister has directed that an inquiry be held into an activity, the Minister shall forward a copy of the findings and recommendations to the determining authority and may give “advice” to the authority as to whether, in the Minister’s opinion, there are or are not environmental grounds which would preclude the carrying out of the activity in various circumstances.

25 Section 115 provides that regulations may be made for or with respect to (among other things) the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment. Such regulations have been made: Pt 14 of the Environmental Planning and Assessment Regulation 2000. Clause 228(1) prescribes that one of those factors is, for activities of a kind for which specific guidelines are in force under that clause, the factors referred to in those guidelines. Such guidelines were issued by the Department of Urban Affairs and Planning in September 1996. They address when an environmental impact statement is required for a road. Clause 243 of the Environmental Planning and Assessment Regulation requires a determining authority to prepare a report on any activity for which an environmental impact statement has been prepared as soon as practicable after a decision is made by the determining authority to, relevantly, approve or disapprove the carrying out of the activity. The report must comment on and have regard to a number of prescribed matters. The determining authority must make the report public as soon as practicable after it has been completed.

SCOPE OF SECTION 39(2) OF THE COURT ACT

26 The Court of Appeal has considered the ambit of s 39(2) of the Court Act in a number of cases, but not with one voice. It has been said that the language of s 39(2) is “wide and clear”: Kogarah Municipal Council v Kent (1981) 46 LGRA 334 at 336 per Reynolds JA. On the other hand, it has also been said that it is “wide and ambiguous”: McDougall v Warringah Shire Council (1993) 30 NSWLR 258 at 261 per Kirby P.

27 Initially, in 1981, the Court of Appeal in Kent gave s 39(2) a wide construction. Kent has never been overruled. But there are traces of a narrower approach in some later Court of Appeal decisions in the 1980’s: Strathfield Municipal Council v Drew (1985) 1 NSWLR 338, North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740, Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 and Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104. Then Kirby P embraced the wider construction and upheld the authority of Kent in his powerful judgment in McDougall. Recently, the Court of Appeal unanimously held that the wider approach of Kirby P in McDougall “has much to commend it”: Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329 at [60] per Tobias JA (Hodgson and Santow JJA agreeing).

28 In the seminal case of Kent the Court of Appeal held that the Land and Environment Court had power under s 39(2), when upholding an appeal from the refusal of the building application, to vary or abolish a building line fixed by the council pursuant to s 308(1) of the Local Government Act 1919, insofar as the proposed structure infringed it. The Court of Appeal’s wide construction of s 39(2) was that it empowered the Court to exercise all functions and discretions open to the council when the application for approval was before it. Reynolds JA said at 336 that “the language of s 39(2)…is wide and clear and to me it means…that the court could do whatever the council could do to dispose of the appeal”. Similarly, Hutley JA at 337 said “What the council could do, [the court] could do”. Glass JA said at 337 “The application is such as to trigger the exercise of any relevant power vested in the council or court charged with the responsibility of accepting or rejecting the application absolutely or conditionally”.

29 A narrower approach was taken in Drew. The majority there held that, on appeal from a deemed refusal of consent to a development application, this Court had no power to exercise a council power to give approval for a building (a crematorium) under s 51(2) of the Public Health Act 1902. That was because the latter power had “nothing to do with the development application as such” (at 345, per McHugh JA, Samuels JA agreeing).

30 In Mayoh a council planning ordinance provided that where it appeared to the council that the purpose for which land is reserved could not be carried into effect within a reasonable period, the council may approve the erection thereon of buildings and the carrying out of works. On an appeal from the council’s refusal of a development application to erect a building and carry out works on land so reserved, the Court of Appeal held that s 39(2) of the Court Act empowered the Land and Environment Court to exercise the function of the council and form an opinion as to whether the purpose for which the land was reserved could not be carried into effect within a reasonable period. McHugh JA (with whom Hope and Samuels JJA agreed) held at 746 that when the temporal connection of the opinion and the development application were combined with the conditional nature of the power, which the council exercised in respect of an application for development approval, there was a high degree of persuasion in the contention that the formation of the opinion or conclusion was “in respect of the matter the subject of the appeal”. It was said that a function of the council was “at the heart of the matter which is the subject of the appeal” and, therefore, within s 39(2) it was a function which the council “had in respect of the matter the subject of the appeal”. It was acknowledged that there could be cases in which by express words or necessary intendment a planning instrument evinced an intention to exclude the s 39(2) power.

31 In Claude Neon a development application was made to a council for consent for a structure which projected over a public road owned by the council. Section 77(1)(b) of the EPA Act provided that a development application may be made by the owner of the land or by any other person with the owner’s consent. The Court of Appeal held that the council as the owner of the road was empowered to give its consent to the making of the development application. If it did not do so and the applicant for consent appealed to the Land and Environment Court against the refusal of its development application, then by virtue of s 39(2) the Court had power to give its consent to the making of the application. Hope JA (with whom Priestley and Meagher JJA agreed) held at 732: “The giving of its consent to the making of an application for development approval is undoubtedly a function of the council, and it is a function the exercise of which is basic to its function to grant development approval in such a case. If the view which I have expressed is right, namely, that a council can give its consent to the lodging of an application by giving development approval, in my opinion s 39(2) places the Land and Environment Court, upon an appeal, in the same position as the council”.

32 Claude Neon was followed by the Court of Appeal in Rovili.

33 In Paino v Woollahra Municipal Council (1990) 71 LGRA 62 Hemmings J applied Claude Neon and held that the Land and Environment Court had power under s 39(2) to give its consent to a development application to convert a public road owned by the council from a pedestrian to a vehicular way. His Honour observed that the functions or discretions that a council has in respect of the matter the subject of an appeal is a wider concept than the precise terms of its decision. That observation was noted without disapproval by the Court of Appeal in Ipoh at [52] and by Kirby P in McDougall at 264.

34 The authority of Kent and its broad approach were upheld by Kirby P in McDougall v Warringah Shire Council (1993) 30 NSWLR 258. In that case the appellant kept pigeons at his home in a loft erected for that purpose. The respondent council resolved to prohibit the keeping of pigeons on the property. It was empowered to make such a resolution by s 289(e) of the Local Government Act 1919. The appellant subsequently made a building application to the council to approve additions and alterations to, and relocation of, the pigeon loft. The application was refused. The applicant appealed to the Land and Environment Court. An issue was whether the Court, if it were to approve the building application, had the power under s 39(2) to vary, modify or rescind the council’s resolution under s 289(e). The Court of Appeal held that it did have such power. Kirby P held at 264 that by s 39(2) it was intended that the Land and Environment Court:

35 Kirby P powerfully identified and upheld the considerations of legal policy which favoured upholding an ample jurisdiction under s 39(2) as expounded in Kent, as follows (at 268):

Kogarah Municipal Council v Kent