Hastings Point Progress Association Inc v Tweed Shire Council & Anor

[2010] HCATrans 12

[2010] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney     No S270 of 2009

B e t w e e n -

HASTINGS POINT PROGRESS ASSOCIATION INC

Applicant

and

TWEED SHIRE COUNCIL

First Respondent

AEKLIG PTY LTD

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2010, AT 10.39 AM

Copyright in the High Court of Australia

MR P.H. GREENWOOD, SC:   May it please the Court, I appear with MR A.M. PICKLES for the applicant.  (instructed by O’Reilly Sever & Co)

MR P.J. McEWEN, SC:   May it please your Honour, I appear with my learned friend, MR S.M. BERVELING for the second respondent.  (instructed by Stacks The Law Firm).

GUMMOW J:   There is a submitting appearance for the Tweed Council, which is the first respondent.  Yes, Mr Greenwood.

MR GREENWOOD:   Your Honours, there are two aspects to this application.  The first is the determination of whether inconsistency exists at all.  Planning law, like industrial law ‑ ‑ ‑

GUMMOW J:   This term “inconsistency”, is it some question of repeal, is it?

MR GREENWOOD:   Well, the question of prevailing, what prevails, and to that extent, yes.

GUMMOW J:   These are not two layers of lawmaking?

MR GREENWOOD:   Well, there are several different layers of lawmaking in terms of the Act, the policies and the control plans.

GUMMOW J:   No.  These are not two layers of lawmaking by different polities?

MR GREENWOOD:   No.  To that extent, one is not rendered invalid by the other.

GUMMOW J:   But somehow into this area there has been injected that decision of the Court of Appeal some years ago.

MR GREENWOOD:   In Coffs Harbour.

GUMMOW J:   Yes, questions of federal doctrine.

MR GREENWOOD:   And to the extent that that is treated as the leading case in the planning area, we submit it requires consideration by the Court.  One has a situation where Justice Basten has applied a certain approach and, we would submit, a principal and appropriate approach by looking at the relevant context and, in particular, the subject matter that is dealt with by the particular policies and the plans to see that there is no overlap between them. 

Can I illustrate it perhaps most easily in relation to the use of another policy, the contaminated soils policy.  Can I take your Honours to application book page 113, line 20.  At the moment, on one view, the decision of the Court of Appeal means that if there is a seniors living application, then that is all that needs to be looked at, the terms of the policy.  It would preclude consideration of other policies which might bear on the same land but which, if they could prevent the approval, then they would be set aside.  So that would mean, for example, with land that is contaminated that the provisions of the State policy relating to contamination of soils would not operate.  One could go ahead and approve the development without regard at all to the fact that there is contaminated soil, notwithstanding the policy that says that is a factor that must be considered and the consent authority must be satisfied that appropriate action has been taken. 

The question that was posed by Justice Basten, namely, was the legislative intention for the seniors policy that it cover the field with respect to relevant and irrelevant considerations regarding a particular development, in our submission, was the correct formulation and that was what was criticised by Justice McColl in paragraph 2 of her judgment.  As a result, Justice Basten looked at the context of the provisions, paragraph 55, the other parts of the policy which bore on that question, paragraph 57, and the very subject matter of the policy, what it was designed to do, to consider whether there was the intent to exclude other or local considerations to see whether it was an exclusive code or not.  He identified, in our submission correctly, that the role of the policy was to encourage seniors living not to override all other planning controls which might bear on the same development.

GUMMOW J:   Now, Mr Greenwood, two procedural questions arise.  The first one is, what is the significance of this continued litigious activity in the Court of Appeal?

MR GREENWOOD:   We have not heard anything about the costs application yet, your Honour, and we do not expect it to bear on the appeal. 

GUMMOW J:   So you are seeking leave to appeal from what orders?

MR GREENWOOD:   The dismissal of the appeal which would ‑ ‑ ‑

GUMMOW J:   But where do we see the orders you are seeking leave to appeal from?

MR GREENWOOD:   The order of the court was that the appeal be dismissed, page 101, your Honour.  I am not sure I am following your Honour.

GUMMOW J:   Appeal dismissed.

MR GREENWOOD:   Yes.

GUMMOW J:   Are there any outstanding questions?  Did that deal with costs?  We do not normally take matters in here unless they are finished below.  Now, is this finished?

MR GREENWOOD:   Well, it is not in terms of the question of costs.  The question of costs is being re‑agitated, submissions have been made to the Court of Appeal and delivered their judgment in it.

GUMMOW J:   When were the submissions made?

MR GREENWOOD:   Before and just after Christmas.

GUMMOW J:   Do you say anything about this, Mr McEwen?

MR McEWEN:   No, your Honour.

GUMMOW J:   Just pardon me a minute.  Yes, proceed.

MR GREENWOOD:   Could I talk about Justice Basten’s reasoning.  Could I just take your Honours to ‑ ‑ ‑

GUMMOW J:   Sorry, the second question I meant to agitate with you, what is the practical consequence for your clients?  What is the state of this building?

MR GREENWOOD:   We will be seeking an injunction to restrain occupancy from third parties if your Honours do grant special leave.

GUMMOW J:   But is the building finished?

MR GREENWOOD:   It is nearing completion.  Our understanding was that two of the buildings are nearing completion.  My friend says they are finished.  There are other buildings within the development that have ‑ ‑ ‑

MR McEWEN:   Your Honour, stage one is finished.

GUMMOW J:   Go on.

MR GREENWOOD:   So in terms of that, we will be seeking to restrain third parties moving into the premises through an injunction to restrain either an occupation certificate being obtained or settlement of contract with third parties.

GUMMOW J:   This will be a final injunction, will it?

MR GREENWOOD:   On the final hearing, yes.  We would be seeking from your Honours today a special leave granting.  Can I take your Honours to application book, page 95 where your Honours will see that Justice Young agrees with Justice Basten’s analysis as to inconsistency in paragraph 76 of her judgment, but in terms of examining inconsistency, he does not look at the question of the subject matter of the different policy and plan, rather, in paragraph 94, page 99 of the application book, he approaches the matter as one of power only, the word “only” being the stumbling block as he sees it; the word “only” being the inconsistency he identifies. 

Justice McColl then adopts Justice Young’s reasoning and if your Honours go to application book page 73, paragraph 8 is the relevant paragraph.  Again, it is said to be a question of power.  In terms of then understanding the reasoning of Justice McColl as to why the two provisions cannot operate concurrently – her word taken from the Coffs Harbour decision it seems – there is no explanation as to why they cannot operate except as a matter of power.  That leads me to the second aspect we say arises on this application and that is if there is inconsistency, what is the extent of it and what flows from that? 

In our respectful submission, the majority of the Court of Appeal really did not address that aspect.  They find that there is inconsistency to the extent of the word “only” it seems, and then the question – and this is a very practical problem – what then must a council do when considering such an application?  The trial judge found that the Council should not consider at all considerations such as cumulative impact.  So, applying that approach, it would not matter at all whether the land was contaminated at all.  One would not look to that issue because it might lead to a refusal of the application. 

Justice Young does not address it directly but could I take your Honours to Justice McColl’s paragraph 9 in application book page 73.  That is the paragraph of her Honour’s judgment that seems to assert that cumulative impact should be addressed to provide for a discretion in the consent authority as to whether or not to approve the application.  In other words, the SEPP would prevail only to the extent that one would still need to consider that aspect and then the consent authority decide whether or not

to grant approval.  If that is the way that paragraph should be understood, then the appeal should not have been dismissed. 

Your Honours will see on application book page 62 the terms of the notice of appeal which provided plainly for a challenge to her Honour’s findings at first instance; that such matters need not be taken into account, paragraph 1; cannot be used as a basis to refuse, paragraph 2; no obligation to access, paragraph 3; and 5, did not need to consider whether it was considered. 

Your Honours, the importance, we say, of these two questions arise at various levels.  There is the immediate importance for councils determining applications when they are seeking to administer the law.  There is the impact on the developers making applications and the communities of people where these developments are proposed.  Now, we say in our submissions that we do not know how many of these applications are made; comments made at application book 125.  However, we have ascertained from the Department of Planning that it is about 300 a year.  It was 315 in 2006-2007 and 285 in 2007-2008. 

Your Honours have seen from the reference to the contaminated soils, and the submissions also make reference to koala habitats and traffic considerations, that there are health and safety issues as well as economic and conservation considerations.  At a more removed level there is the basic question about determining inconsistency.  In our submission, that has application across the board, not just in planning law and industrial law and areas where inconsistency is envisaged by the very structure of the legislation but more generally.  If the Court pleases.

GUMMOW J:   Yes, Mr McEwen.

MR McEWEN:   Your Honours, in our submission, this case is peculiar to its facts and arises from a failure to properly distinguish between the objection generally ‑ ‑ ‑

GUMMOW J:   Just take us to the relevant text that appears at 118 and 119?

MR McEWEN:   Sorry, your Honour?

GUMMOW J:   The relevant text, which is what it all comes down to, of the two planning instruments.

MR McEWEN:   Yes, your Honour.

GUMMOW J:   You have set them out, have you not, 118 and 119?

MR McEWEN:   We do, your Honours, and the words in contention at 118 at about line 27, clause 8 of the LEP.

GUMMOW J:   “Only if”.

MR McEWEN:   “Only if it is satisfied relevantly of (c) of cumulative impact.  Then you have SEPP Seniors Living, clause 5 following:

If this Policy is inconsistent with any other environmental planning instrument . . . prevails to the extent of the inconsistency.

Importantly, though, your Honours, over the page we have reproduced clauses 17 and 18. 

17.This Chapter allows the following development despite the provisions of any other environmental planning instrument if –

. . . 

18.Development allowed by this Chapter may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent.

Now, her Honour at first instance honed in upon the primacy of the SEPP Seniors Living and contrary to one of the observations by Justice Basten, we at no stage put the proposition his Honour referred to at page 84 at line 32 or 33, paragraph 40.  Contributes to us a submission that:

any development proposal to which the Policy applied and which was in accordance with its terms must be given consent by the relevant consent authority –

We have maintained both at trial and on appeal that there was no such obligation of that nature, still remained a discretion, and what is missing out of the application by my learned friend, Mr Greenwood, is reference to the simple fact that overarching this LEP and the State policy is section 79C of the EP&A Act which sets out the matters necessary for evaluation of any development application.  It has a superior position in the legislative hierarchy. 

Just to answer my learned friends as to contaminated lands and the other question he raised of what is to flow from the extent of the inconsistency, 79C, which has not been referred to in these judgments because it did not form the fulcrum of the challenge, that being limited to the question of inconsistency, 79C provides that amongst the matters for general consideration and being left to the discretion of the consent authority, there are included an assessment of the likely impacts of the development generally in subsection (b), and the suitability of the site for development. 

If one was looking at the likely impacts of the development and the suitability of the site generally, one then picks up whatever other legislative provisions or planning instrument provisions or controls there are which are themselves not inconsistent with SEPP Seniors Living. 

HAYNE J:   Does it follow from that argument that you say the relevant planning authority should consider questions of unacceptable cumulative impact?

MR McEWEN:   If seen to be relevant, your Honour.  If seen to be relevant.

HAYNE J:   I thought you were saying that section 79 of the Act required consideration of questions of impact, is that right?

MR McEWEN:   Yes, your Honour.

HAYNE J:   What are we to do in the face of the primary judge’s finding or absence of finding at application book 28, paragraph 65?  Her Honour says that she does not need to consider whether clause 8 of the TLEP was considered, presumably refraining from finding whether there was consideration of cumulative impact.

MR McEWEN:   Because she had come to the decision, your Honour, that there was inconsistency between clause 8 of the LEP ‑ ‑ ‑

HAYNE J:   I understand that, but you say cumulative impact was always relevant, is that right?

MR McEWEN:   With respect, no, your Honour.  I say it is a matter for the consent authority as the council officer who gave evidence told us it had been a factor in her consideration of the actual application, albeit not referred to in the report she prepared for Council.  But it is a matter, with respect, your Honour, for the discretion of the consent authority as to what they isolate as being of relevance.  But it did not go, your Honour, to the fundamental question the trial judge had to deal with, with respect.  Indeed, your Honour referred me to paragraph 65 on application book 28.  On proceeding page 27, paragraph 62, her Honour referred to the question of having to determine whether clause 8 is satisfied.  She goes on to say, and I will read this briefly, paragraph 62:

If assessed as not satisfied cl 8 cannot prevent the approval under the TLEP of the development under SEPPSL.  I do not consider there can be such an obligation –

et cetera.  Your Honours, we answer my learned friend’s question, what are councils to do, by saying there is already a regime in place and they need no further guidance and that is because 79C, the overarching provision, tells them what they are to do, that is, if there are relevant controls touching upon the assessment of an application, they are to look at those controls where they trigger any of the points of evaluation that flow from the application. 

It is true that Justice Basten has taken a different approach.  The majority in the Court of Appeal, your Honours, was consistent in its application of Justice Kirby’s analysis in the Coffs Harbour Case in 1994 as to the use of the word “inconsistent” and ever since that decision, it has been followed in a variety of cases which we footnote in our submissions, that is, the eschewing of reference to cases under section 109 of the Constitution to assist in the determination of what is or is not inconsistent. With respect, your Honours, they are our submissions.

HAYNE J:   Before you sit down, what was the provision of the Act to which you referred?

MR McEWEN:   Section 79C, your Honour.

GUMMOW J:   Yes.  Where do we find that set out?

MR McEWEN:   It is not, your Honour, but I have copies for your Honours.

GUMMOW J:   That is what I thought.

MR GREENWOOD:   Application book 75.

GUMMOW J:   Page 75, is it?  Yes, thank you.

MR McEWEN:   I had referred your Honour to subparagraphs (1)(b) and (1)(c).  I should mention just one other aspect of this matter, your Honour.  Your Honours might have seen in her Honour’s judgment at first instance reference to section 25B of the EP&A Act.  That is the section that enables a court, if it finds there has been a lacuna in the assessment process, but for which consent would be refused, to defer passing final judgment on the matter and allow the applicant an opportunity to fix it up.  If this matter is granted special leave and it is successful, the effect of it will be to send the

matter back to her Honour for exercise of her Honour’s discretion of that section.

GUMMOW J:   Yes, Mr Greenwood.

MR GREENWOOD:   We obviously rely very heavily on 79C, your Honour, because it gives primacy to reach of the environmental planning instruments in 79C(1)(a).  The consent authority is required to look at those relevant environmental planning instruments, one of which is, of course, the local plan.  The suggestion or the construction that was adopted by the trial judge and ‑ ‑ ‑

GUMMOW J:   The question is, what does the phrase “that apply” in 79C(1)(a) mean, any instrument that applies?  The process of application involves this reconciliation or lack of reconciliation.

MR GREENWOOD:   That is right.  But the operation of this SEPP in its particular operation, in our submission – this policy I should say – is to provide where there is zoning requirements, zoning prohibitions, to override those kinds of things, not to try and deal with every other aspect.  I seem to be saying the same thing in many ways, that the Council must look at cumulative impact and yet the very effect of this judgment of dismissing the appeal is to confirm the trial judge’s finding that cumulative impact need not be considered by the Council at all because consideration of it could lead to a refusal of an application.  In that event, anything that could lead to a refusal of an application, may not be considered.

HAYNE J:   Just before you sit down, is the legislation in issue in this litigation relevantly in unaltered form today?

MR GREENWOOD:   Yes, it is.

HAYNE J:   Because there have been, have there not, quite large amendments made to legislation?

MR GREENWOOD:   There have been changes to the policy but the relevant parts of the policy remain operational.  If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 11.05 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.07 AM:

GUMMOW J:   This case turned upon the proper construction of two planning instruments.  We are not satisfied there are sufficient prospects of success in overturning the order made by the New South Wales Court of Appeal on 11 September 2009 dismissing the appeal from the Land and Environment Court of New South Wales to warrant a grant of special leave.  In doing so, we are not to be taken as expressing any view as to the more general questions of law the applicant seeks to raise.  Special leave is refused with costs.

AT 11.08 AM THE MATTER WAS CONCLUDED