Johnson v Lake Macquarie City Council

[1999] NSWLEC 148

Land and Environment Court

of New South Wales

CITATION:

Johnson v Lake Macquarie City Council and Anor [1999] NSWLEC 148

PARTIES

APPLICANT:
Johnson

RESPONDENTS:
Lake Macquarie City Council and Anor

NUMBER:

40173 of 1995

CORAM:

Talbot J

KEY ISSUES:

Development :- consent protected by notice published pursuant to privative clause
Development:- EP&A Act s 104A - challenge precluded

LEGISLATION CITED:

Environmental Planning and Assessment Act s 104A

DATES OF HEARING:

05/31/1999; 06/01/1999

DATE OF JUDGMENT DELIVERY:

06/21/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P J Kelso (31/05/99)
In Person (31/05/99, 01/06/99)

SOLICITORS:
Taylor Kelso (31/05/99)
N/A (31/05/99, 01/06/99)

FIRST RESPONDENT:
Mr W R Davison SC

SOLICITORS:
Peter Rees

SECOND RESPONDENT:
Mr P A Carroll (Solicitor)

SOLICITORS:
Carroll & O'Dea

JUDGMENT:
IN THE LAND AND Matter No. 40173 of 1995
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 21 June 1999

Ken Johnson
Applicant

v
Lake Macquarie City Council
First Respondent
Pulver Cooper & Blakeley Pty Ltd

Second Respondent

REASONS FOR JUDGMENT


1. This matter has been remitted to this Court by the Court of Appeal to determine issues raised by the amended defence entered by Lake Macquarie City Council.

2. At first instance, Justice Stein rejected an application by the first respondent to amend its defence to plead s 104A of the Environmental Planning and Assessment Act 1979 (the EP&A Act). On appeal the Court of Appeal (1998) 101 LGERA 76 granted leave to the first respondent to amend its defence to plead the matter proposed as follows:-

6. The deferred commencement consent cannot be questioned by reason of the provisions of section 104A Environmental Planning & Assessment Act 1979 as amended.
PARTICULARS
The first respondent resolved to grant a deferred commencement consent to the development on 28 ^th November, 1994 and the notice of determination issued on 5 ^th December, 1994. The granting of the development consent was publicly notified for the purposes of section 104A of the Act on 11 ^th January, 1995 in The Post, a local newspaper.


3. The facts and history of the matter are set out in the judgment of Stein J, delivered on 23 July 1996 and the subsequent reported judgment of the Court of Appeal.

4. The orders made by Stein J have been set aside, save for an order as to the invalidity of a notice dated 26 October 1994. Justice Stein held that the notice was published in breach of cl 59 of the Environmental Planning and Assessment Regulation 1994 for the reasons explained in his judgment. A further finding by Stein J that a deferred commencement condition was not complied with by the second respondent and that accordingly development consent would have lapsed was overturned by the Court of Appeal.

5. Mr Carroll, the solicitor for the second respondent, appeared to confirm that his client now submits to any order of the Court except as to costs.

6. Following refusal of an application for adjournment made by Mr Kelso solicitor representing the applicant, Mr Johnson personally conducted the case on his own behalf after Mr Kelso retired.

7. When he decided to remit the outstanding defence to this Court for determination Rolfe AJA, who delivered the judgment of the court, made the following observation at 93:-

In my respectful opinion, in all the circumstances of this case the learned trial judge’s discretion to refuse to grant the amendment miscarried, and his decision in this regard should be reversed. It was submitted by the council that this Court should decide whether the advertisement met the requirements of s 104A, rather than remitting the matter to the Land and Environment Court. I disagree. The matter will have to be fully pleaded in that court and evidence taken, insofar as it is sought to be led, and assessed. It is inappropriate for this Court to undertake that task. In saying that I appreciate that the prolongation of the litigation is to be regretted, but I do not see any alternative.


8. The only documentary evidence tendered before me is the Appeal Books and a copy of a local street directory used to identify the location of the subject land.

9. The applicant presented the Court with two lengthy statements drawn in the form of affidavits which comprised a mixture of assertions, submissions and evidence. These documents have been read by me and, insofar as the contents are relevant and probative, they have been taken into account.

10. In addition to the abovementioned statements in the form of affidavits, Mr Johnson read two affidavits without objection.

11. The only other evidence is an affidavit of Peter Noel Hodge, the Manager Development Assessment and Compliance employed by the first respondent, to which was annexed a copy of the notice published pursuant to s 104A of the EP&A Act which described the subject property as follows:-

DA 93/0948 Subdivision (47 Lots) - 15 Croudace Bay Road, Belmont

Chronology

12. The following events are relevant:-

28 November 1994	Development consent granted
11 January 1995	s 104A Notice published
5 May 1995	Deferred commencement condition complied with
28 June 1995	Further s 104A Notice published
17 September 1995	Class 4 Application filed

The issues

13. The applicant raised eight separate issues. The Court will deal with each of these issues in the same order as they were raised by Mr Johnson.

Issue No. 1 The respondent’s failure to comply with s 95 EP&A Act

14. The date of endorsement of consent notified in the Notice of Determination of Development Consent addressed to the second respondent in accordance with s 92 is 5 December 1994.

15. By letter dated 13 January 1995 the council advised the applicant that it had resolved to grant consent to the second respondent on 28 November 1994. The letter concluded:-

A copy of the Development Consent issued is available for your inspection during normal office hours at the Environmental Service Council at Council’s Administration Centre


16. A further notification, this time in the prescribed form, was sent to Mr Johnson on 5 June 1995 advising him that the council had given consent to DA No. 93/948 on 5 May 1995. The date appears to be a reference to the time the deferred commencement condition was complied with and when a further formal Notice of Determination was issued to the second respondent.

17. At the relevant times s 95 of the EP&A Act stated:

95 Notification of consent authority’s determination to objectors etc


A consent authority shall notify, in the prescribed form, time and manner:

(a) each person who made a submission under section 87 in respect of a development application, of its determination of that application, and

(b) each objector in respect of the application, of the rights under this Act of the applicant and each objector to appeal in respect of that determination.


18. Regulation 71 stipulated that the s 95 notice must be given on the same day as the s 92 notice is given to the applicant.

19. Mr Johnson’s complaint is that neither notice was sent at the time required by reg 71 and further that the letter dated 13 January 1995 was not in the prescribed form and did not provide a copy of the conditions of consent as required.

20. Firstly, it must be said that only one development consent was ever granted. The further notice of determination has the effect of satisfying s 92(3)(b) by giving notice to the applicant of the date from which the consent operates. Regulation 68, which prescribes the form of a s 92 notice, does not discriminate between a notice sent pursuant to s 92(1) and s 92(3)(b). The only consent granted was the subject of the Notice of Determination issued in December 1994. Compliance with a deferred commencement condition does not have the effect of granting a further consent. It merely dictates the date from which the consent operates.

21. The purported notice sent to Mr Johnson in June 1995 is irrelevant and has no legal effect in regard to the development consent granted. The same conclusion must follow for the same reasons in respect of the form of s 104A Notice which the council published on 28 June 1995.

22. The omission to include the conditions with the letter dated 13 January 1995 is to be considered in the light of the invitation to inspect the consent. The intent of the regulation is to ensure that objectors are made aware of the manner in which an application has been dealt with. Although the failure to provide a copy of the conditions does not strictly comply with the prescribed form, nevertheless the object of the statutory requirement is substantially satisfied by making them available for inspection at the council offices.

23. Mr Johnson conceded that he was able to inspect the document when he responded to the publication of the s 104A Notice. Even though he may not have been able to persuade the council to provide him with a copy of the conditions, the Court is nevertheless satisfied the obligation created by s 95 was substantially complied with.

Issue No. 2 The description of the land

24. The applicant refers to various notices issued by the council from time to time, including the s 104A Notice and s 95 letter, which variously describe the land as 15 Croudace Bay Road, Belmont or Lot 103 DP 718853.

25. His argument is that a description by reference to street numbers or a lot in a deposited plan is either non-informative or misleading to any person other than a person who has an intimate knowledge of the site and its particulars.

26. Furthermore, a failure to make reference to Spinnaker Bay Road, from which he asserts access is to be gained to the subject land, invalidates the whole notification process ( Scurr and Ors v Brisbane City Council and Anor (1973) 133 CLR 242).

27. A local street directory was tendered and reference to the maps demonstrated that Croudace Bay Road is a long road and that at various points, not including the area where it is adjacent to the subject land, is described by another name.

28. The applicant relies on reg 81, which provides that a s 104A Notice is publicly notified if the notice, inter alia, describes the land, in order to support a submission that the published notice is not a proper notice.

29. A proper reading of the development application and the development consent shows that the only land dealt with by the development consent is Lot 103. The land over which Mr Johnson contends access will be provided is not the subject of the application or the consent.

30. The fact that a further development consent may be required in order to gain access to Spinnaker Bay Road does not invalidate the consent granted in respect of the subject land ( Grace Bros Pty Ltd v Willoughby Municipal Council and Ors (1980) 44 LGRA 400 and King v Great Lakes Shire Council and Anor (1986) 58 LGRA 366).

31. There is no demonstrated error in the description of the land. It may be difficult to locate because of its undeveloped nature or geographic location, but that does not mean a description by reference to a street number or title lot number cannot be an adequate description. The land in the development application was described, notified and considered as 15 Croudace Bay Road. It is difficult to understand what better description might have been applied in the circumstances.

Issue No. 3 Challenges to the validity of the council’s actions
32. The applicant, in the course of a long discourse to the Court, identified a plethora of matters which gave rise to his discontent with the council’s determination of the development application and subsequently.


i. A number of the conditions of consent were invalid. For example, they demonstrated lack of certainty or did not refer to a source of power as required by reg 10.

ii. A failure to consider the requirements of SEPP 19.

iii. Manifest unreasonableness of the decision.

iv. Attempts by council to prevent the applicant gaining access to the details of the development consent by denying his request for a copy of the consent.

v. The obstructive actions by council after 14 January 1995 which effectively deprived the applicant of an opportunity to commence proceedings alleging breach of the EP&A Act pursuant to s 123.

vi. Predetermination of the application.

vii. A failure to consider relevant matters (ie a traffic study).


33. The issues raised by the applicant relate to procedural or legal errors, some of which are alleged to have occurred after the consent was granted. In most cases they are not substantiated by any evidence. Where there is evidence, the alleged errors, such as incompetence of council officers, are irrelevant to any issue before the Court or they are not proved on the balance of probabilities. In many cases the evidence is contrary to the applicant’s submission.

34. None of the matters raised go to the issue of jurisdiction or power.

35. It is not possible to discern any jurisdictional error on the face of the development consent itself.

Issue No. 4 Bad faith

36. The gravamen of the applicant’s claim that the council acted in bad faith is that, essentially, the council officers merely went through the motions of considering the issues raised in the reports to council, having already predetermined the outcome. It is suggested that a number of matters were deferred for further investigation and not revisited or dealt with before reports called for were furnished. Furthermore, no reference was made to SEPP 19 or s 90 in the reports.

37. Although all or some of these matters could or do substantiate error, they do not justify a finding of bad faith. There is no evidence of deliberate mala fides or fraud.

The effect of s 104A

38. The section is not a limitation provision (per Rolfe AJA at 93 in the Court of Appeal).

39. Stein JA summed up the test to be applied in accordance with the decision of the High Court in R v Hickman; Ex parte Fox (1945) 70 CLR 598 in Londish v Knox Grammar School and Ors (1997) 97 LGERA 1 at 6 as follows:-

The test set out by Dixon J in Hickman is that a preclusive clause prevents legal challenge to a decision which:
_ does not on its face exceed the authority conferred by the legislation;
_ is a bona fide attempt to exercise the powers conferred; and
_ relates to the subject matter of the legislation.


40. All of the allegations made by Mr Johnson fall within one or other of the categories mentioned by Stein JA in Londish at 6 where his Honour identifies non-reviewable errors arising from the Hickman test discussed in Darling Casino Ltd v NSW Casino Control Authority (1997) 71 ALJR 540 and Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd (1995) 183 CLR 168.

41. Applying the three aspects of the Hickman test to the present case, the Court finds that:


i. The council’s decision to grant development consent was, on its face, within its authority.

ii. No mala fides on the part of the council has been proved in the sense that the determination of the development consent has not been shown to be a decision which is not a bona fide attempt to exercise its powers.

iii. The decision to grant consent clearly relates to the subject matter of the EP&A Act.


42. It follows therefore, and the Court finds, that the notice published pursuant to s 104A of the EP&A Act on 11 January 1995 protects the determination of the development application made by council on 28 November 1994 from any challenge raised by the applicant to the validity of the consent in these proceedings which were not commenced until 17 September 1995.

43. The application is dismissed. The question of costs is reserved.

44. The exhibits may be returned.