Karl Heinz Singman v Bruce Kerr Pty Limited

[1988] NSWLEC 167

Land and Environment Court

of New South Wales

CITATION:

Karl Heinz Singman v. Bruce Kerr Pty Limited [1988] NSWLEC 167

PARTIES:

APPLICANT
Karl Heinz Singman

FIRST RESPONDENT
Bruce Kerr Pty Limited

SECOND RESPONDENT
Gosford City Council

FILE NUMBER(S):

40234 of 1987

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Muller v. Dalgety & Co. Ltd (1909);
Hunter Douglas Australia Pty Limited v. Perma Blinds (1968) ;
Bailey v. Marinoff, (1971)

DATES OF HEARING:

DATE OF JUDGMENT:

03/29/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The applicant is a resident of Umina in the State of New South Wales and a member of the Umina Nature Defence Organisation, which is an unincorporated body. In these proceedings orders are sought with respect to the lawfulness of works of filling for the subdivision of land pursuant to an approval granted to the first respondent by the second respondent, and as varied by this Court on appeal.

The second respondent at its meeting of 12thJune, 1984 approved the subdivision of land being Lots 2, 8, 9 and 10 off Neera Road and Cowper Road, Umina, subject to a large number of conditions. The subject land was situate within a residential 2(A3) zone pursuant to the Gosford Planning Scheme Ordinance. The subdivision provided for the creation of 255 residential lots in seven stages, and the dedication of reserves for recreation and for drainage. Works in connection with the subdivision involved filling, drainage and the clearing, realignment, protecting and widening of Ettymalong Creek.

An appeal against certain conditions of the said consent was lodged by the first respondent to this Court pursuant to s.97 of the Environmental Planning and Assessment Act 1979 (the "E.P.&A. Act") and, in proceeding No.10291 of 1985, was determined on 28thAugust, 1985. The appeal was determined by an Assessor because the parties had consented to him disposing of the proceedings pursuant to s.34(3)(b)(ii) of the E.P.&A. Act. The orders of the Court were:

|CF2.|PSI

"THE COURT ORDERS THAT:

1. The development consent dated 15 June, 1985 be confirmed with the following amendments to the conditions therein:

1) Omit the wording of condition 2(b)(ii) and insert -

"the construction of all open drainage channels within the subdivision in accordance with good engineering design and practice permitting adequate access for maintenance."

2) Omit the wording of condition 2(c) and insert -

"construction of a retaining wall if required by good engineering design and practice within the extension of NeeraRoad (split level) within the subject land, together with such retaining walls or other works as may consequently be necessary outside the subject land fronting allotments in Neera Road."

3) Omit the wording of condition 6(d) and insert -

"Those areas of the site which have presently been filled and are underlain by relatively small thickness of the peaty material be developed in accordance with the requirements of an experienced geotechnical engineer subject to the approval of the City Engineer."

4) Omit the words "and sewer" in condition8.

5) Insert after condition8 the following conditions 8A, 8B and 8C -

"8A. The applicant to reticulate sewerage to each residential lot within the proposed subdivision and to connect at the applicant's expense and to the approval of the Public Works' Department the internal sewerage mains to the Council's main at Cowper Road.

8B. The applicant to meet any additoinal cost associated with altering the proposed sewerage main in CowperRoad to allow proper reticulation of sewerage, subject to the approval of the design by the Department of Public Works.

8C. In the execution of engineering works associated with the construction of the stormwater drainage channel, the applicant's responsibility to alter or relocate any sewerage lines shall be limited to the alteration or relocation of those lines which are in existence at the time when the stormwater works are being executed."

6) Condition 12 shall be omitted and the following conditions 12 and 12A inserted -

"12. Provision of a $25,000 bank guarantee for the reasonable cost of the repair of any damage to CowperRoad leading to the subdivision caused by vehicles associated with the carrying out of the subdivision.

12A. All vehicles associated with the carrying out of the subdivision are to gain access to the land via CowperRoad."

7) Omit condition 21 and insert -

"21. Extension of Myola Road to be 20metres wide adjoining proposed lots517, 722 and 723."

2. There be no order as to costs."

|CF1.|PSO

The approved works include the back filling of a low lying swamp (Ettymalong Swamp) and an application pursuant to PartXII of the Local Government Act later became the subject of an appeal to this Court, which was determined as matter No.20451 of 1987 on 2ndMarch, 1988. I have been informed that works, particularly filling, approved by such determination include all works alleged to be unauthorised in these proceedings.

It appears that the subject site has been subject to random filling over a long period both before and after the said 1985 approval. The area is described as a swamp because it would be a water retention area after abnormal rainfall. It is now claimed that the subdivision works have caused or exacerbated the flooding of adjoining land.

The respondents submit that the subdivision and works of drainage and filling are authorised by the development approval granted by order of the Court on 28thAugust, 1985, and subdivision approval granted by order of the Court on 2ndMarch, 1988.

An objection on the ground of relevance to any justiciable issue has been taken to the admissibility of evidence sought to be tendered by the applicant, concerned with the nature and scope of the consideration of relevant matters pursuant to s.90 of the E.P.&A. Act by the Council as consent authority in 1984, and also the said 1985 decision of the Assessor of this Court when disposing of the appeal against conditions of such consent. The applicant agreed that such objection should be dealt with forthwith, because if upheld it was not proposed to continue further with other matters raised in these proceedings.

The applicant submits that:

|CF2.|PSI

i) The decision of an Assessor pursuant to s.34(3)(b)(ii) of the Land and Environment Court Act (the "L. & E. Court Act") is administrative and not judicial.

ii) In Class4 proceedings a Judge has inherent jurisdiction to reopen and review such Assessor's decision.

iii) In such review the adequacy of material considered by the Assessor on appeal, including the correctness of decisions of the consent authority which is the basis of the appeal, can be examined by the Judge.

|CF1.|PSO

The respondents submit that:

|CF2.|PSI

i) All of the subject works are authorised by a consent granted by this Court.

ii) The decision of the Assessor is a decision of this Court and which is final and conclusive.

iii) There is no jurisdiction in this Court to reopen or review a decision of this Court, except as provided by Division2 of PartV of the L. & E. Court Act.

|CF1.|PSO

It is not submitted that the learned Assessor failed to observe any procedural requirement imposed by the provisions of the L. & E. Court Act in the discharge of his function under s.34. It is also common ground that the Assessor was empowered to dispose of the proceedings by making the type of orders in fact made confirming the grant of development consent, but with amendment to conditions thereof.

As I understand the submissions of the applicant, it is conceded that this Court has no jurisdiction to review again the decision of the second respondent as consent authority to a development application which has been the subject of a determination of this Court of an appeal pursuant to s.97 of the E.P.&A. Act. This concession is correctly made because such decision, whether or not reasonably open to the second respondent, is subsumed by the determination of this Court on appeal. However, the applicant indirectly challenges such Council decision in the attempt to reopen the appeal proceedings against such decision.

Whilst the applicant acknowledges that a decision of this Court is final and conclusive, it submits that the subject order of an Assessor is not, because it is the exercise merely of an administrative function and not a decision of the Court. This submission is said to be justified by -

1. The nature of the exercise of the function as part of or after a preliminary conference; and

2. That the Assessor's decision is merely "deemed" to be a decision of this Court.

An examination of the legislative framework for the disposal of business in the Land and Environment Court in my opinion assists in determining whether a decision of an Assessor disposing of an appeal pursuant to s.34(3)(b)(ii) is a decision of this Court.

The Land and Environment Court is constituted by Statute as a superior court of record and all proceedings shall, subject to the L. & E. Court Act, be heard and disposed of before a Judge. However, pursuant to s.12, the Governor may appoint persons having in the opinion of the Minister specified, special or suitable knowledge or experience to be conciliation and technical Assessors of the Court.

For the more convenient dispatch of the business of this Court it is divided into five divisions (s.26), i.e.:

|CF2.|PSI

"a) The Environmental Planning and Protection Appeals Division;

b) The Local Government and Miscellaneous Appeals Division;

c) The Land Tenure, Valuation, Rating and Compensation Division;

d) The Environmental Planning and Protection Civil Enforcement Division; and

e) The Environmental Planning and Protection Summary Enforcement Division."

|CF1.|PSO

The jurisdiction of the Court is divided into five classes and in Classes1, 2 and 3 such jurisdiction shall, in accordance with the L. & E. Court Act, be exercised by a Judge or (emphasis added) one or more Assessors (s.33).

Proceedings No.10291 of 1985 were apparently pending in Class1 of the Court's jurisdiction, and a preliminary conference presided over by a single Assessor was arranged between the parties pursuant to s.34. The Court record notes that the parties consented to the Assessor disposing of the proceedings pursuant to s.34(3)(b)(ii). S.34(3) provides:

|CF2.|PSI

"Where -

a) at or after a conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions - the assessor shall dispose of the proceedings in accordance with the decision; or

b) no such agreement is reached -

i) unless the parties consent under subparagraph (ii) - the assessor shall make a written report to the Court setting out that fact and also setting out his views as to the issues in dispute between the parties to the proceedings; or

ii) if the parties consent - the assessor may dispose of the proceedings, whether with or without further hearing."

|CF1.|PSO

Subject to the Act and the Rules, such Assessor disposing of or hearing and disposing of such proceedings had and may exercise the functions of the Court (s.34[4]), and the decision shall be deemed to be the decision of the Court (s.34[5]). I note that such powers of the Assessor exercising a function under s.34, and the effect of any order are identical to those conferred for the purpose of hearing and disposing of proceedings pursuant to a direction of the Chief Judge (s.36). In my opinion the power of the Assessor vested by s.34(3)(b)(ii) to "dispose of the proceedings" includes not only the making of any decision the Court could have made in the proper exercise of its function with respect to the appeal, but additionally all of the functions and discretions which the second respondent had in respect of the matter the subject of the appeal (s.39[2]). Except as provided, a decision of the Court shall be final and conclusive (s.56).

The applicant submits that, because the subject decision of the Assessor is "deemed" to be a decision of the Court by s.34(5), it was thereby a statutory fiction extending the meaning of the term to a subject matter which it does not properly designate. Reliance is placed on the warning of GriffithJ. in Muller v. Dalgety & Co. Ltd (1909) 9 C.L.R. 693 at 693, that |CF2.|PS1."when used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced".|CF1.|PSO

That passage has often been quoted in Australian Courts and is a recognition that the word can be used to extend the denotation of the defined term to things it would not in ordinary parlance denote.

However, the High Court has rejected any presumption, still less any rule, that whenever the word "deemed" appears in a statute it demonstates a "fiction" or some abnormality of terminology. The word when used in a statute may state the effect or meaning which some matter or thing has, and |CF2.|PS1."the way in which it is to be adjudged";|CF1.|PSO c.f. Hunter Douglas Australia Pty Limited v. Perma Blinds, 1968 122 C.L.R. 49 at 65-67.

In my opinion the purpose of the subject deeming provision is to put beyond doubt the effect of the Assessor's order as a decision of the Court which shall be final and conclusive. I reject the submissions of the applicant.

The scope of the inherent power of the Supreme Court of New South Wales to reopen its own proceedings is considered in Bailey v. Marinoff, (1971) 125 C.L.R. 529, and Gamser v. Nominal Defendant, 1976 1 N.S.W.L.R. 520, and on appeal to the High Court, 1977 136 C.L.R. 145. These judgments contain a proposition in general terms that when an appeal has been finally disposed of by that Court it has no inherent power to reopen it. In the Land and Environment Court, BignoldJ. in Robinson v. Shoalhaven City Council and Ors, 55 L.G.R.A. 135, dealt with a motion to set aside a consent order for the payment of costs. I respectfully agree that the said judgments confirm that an examination of the L. & E. Court Act and the Rules demonstrates that this Court similarly lacks the power (statutory or inherent) to set aside a judgment which regularly concluded the proceedings.

I have some difficulty in perceiving the utility in this statutory context of attempting to label the exercise of the subject function as "administrative" in contrast to "judicial". The nature and consequences of a decision in exercise of such function in my opinion is clearly expressed by the provisions of the L. & E. Court Act. However, in deference to the submissions of the applicant, I will state my findings.

An administrative function might be contrasted with a judicial function of a Court because it is the exercise of a power which, without being exhaustive, is merely advisory, deliberative, investigative, corroborative or which does not have legal effect until confirmed by another body and involves only the making of a preliminary decision. DeSmith in "Judicial Review of Administrative Actions" (fourth edition) p.80, suggests that the first test to identify a judicial function is the conclusive nature of a decision of a Court which is binding, has the force of law and, if exercised within jurisdiction, cannot be impeached in collateral proceedings.

I am more than satisfied that the subject function exercised by the Assessor satisfies the test of conclusiveness. This characteristic, considered with the manner in which the Court is required by the L.&E.Court Act to proceed with and determine disputed questions of law and fact leaves me in no doubt that it is a judicial function of this Court which is final and conclusive.

In my opinion except as provided by Division2 of PartV, the decision of the Assessor in proceedings No.10291 of 1985 is a decision of the Court in relation to the subject Class1 proceedings, and is final and conclusive. Such decision disposed of the proceedings and, apart from any specific and relevant statutory provision, is at an end in this Court and beyond recall.

The material considered by the Assessor pursuant to the discharge of his function under s.34(3)(b)(ii) of the L.&E.Court Act is therefore rejected as being not relevant to any justiciable matter.

The applicant does not propose to proceed with any other matter raised by the Amended Points of Claim, and I therefore make the following orders:

1. Application dismissed.

2. Exhibits may be released.

3. The applicant to pay the costs of the respondents.