Kosciusko Alpine Club Limited v National Parks and Wildlife Service

[1988] NSWLEC 166

Land and Environment Court

of New South Wales

CITATION:

Kosciusko Alpine Club Limited v National Parks and Wildlife Service & Anor [1988] NSWLEC 166

PARTIES:

APPLICANT
Kosciusko Alpine Club Limited

FIRST RESPONDENT
National Parks and Wildlife Service

SECOND RESPONDENT
Corroboree Lodge Pty Limited

FILE NUMBER(S):

40054 of 1988

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning And Assessment Act 1979
National Parks and Wildlife Act 1974
Local Government Act 1919

CASES CITED:

F. Hannan Pty Limited v. The Electricity Commission of New South Wales(1985);
Guthega Development Pty Limited v. Minister (1986);
Cripps C.J. in Ross v. the State Rail Authority (1987);
Shire of Warringah v. Sedevcic (1987);
ACR Trading Pty Limited and Anor v. Fat-Sel Pty Limited and Anor (1987)

DATES OF HEARING:

DATE OF JUDGMENT:

03/21/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The second respondent leases Lot 198, DP44461, the Parish of Guthega, County of Wallace, located in Perisher Valley within the Kosciusko National Park. The Minister for Planning and Environment as the Minister responsible for the National Parks & Wildlife Service has entered into a supplemental deed of lease to extend the area of the said leasehold.

Erected on the subject premises is a ski lodge and restaurant known as the "Corroboree Lodge", and in the course of construction there is a number of large buildings approved by the first respondent by what is referred to as a building approval on or about 24th February, 1988.

The applicant is leaseholder of adjoining land and has sought interlocutory relief in the nature of an injunction inter alia to restrain building works carried out pursuant to that approval.

The grounds for such orders are the invalidity of such approvals said to arise out of (a) denial of natural justice; (b) manifest unreasonableness and (c) breach of the relevant building code.

The first respondent is not a consent authority pursuant to Part IV of the Environmental Planning and Assessment Act ("the E.P.& A. Act"), and it is common ground that development consent to carry out the proposed works is not required under that Part. The first respondent, pursuant to the National Parks and Wildlife Act, 1974, has the care, control and management of the Park and controls the erection of buildings therein, and for that purpose adopts certain procedures leading up to the grant of a building approval. That procedure involves firstly the grant of what is called a development approval and subsequently the approval of a building application, which it requires by its building code to comply with the provisions of Ordinance 70 under the Local Government Act, 1919, as supplemented by that code.

The alleged denial of natural justice arises out of an alleged failure to give consideration to representation of the adjoining lessee to the grant of the said building approval. It appears clear on the evidence that at the time of the consideration of the development application notice was given thereof and the applicant, through its architect, was given the opportunity to make representations. The first respondent had given notice of the application pursuant to a consistently applied policy of informing adjoining owners of proposed development in the Park and the consideration of representations.

It appears equally clear, however, that the application which was considered, and about which representations were made in connection with the development approval, was not the same application that came before the consent authority for the purpose of the building approval. It appears that the development plan was rejected and a decision was taken by the first and second respondent, without notice to the adjoining lessee, to alter the location of the most significant structure. Further, because such building could not comply with requirements for the set back from boundaries, the second respondent obtained an alteration of the boundaries of the lease. This also was without notice to the adjoining lessee, notwithstanding that its access roadway was thereby included in the lease of the adjoining land.

I will not go into the circumstances of the giving of notice to the adjoining owner of the new lease or the building application, or the manner in which it was required to attend the premises and to make representations. I will content myself with saying that the course adopted by the first respondent makes it strongly arguable that there was not real compliance with an obligation to observe natural justice.

So far as the claim that there was a course of conduct which gave rise to the expectation that it would receive and consider neighbour representations, I find that because of the published attitude of the determining authority to the giving of notice to adjoining owners, and the course of conduct adopted by it, there is a strong argument that such a policy did exist and a real issue does appear to me to exist as to whether such opportunity was in fact given.

The evidence given with respect to alleged manifest unreasonableness is not very satisfactory. It appears clear that the second respondent when it made application for development consent engaged an architect, and a number of discussions was held with officers of the first respondent concerning the appropriate way to develop the subject property.

It appears equally clear, however, that the prime consideration of the second respondent, and therefore its architect, was to produce development which would achieve in the most commercially feasible manner the maximum number of beds which had been allocated by the first respondent to the subject property.

Whilst the proposed development might achieve the commercial objects of the lessee of Corroboree Lodge, there appears to me to be a strong argument that that may be irrelevant and not necessarily be environmentally acceptable, nor an appropriate form of development for the subject site. There appears to be a serious argument for resolution as to whether any consideration was given to whether the site is environmentally capable of even accommodating the fifty beds in self-contained apartments, and in the locations proposed in this application.

The first respondent, through its architect, has given evidence that what was approved was a "compromise" between the different locations for the building which was acceptable to the second respondent. There appears to me to be a serious question to be resolved as to not only whether such a requirement of the owner is relevant, but also whether it demonstrates a failure of the first respondent to give real consideration to relevant matters in the consideration of the application itself.

The third ground appears to be overcome by the change in the leasehold boundaries. An additional ground for the orders is whether or not there has been a compliance with the requirements of Part V of the E.P.& A. Act by the first respondent in the granting of the said approvals.

I make no apology for the fact that this ground was raised by myself, after an examination of the documents, because there appeared to me to be a likely serious breach of the duties of the first respondent imposed by public law; c.f. F. Hannan Pty Limited v. The Electricity Commission of New South Wales, 28th August 1985, C. of A., unreported.

The applicant, not surprisingly, adopted that ground and as I understand the submission of the first respondent, it is not denied by it that the provisions of Part V of the E.P& A. Act are relevant to the subject approval. The second respondent does not admit the relevance of Part V, but in any event says that there has been a prima facie compliance therewith.

There can be no question in my mind on the evidence that the approved buildings are an activity pursuant to Part V, and that there has not been an environmental impact statement prepared with respect that activity. However, an environmental impact statement is only required, pursuant to s.112 thereof if the approval relates to an activity which is likely to significantly affect the environment.

I accept the submission of the applicant, that because of the nature, scale, location and other features of this very considerable development there is a serious argument that it is likely to significantly affect the environment.

So far as s.111 is concerned, the obligation of the first respondent is independent from that in s.112; i.e. that it examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activities. I accept that the "fullest extent possible" means reasonably practicable, but in either case I am satisfied on the evidence that a strong case has been made out that there has not been a consideration under s.111. In fact, it appears to me arguable that the relevance of Part V of the E.P.& A. Act did not occur to those employed by the first respondent and charged with the responsibility of granting approvals that are the subject of this application.

I am therefore satisfied that there are serious questions to be determined on a final hearing, and I turn to the balance of convenience and the question of discretion. The first respondent, of course, has a public duty to discharge its functions and duties under the E.P.& A Act, and I am aware that it has already been party to litigation concerning its responsibilities under Part V of the Act with respect to the same locality; see Guthega Development Pty Limited v. Minister, 1986 7 N.S.W.L.R. 353.

The second respondent, on the other hand, has no duties under that Part, and should be able to assume reasonably that the first respondent in giving the approval has complied with the law in the discharge of its duties and functions.

I also note that there is no suggestion of any bad faith with respect to the actions of the second respondent, or of any attempt by it to have the matter dealt with by the first respondent in breach of the said Act. However, it knew or should have known that it was negotiating for a building approval on an extended lease which the adjoining lessee perceived as seriously injuring the enjoyment of its premises. I am also conscious of its limitation on the time available for the erection of the buildings, the unchallenged loss of earnings, and the abortive costs and additional costs it would incur if the orders sought are in fact made.

The applicant, being the adjoining lease holder will, if the building continues and is completed, suffer the loss of an important amenity in the enjoyment of its property. It should be entitled to expect that in the approval of any works on adjoining lands or the grant of any leases the first respondent would discharge its duty in accordance with the law.

The second respondent's hardships are economic. It is therefore significant, in my view, in assessing the balance of convenience and the exercise of my discretion, that the applicant gives an unqualified undertaking as to damages with respect to the final outcome of this matter if the orders sought are made. That undertaking has been given notwithstanding that at least one of the grounds for the application is based upon a breach of the public law; c.f. Cripps C.J. in Ross v. the State Rail Authority, C. of A., 9th December 1987, unreported.

The discretion of this Court is a wide one and the principles to be applied have been collected and explained in Council of the Shire of Warringah v. Sedevcic, 19th September 1987, C. of A., unreported, and ACR Trading Pty Limited and Anor v. Fat-Sel Pty Limited and Anor, 17th November 1987, C. of A., unreported.

In the exercise of my discretion I am conscious of the duties imposed on the first respondent under a public law for the orderly development and use of the environment, and the need for confidence of the community that it will comply therewith. I am satisfied on the balance of probabilities on the available evidence that there is a strong likelihood that there has been a breach of that public law. I am satisfied that there is a strong likelihood that the determining authority has not given consideration to the matter as required by s.111 of the Act, particularly with regard to the impact of the buildings on the relevant environment. I am satisfied that there is a strong likelihood that an environmental impact statement is required as a consequence of the development, it being such as likely to significantly affect the environment. For these reasons, and those earlier stated, I am satisfied that the applicant has made out a strong case for the intervention of the Court for the purpose of preserving the status

quo.

I am not prepared to accept the undertakings of the first respondent in the limited manner in which they have been given to the Court. I am not prepared to restrain the erection of only that part of the development which is most likely to affect the amenity of the applicant. If the first respondent has an obligation to examine and consider an environmental impact statement, it is thereby compelled to consider, inter alia, the requirements of the Director of the Department of Environment and Planning, if any, and the relevant matters prescribed by cl.56 and 57 of the Regulations. In my opinion, because of the nature and scale of the development, erection of any of the approved buildings is likely to prejudice and fetter the discharge of that duty.

I order that the first and second respondents be restrained forthwith from causing, permitting or suffering, by itself, its servants, agents or contractors the erection of any buildings on premises known as Lot 198, DP44461, Parish of Guthega, County of Wallace, located at Perisher Valley, until further order of this Court. Liberty to apply on two days' notice. Exhibits may be released. Costs will be reserved.