Lahoud v Willoughby City Council

[2023] NSWLEC 117

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lahoud v Willoughby City Council [2023] NSWLEC 117

Hearing dates:

1, 2, 3 and 4 November 2022; written submissions on 23 December 2022 and final written submissions by 23 June 2023

Date of orders:

02 November 2023

Decision date:

02 November 2023

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See orders at [327]

Catchwords:

JUDICIAL REVIEW ‑ challenge to development consent for adaptive reuse of an existing commercial building, adding an additional level ‑ conversion to mixed‑use development with shop top housing ‑ development consent challenged on six separate grounds ‑ whether challenge to development consent commenced within statutory time limit ‑ challenge commenced within time limit ‑ if not within in time limit, whether challenge within Hickman principles of exceptions to compliance with time limits ‑ challenge within second of the Hickman principles

JUDICIAL REVIEW ‑ Ground 1 ‑ ground alleges approved development breaches height of building development standard set by Willoughby Local Environmental Plan 2012 (the LEP) ‑ request pursuant to cl 4.6 of the LEP to permit non‑compliance with the development standard ‑ Planning Panel approved request to permit non‑compliance but on the basis that required modification of the development for which consent had been sought ‑ three tests in cl 4.6 of the LEP required to be applied to the proposed development for which application had been made ‑ Planning Panel did not misapply the tests in cl 4.6 of the LEP ‑ granting of dispensation for non‑compliance of the Height of Building Development Standard valid ‑ Ground 1 fails

JUDICIAL REVIEW ‑ Ground 2 ‑ LEP requires that the western street frontage of the site be activated ‑ majority of the western street frontage proposed to be screening of ground level car parking ‑ consideration of extent to which activated street frontage required ‑ consideration of whether requirement for activated street frontage is a development standard ‑ held requirement for activated Street frontage is a development standard amenable to a dispensation request pursuant to cl 4.6 of the LEP ‑ no dispensation request made with the development application ‑ without a dispensation request satisfying cl 4.6 of the LEP, failure to satisfy the requirement for an activated street frontage on the western boundary of the site rendered development prohibited ‑ Planning Panel failed to give proper consideration to requirement for activated street frontage on western boundary of the site – consideration of matters of discretion - ground 2 upheld but, as a matter of discretion, relief refused

JUDICIAL REVIEW ‑ Ground 3 ‑ ground proposes shop top housing must be directly vertically above ground floor commercial premises ‑ all dwellings above ground floor commercial premises ‑ proposed dwellings not all directly vertically above ground floor commercial premises ‑ definition of shop top housing does not require vertical alignment above ground floor commercial premises ‑ Ground 3 fails

JUDICIAL REVIEW ‑ Ground 4 ‑ ground alleges breach of floor space ratio (FSR) permitted by development standard in the LEP ‑ calculation of FSR by application of gross floor area (GFA) to area of the site ‑ dispute as to areas to be included in GFA for FSR calculation ‑ consideration of the definition of basement in the LEP ‑ correct calculation of the FSR discloses no breach of development standard – Ground 4 fails

JUDICIAL REVIEW ‑ Grounds 5 and 6 ‑ grounds alleges Planning Panel failed to consider requirements of cl 7 of State Environmental Planning Policy 55 ‑ Remediation of Land (the SEPP) ‑ Applicant gives evidence of knowledge of alleged contamination of the site coming to his attention in 1995 ‑ Applicant fails to disclose alleged contamination in submission to Council objecting to proposed development ‑ no adequate explanation of failure to disclose alleged contamination - Applicant developer of adjacent site to the east ‑ assuming basis for Grounds 5 and 6 made out (a matter not necessary to determine), proper exercise of discretion would require no declaration or orders appropriate arising from these grounds – no relief appropriate

COSTS – Applicant failed on three grounds – Applicant succeeds on one ground but obtains no relief as a matter of discretion – Applicant obtains no relief on two further grounds addressed on the assumption that the grounds are made out (it not being necessary to determine if they were made out) – costs ordinarily follow the event – the event is Applicant's failure to obtain any relief – costs are discretionary – apportionment of costs – apportionment appropriate to reflect Applicant's establishment of one ground even though relief was not appropriate – Applicant to pay 80% of Respondents costs

Legislation Cited:

Environmental Planning and Assessment (Public Exhibition) Regulation 2020

Environmental Planning and Assessment Act 1979, s 4.59

Environmental Planning and Assessment Regulation 2000, cl 124

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979, ss 20 and 71

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy No 55 ‑ Remediation of Land

State Environmental Planning Policy No 65 ‑ Design Quality of Residential Apartment Development

Uniform Civil Procedure Rules 2005, r 59.10

Willoughby Local Environmental Plan 2012

Cases Cited:

Al Maha Pty Ltd v Hajun Investments Pty Ltd [2018] NSWCA 245

Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223

Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 164

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

El Khouri v Gemaveld Pty Ltd [2023) NSWCA 78

Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349

Collector of Customs v Pozzolanic (1993) 43 FCR 280

Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

James v Surf Road Nominees Pty Ltd (No2) [2005] NSWCA 296

Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1

Lahoud v Willoughby City Council [2022] NSWCA 214

Lahoud v Willoughby City Council [2022] NSWLEC 125

Liverpool City Council v Roads & Traffic Authority & Interlink Roads Pty Ltd (1991) 74 LGRA 265

Lu v Walding (No 2) [2021] NSWLEC 21

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Newcastle and Hunter Valley Speleological Society Inc v Upper Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48

Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Ross v Lane [2022] NSWCA 235

Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55

Sze Tu v Lowe (No 2) [2015] NSWCA 91

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Woolworths Ltd v PallasNewco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422

Texts Cited:

Willoughby Local Centres Strategy to 2036

Category:

Principal judgment

Parties:

Victor Lahoud (Applicant)
Willoughby City Council (First Respondent)
Helm Pty Ltd (Second Respondent)

Representation:

Counsel:
T Robertson SC/D Robertson, barrister (Applicant)
Submitting appearance (First Respondent)
A Galasso SC/H Grace, barrister (Second Respondent)

Solicitors:
Woolf & Associates (Applicant)
Lindsay Taylor Lawyers (First Respondent)
Mills Oakley (Second Respondent)

File Number(s):

292505 of 2021

Publication restriction:

No

Judgment

Introduction

1. On 29 June 2021, the Willoughby Local Planning Panel (the Planning Panel) on behalf of the Willoughby City Council (the Council) considered a development application made by Helm Pty Ltd (the Company) seeking consent for “Adaptive conversion of the existing building into shop top housing including additional level” at 131 Sailors Bay Road, Northbridge (the site).

2. The Planning Panel decided that it was appropriate to grant development consent to the Company’s proposed development subject to conditions. The Planning Panel gave reasons for its decision in a document entitled “Determination and Statement of Reasons” dated 29 June 2021. It is to be noted that one of the conditions required the deletion of the northern portion of the uppermost level of the Company's proposed development.

3. The Council issued a “Notice of Determination of a Development Application” (including conditions) to give effect to the Planning Panel’s decision (Exhibit A, Tab 13, folios 281 to 315). The document is undated but is described as operating from the date of the Planning Panel’s decision (29 June 2021).

4. On 14 October 2021, Mr Victor Lahoud (the Applicant) commenced Class 4 judicial review proceedings challenging the granting of development consent to the Company. The Applicant has an interest in the neighbouring land to the east of the site (at 135‑145 Sailors Bay Road). The Council became the First Respondent to the proceedings and the Company became the Second Respondent. The Council has filed a submitting appearance except as to costs.

5. On 4 March 2022, Pepper J granted the Applicant leave to file and rely on a Further Amended Summons. The Further Amended Summons was filed on 10 March 2022. It contends that the Planning Panel’s decision is invalid on six grounds ‑ all alleging jurisdictional error in the Planning Panel’s decision‑making. It is to be noted that Grounds 5 and 6 are not pleaded until the Applicant’s Further Amended Summons.

The joinder application

6. On 8 September 2022, a Notice of Motion was filed on behalf of the Applicant seeking to join in the Planning Panel as a respondent to the proceedings. The Applicant’s purpose in seeking joinder of the Planning Panel was to be able to seek to serve interrogatories on that panel concerning, at least, the extent to which that panel had been aware of, and had to give consideration to, the potential for contamination to exist on the site.

7. That application was heard by me on 4 October 2022 and, on 13 October 2022, I dismissed the application (Lahoud v Willoughby City Council [2022] NSWLEC 125).

8. On 17 October 2022, the Applicant applied to the Court of Appeal for leave to appeal against my refusal to join the Planning Panel as a respondent to the proceedings. That application was heard on 19 October 2022. The application for leave to appeal was refused on 21 October 2022 (Lahoud v Willoughby City Council [2022] NSWCA 214).

9. As a consequence, as later discussed in the context of Grounds 5 and 6, the only potentially relevant primary evidence on contamination matters pressed on behalf of the Applicant is the limited material in the Council’s Assessment Report and the affidavit and oral evidence of the Applicant on this issue.

Representation

10. The Applicant was represented by Mr T Robertson SC and Mr D Robertson, barristers and the Company by Mr A Galasso SC and Mr H Grace, barristers. Although the Council played an active role in the preliminary hearings concerning the application that the Planning Panel be joined as a respondent to the proceedings, the Council filed a submitting appearance for the purposes of the substantive hearing and took no part in it.

The hearing and subsequent written submissions

11. The substantive hearing was conducted over four days between 1 and 4 November 2022.

12. As later described, two decisions of the Court of Appeal were delivered during the period of my preparation of this reserved judgment – those two decisions necessitating the provision of opportunities to the parties to provide written submissions as to what role the matters determined by the Court of Appeal in those two cases might play in my consideration of the matters raised in these proceedings. Two opportunities for written submissions were provided, the latter of them resulting in final written submissions being received by me in late June 2023.

The evidence

13. The documentary evidence for the Applicant was:

•   Exhibit A - Evidence Book Vol 1(to extent of documents not rejected)

•   Exhibit B - Evidence Book Vol 2 (to extent of documents not rejected)

•   Exhibit C - Expert Report of Mr Barry 31 March 2022

•   Exhibit D - Guidelines SEPP 55 – Remediation of Land

•   Exhibit E - Evidence Book Vol 3 (excluding tabs 44 to 48)

•   Exhibit F - E-mails between Mr Lahoud and Mr Robertson – September 2021

•   Exhibit G - E-mails between Mr Lahoud and Mr Robertson – October 2021

•   Exhibit H - Copy of Willoughby Planning Scheme Ordinance

•   Exhibit J - Copy of relevant maps relating to Willoughby Planning Scheme Ordinance

•   Exhibit K - Surveyors Joint Expert Report

14. The documentary evidence for the Company was:

•   Exhibit 1 - Mr Robertson’s Memorandum of Advice 12 October 2021 page 2

•   Exhibit 2 - Copy of Notice to Produce and Application Form for Development Approval

•   Exhibit 3 - Macquarie Dictionary definition of “service station”

•   Exhibit 4 - USB stick containing electronic version of Evidence Book Tab 14 (MO-3547323 password)

15. Affidavit evidence was provided for the Applicant, by:

1. two affidavits of the applicant himself, these being dated 20 October 2022 and 18 February 2022. The applicant gave oral evidence on 2 November 22 concerning matters relating to the commencement of the proceedings and matters relating to contamination of the site as discussed in his affidavit of 18 February 2022;

2. an affidavit from Mr Gerrard Barry, an engineer, concerning the extent of excavation that would be required on the site for the purposes of implementing the Company's proposed development; and

3. Mr Stuart de Nell, a surveyor who provided an affidavit concerning gross floor area (GFA) calculations he had made arising from the plans for the Company's proposed development. Mr de Nell also provided an affidavit in reply to that of Mr Walton.

16. Expert reports were provided for the Company by:

1. Mr John Walton, a surveyor who addressed the question of the Company’s GFA calculations in an affidavit; and

2. Mr Brendan Page, an environmental consultant engaged by the Company. Mr Page was required for cross-examination.

17. The surveyors produced a joint expert report in the conventional form and were required to give concurrent oral evidence.

A general observation on assessing planning decisions

18. Before turning to any matters of detail requiring consideration in these proceedings, it is appropriate to set out how decision-making by bodies such as the Planning Panel is to be approached. Two passages from Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272) are appropriate to be set out. In the first, the plurality (Brennan CJ and Toohey, McHugh and Gummow JJ) referred with approval to what the Full Court of the Federal Court had said in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 – this being:

“It was said that a court should not be ‘concerned with the looseness in the language…nor with unhappy phrasing’ of the reasons of an administrative decision-maker. The Court continued: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’

19. Having set out that extract, the plurality then continued:

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”

20. in the same decision, Kirby J said, at 291 (in a separate but concurring judgment):

“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”

21. The approach to be taken in this Court in assessments of primary planning decision-makers (whether bodies such as the Planning Panel, councils, council officers making decisions under delegated authority or, indeed, the Commissioners of this Court) when have such decisions assessed in the fashion discussed above by the High Court – that is not raked through with a fine toothed comb seeking legal error in what might, in reality, be infelicitous or loose use of language (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367).

22. It is with this general guidance as to how the Planning Panel’s decision-making process and reasoning should be considered, I will later turn to address each of the specific grounds advanced on behalf of the Applicant.

Are the proceedings out of time?

Introduction

23. The preliminary point is raised on behalf the Company that the proceedings, being commenced by a Summons filed on 14 October 2021, were commenced after the expiry of the statutory period set by the Environmental Planning and Assessment Act 1979 (the EPA Act) within which proceedings challenging a development consent were required to be commenced for such proceedings to be commenced validly. The issue arises as a consequence of s 4.59 of the EPA Act, a provision in the following terms:

4.59   Validity of development consents and complying development certificates

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or a certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

24. The then applying regulation, Environmental Planning and Assessment Regulation 2000, provided relevantly in cl 124:

124   Validity of development consents

For the purposes of section 4.59 of the Act, a notice relating to the granting of a development consent must be published on the consent authority’s website and must describe the land and the development the subject of the development consent.

25. The decision of the Planning Panel was made on 29 June 2021. As a consequence, the first issue requiring to be addressed is “when was the notice required by s 4.59 of the EPA Act given in a fashion that would cause the three‑month exclusionary period set by this privative clause, commenced to run?”

26. The second issue requiring consideration (even if only on a contingent basis) is whether, if the three‑month exclusionary period provided for by s 4.59 expired before 15 October 2021, is the statutory provision effective in barring commencement of judicial review proceedings in circumstances where one or more complaints (as is here the position) are made that the decision of the consent authority (here the Planning Panel) was made in circumstances infected by jurisdictional error?

27. Various jurisdictional errors are proposed on behalf of the Applicant where, on the Applicant's case, the Planning Panel purported to exercise the decision‑making power vested in it concerning the Company’s development application (DA) when a number of mandatory threshold prerequisites to the exercise of that decision‑making power had not been complied with by the Planning Panel.

28. For the purposes of considering this second basis of complaint raised by the Company and the Applicant's response to it, it will be necessary to consider relevant provisions of the Land and Environment Court Act 1979 (the Court Act) and how, within the relevant contemporary legal landscape, the powers of this Court are to be understood with respect to the exercise of judicial review functions concerning development consents in the limited circumstances where the complaints concerning the exercise of the power to grant development consent are said to be infected by one or more jurisdictional deficiencies. In this context, the terms of ss 20(2) and 71 of the Court Act are relevant. These provisions are in the following terms:

20   Class 4—environmental planning and protection, development contract and strata renewal plan civil enforcement

(1)   The Court has jurisdiction (referred to in this Act as “Class 4” of its jurisdiction) to hear and dispose of the following—

…

(e)   proceedings referred to in subsection (2).

(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings—

(a)   to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,

(b)   to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,

(c)   to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function,

(d) whether or not as provided by section 68 of the Supreme Court Act 1970—to award damages for a breach of a development contract.

71   Proceedings in Supreme Court

(1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court.

(2) The jurisdiction conferred on the Court in respect of proceedings referred to in section 20(1)(e) is not limited by any provision of the Civil Procedure Act 2005 or the uniform rules under that Act.

The publications on the Council's website

29. Before turning to set out the competing submissions concerning when the time period specified by s 4.59 commenced to run (to what effect, requiring separate and subsequent consideration ‑ if only on a contingent basis), it is appropriate to set out three steps taken by the Council to provide information on its website concerning the outcome of, and the reasons for, the decision of the Planning Panel of 29 June 2021.

30. Information was uploaded to the Council's website on three occasions on differing dates.

31. The first tranche of information was uploaded to the Council's website on 30 June 2021. It was uploaded to a webpage entitled “WLPP meeting ‑ 29 June 2021 ‑ Determination and Statements” (Exhibit B, Tab 53, folios 1421 to 1424).

32. The second uploading of information concerning the Planning Panel's decision took place on 1 July 2021, when material was uploaded to a webpage entitled DA Tracker. A screenshot of the content of this page and its URL location are also in evidence (Exhibit E, folio 1415).

33. The final instance of uploading to the Council's website of material concerning the Planning Panel's decision of 29 June 2021 took place through an element of the Council’s website entitled “Received & Determined Development Applications”. This element of the Council's web information provision is updated at fortnightly intervals and sets out, in brief summary form, information concerning new DAs received by the Council during the previous period, together with information concerning DAs which were determined during that period. The relevant upload to this portion of the Council’s website concerning the Planning Panel's decision on 29 June 2021 occurred on 15 July 2021. A screenshot (comprising three A4‑printed pages) of the material uploaded to this portion of the Council’s website on 15 July 2021 is in evidence (Exhibit A, Tab 19, folios 362 to 364).

34. After setting out material concerning fresh DAs received during the period between 26 June and 9 July 2021, the following heading appears before the list continues to set out matters relating to DAs which were determined during that period. This heading is in the following terms:

Pursuant to s. 4.59 of the Environmental Planning and Assessment Act 1979 and the Regulations, Council notifies the granting of the following development consents and/or complying development certificates which can be viewed on Council's Application Tracking System [URL omitted].

35. The fourth item listed below this heading is that which deals with the development consent granted to the Company ‑ being the development consent for the site which is the subject of these judicial review proceedings brought by the Applicant. This item on the “Received & Determined Development Applications” page published on 15 July 2021 was in the following terms:

DA‑2020/238

131 Sailors Bay Road NORTHBRIDGE

Adaptive conversion of the existing building into shop top housing including additional level.

36. At this point, it is also appropriate to note that the Company’s DA form, as lodged with the Council, to commence the process, which led to the Planning Panel's approval on 29 June 2021, contained, under the heading “Description of Proposal” on its first page, the following description of the Company's proposed development:

Adaptive reuse of the existing isolated building via its conversion into shop top housing. The proposal will retain the majority of the existing structure (including parking levels), with extensions north and south, plus the addition of a partial fifth level, resulting in a ground floor business premises, 14 apartments and 18 car spaces.

37. The final relevant element needing to be reproduced before turning to consider the matters in contention between the parties as to whether or not these proceedings were commenced within the time period specified by s 4.59 of the EPA Act is to set out the requirements contained in cl 124 of the Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation) (this being the relevant provision applicable to any notice pursuant to s 4.59 triggering the commencement of running of the time period contained in that provision).

38. In this context, it is to be noted that, although the 2000 Regulation has subsequently been replaced by the Environmental Planning and Assessment Regulation 2021 (the 2021 Regulation), the 2021 Regulation did not come into effect until after any date relevant to the provision of material on the Council’s website concerning the decision of the Planning Panel made on 29 June 2021. Clause 124 of the 2000 Regulation, at the relevant dates, was in the following terms:

124   Validity of development consents

For the purposes of section 4.59 of the Act, a notice relating to the granting of a development consent must be published on the consent authority’s website and must describe the land and the development the subject of the development consent.

The submissions on publication

39. It is not necessary to set out, in any detail, the submissions advanced by the active parties as to how compliance with the required period for publication was (or was not), satisfied. It is sufficient to note that the written and oral submissions from Mr Galasso on this point were that compliance with the requirement to publish the decision had been satisfied, on a date more than three months prior to the date when the proceedings were commenced by the Applicant.

40. The Company proposed that, as a matter of substance, both (but at least one) of the notifications on the Council’s website published on 30 June 2021 and 1 July 2021 constituted publication in the fashion required by the Regulation. As a consequence, the Applicant's proceedings having commenced more than three months after both of these dates and thus were out of time.

41. Understandably, contrary to this position, Mr Robertson's written and oral submissions proposed that the date of publication was the notification on 15 July 2021 on the Council’s Received & Determined Development Applications page on its website. On this basis, it was submitted for the Applicant that the proceedings were commenced in time.

Publication ‑ consideration

Introduction

42. There are two separate reasons why I am satisfied that these proceedings have been commenced within time. The second of those reasons is adopted on a contingent basis against the event that I am incorrect in concluding, as my primary reason, that the period within which the privative clause operated concluded on 15 October 2021. I now turn to set out my reasoning for these two conclusions.

The s 4.59 notice was given on 15 July 2021

43. I have earlier set out the three separate occasions upon which the Council published information concerning the decision of the Planning Panel to approve the Company's development and, as a consequence, the Council’s issuing of its determination formally granting development consent to the Company.

44. Although the position advanced by Mr Galasso SC for the Company is that the three‑month period specified by s 4.59 of the EPA Act commenced to run from the first of those publications, I am satisfied that this is not correct. The alternative position, that advanced by Mr Robertson for the Applicant, that the notice was contained in the publication incorporated in the list of DAs received and determined, as published on 15 July 2021 on the Council’s website, is to be regarded as the date of publication for the purposes of s 4.59 of the EPA Act.

45. I have earlier set out the terms of the section itself and the terms of cl 124 of the 2000 Regulation, this being the applicable regulatory requirement needing to be met in order to satisfy the statutory provision.

46. In Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 (Hoxton Park), at [7] and [8], Basten JA set out the steps for such a compliant notice to meet the then applicable statutory terms. In this context, it is to be noted that the adoption, in March 2018, of the Dewey decimal numbering system for the EPA Act had the effect of converting what was, at the time of Basten JA's decision, s 101 of the EPA Act into s 4.59 of that Act but did not change the terms of the section.

47. It is also to be noted that the terms of cl 124 of the 2000 Regulation were in quite different terms (pre‑digital and web‑publishing terms) compared to that which presently applies (the change having been effected by the publication of the Environmental Planning and Assessment (Public Exhibition) Regulation 2020 on 17 April 2020 on the NSW Legislation website).

48. In Hoxton Park, from [9] to [29], Basten JA analysed the notice that was the subject of the claim by the then applicant as to its alleged failure to comply with the requirements for such a notice as set by the then terms of cl 124 of the 2000 Regulation. The effect of his Honour's reasoning is be understood that strict compliance with the requirements of the 2000 Regulation was necessary and that any deviation from, or inadequacy in, meeting those requirements would render the notice invalid.

49. In the present instance, the publications on the Council's website on 30 June 2021 and 1 July (being the dates relied upon by the Company as bases for submitting that the s 4.59 period had expired prior to 15 October 2021) were not in the express and confined terms of the details specified by s 4.59 itself. The publication on 15 July 2021, being that upon which the Applicant relies, did comply strictly with the requirements for a notice set by s 4.59 in terms and was published in compliance with cl 124 of the 2000 Regulation.

50. As a consequence, I am satisfied that the three‑month time period specified by s 4.59 did not commence to run until 15 July 2021, thus rendering these proceedings commenced on 14 October 2021 as being within time.

If the s 4.59 notice was given earlier than 15 July 2021

51. However, against the eventuality that I am wrong in reaching this conclusion as to the validity of the proceedings commenced by the Applicant as being within the three‑month period, there is an alternative basis which leads to the conclusion that the proceedings could (and should) be regarded as being validly commenced (if the correct starting date for the commencement of the statutory exclusionary period is that of either of the earlier publications on the Council's website).

52. I am fortunate that, in Lu v Walding (No 2) [2021] NSWLEC 21 (Lu v Walding), Pain J set out, between [103] and [123], an extensive and comprehensive analysis as to why the decision of the Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 survived to remain operative despite the decision of the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1. I do not propose to set out the terms of her Honour's analysis but I gratefully adopt her reasoning as explaining why s 4.59 would remain applicable to set, prima facie, an earlier barrier date that would apply to these proceedings commenced by the Applicant on 14 October 2021.

53. However, in Lu v Walding, her Honour then continued to explain, at [124] to [127], why a privative provision such as s 4.59 remains subject to the exceptions described as the Hickman principles (derived from the High Court's decision in Rv Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53).

54. It is also unnecessary for me to set out the entirety of her Honour's reasoning as to why the Hickman principles remain applicable to be considered as to whether any of the exceptions set out by the High Court potentially provided a basis upon which to conclude that a pathway remained open to pursue a judicial review challenge of a decision, despite the effluxion of the time otherwise set to give rise to a barrier to the commencement of such proceedings.

55. It is, here, appropriate to set out the three matters that are derived from the High Court's decision in Hickman and now require consideration. They were described in the judgment of Dixon J (as his Honour then was), at page 615, in the following terms:

Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.

56. For present purposes, I am satisfied that these proceedings commenced by the Applicant fall within the second of the Hickman principles and that, therefore, they are rendered capable of having been brought within time.

57. I have reached this conclusion because the grounds that are pressed on behalf of the Applicant question whether the determination made by the Planning Panel did constitute a bona fide attempt to exercise its decision‑making power given that the Applicant contends that, in a number of aspects set out in the various grounds which are later addressed, the Planning Panel acted in excess of its jurisdiction by not having proper regard to the restrictions placed on that exercise of jurisdiction.

58. However, for that to occur (if this basis of validity is necessary), the Applicant needs to be granted an extension of time until 14 October 2021 to validate the commencement of the proceedings. The ability to apply for, and to be granted, such an extension is governed by r 59.10 of the Uniform Civil Procedure Rules 2005 (UCPR), a provision in the following terms:

59.10    Time for commencing proceedings

(1)   Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2)   The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3)   In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following—

(a)   any particular interest of the plaintiff in challenging the decision,

(b)   possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c)   the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)   any relevant public interest.

(4)   This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.

(5)   This rule does not apply to any proceedings in which the setting aside of a decision is not required.

59. To consider if it is appropriate to grant such an extension, it is necessary to examine the explanation advanced by the Applicant for the delay in commencing proceedings by his reliance on the time period set by s 4.59 being taken by him as running from 15 July 2021.

60. There are two aspects of the Applicant's evidence in this regard which require consideration. The first element is contained in his affidavit evidence. In his affidavit dated 20 October 2022, the Applicant explained how he had become aware of the granting of the consent to the Company for its redevelopment of the site by his examination of the notice published on the Council's website on 15 July 2021. The relevant portion of his affidavit evidence was in the following terms:

1   I am the applicant in these proceedings. The purpose of this affidavit is to explain when and how I became aware of facts relating to the grant of the development consent for DA‑2020/238, for adaptive reuse of the existing building at 131 Sailors Bay Road, Northbridge (the Consent).

2   As mentioned in my earlier affidavit, my company Castle Constructions Pty Ltd (Castle Constructions) was involved in the construction of the neighbouring building at 135‑145 Sailors Bay Rd. Up to the present day Castle Constructions continues to own several lots in that building and occupies one of those lots as its business premises.

3   In October 2020, I became aware that DA‑2020/238 had been lodged, when it was placed on public exhibition.

4   On 22 November 2020, I lodged a submission objecting to that application on behalf of Castle Constructions. A copy of that submission is annexed to this affidavit and marked “A”.

5   In late June 2021, I became aware that DA‑2020/238 was scheduled to be determined at a meeting of the Willoughby Local Planning Panel (WLPP) scheduled to be held on the afternoon of Tuesday 29 June 2021. I did not attend that meeting. However, my brother Joseph Lahoud attended the meeting. Following the meeting, Joseph informed me that the WLPP had “approved the DA subject to conditions which require the developer to submit amended plans” (or words to that effect).

6 From the time that I became aware of the WLPP’s decision I contemplated bringing a legal challenge to the granting of the Consent. Through my experience as a property developer and a previous litigant in the Land and Environment Court, I was aware that the time for commencing any such challenge was 3 months from the date on which the Consent was publicly notified. I had that knowledge because I was aware of the terms of section 4.59 of the Environmental Planning and Assessment Act 1979 (the Act).

7   Through my experience as a property developer, I was aware that it was the practice of Willoughby City Council (the Council) to publicly notify the grant of new consents every 2 weeks by means of the List of Received and Determined Development applications published fortnightly on the Council’s website. For a number of years it had been my practice to check this List, mostly on weekends, to keep myself informed about developments submitted and or approved in the Willoughby LGA. Approximated 75% of the developments which Castle Constructions has been involved in over the years have been in the Willoughby LGA.

8   In early July 2021, I searched the List of Received and Determined Development applications which was published on the Council’s website. I did not find any reference to DA‑2020/238 in the most recent List which was published on the Council’s website at the time (which was for the period to 25 June 2021). I knew at the time that the next version of that List would cover the two‑week period commencing on 26 June 2021.

9 On about 17 July 2021, I searched the List of Received and Determined Development applications which had been published on the Council’s website on 15 July 2021. The List published on 15 July 2021 included a notification of the grant of the Consent. The List was also prefaced by the following statement: “Pursuant to s.4.59 of the Environmental Planning and Assessment Act 1979 and the Regulations, Council notifies the granting of the following development consents and/or Complying Development Certificates which can be viewed on Council’s Application Tracking system”. Annexed hereto and marked “B” is a copy of the List of Received and Determined Development applications published on the Council’s website on 15 July 2021.

10 Having read the List of Received and Determined Development applications published on 15 July 2021, I formed the view that the 3‑month period referred to in section 4.59 of the Act commenced on 15 July 2021 and would expire on 15 October 2021.

11   Therefore, on 14 October 2021, I ensured that my solicitor filed the Summons commencing this proceeding, so that the proceeding was commenced before 15 October 2021.

61. The Applicant was also cross‑examined by Mr Galasso on this issue, particularly with respect to his interactions with Council and his subsequent engagement of Mr Woolf to commence the proceedings. Although somewhat lengthy, it is appropriate to reproduce the entirety of this element of Mr Galasso's cross‑examination of the Applicant (Transcript 2 November 2022, page 112, line 46 to page 118, line 19):

Q. I just want to ask you first about that second affidavit. If you turn to page 3, in paragraph 9, you say that on or about 17 July, you searched the list, et cetera, and that the list published on 15 July included a notification. Do you see that?

A. Yes.

Q. And then, at the end of that paragraph, you say, “Annexed hereto and marked B is a copy of the list of received and determined development applications published on council’s website on 15 July.”

A. Yes.

Q. If his Honour turns to annexure B, that is a printout of a list made on 20 September 2021. You see that, top left‑hand corner?

A. Yes.

Q. You are not saying that this is a list that you printed out on 17 July, are you?

A. No, no, this is not the actual copy.

Q. Sorry?

A. This is not the actual copy.

Q. No, but someone printed this out on 20 September 2021, correct, and by 20 September 2021, you had engaged Mr Woolf to act on your behalf potentially in this proceeding.

A. Yes.

Q. And you’ve done that well before 20 September, hadn’t you?

A. Correct.

Q. How many months before?

A. I don’t ‑ I don’t recall. Several ‑ several months.

Q. It was shortly after the meeting of 29 June, wasn’t it?

A. It wasn’t shortly. It was, like, about a month, month and a half after.

Q. So would it be fair to say that by about the end of July or around the end of July 2021, you had engaged Mr Woolf to act on your behalf potentially in relation to this matter?

A. I believe so, around that time.

Q. As part of your engagement of Mr Woolf, you had received some written advice from Mr Robertson of senior counsel, hadn’t you?

A. It wasn’t ‑ it wasn’t part of that, no. Sorry.

Q. Have you received written advice from Mr Robertson in relation to this proceedings?

A. Yes, I did.

Q. What you received was a memorandum of advice dated 12 October 2021.

A. I don’t remember the date, but it will be

Q. Let me show you a page of the advice, and it’s only a page, Mr Lahoud, because that’s all your legal team has provided ‑ a copy for his Honour ‑ and do you recognise this page?

A. I don’t.

Q. You’ve never seen this before?

A. I'm not saying I don’t ‑ I haven't seen it. I don’t recognise it now because it looks different to something I've seen before.

Q. I want you to assume it’s been provided to us, that is, my team

A. Yes.

Q. by your team, as an element of advice that’s prepared by your team.

A. Yes.

Q. First of all, do you see the date, 12 October 2021?

A. Yes.

Q. That’s before the date that the summons was filed in this proceeding, correct?

A. Yes, yes.

Q. And do you see, in paragraph 5 ‑ there's only one paragraph 5 there ‑ there's a sentence that starts, “Although UCPR 59.10 imposes a time limit”. Do you see that?

A. Yes.

Q. And it talks about time limit of three months from the date of the decision which expired on 29 September 2021.

A. Yes.

Q. That is, expired. Past tense is used, so presumably, whoever has written this ‑ I assume it’s Mr Robertson ‑ is writing this at some time after 29 September 2021.

A. I'm assuming so.

Q. Did you understand from that that there was the prospect that by the time this advice was prepared, the time limitation for commencing proceedings had already expired?

A. No, I didn’t.

Q. Do you see in the middle of that paragraph, Mr Robertson says, “I am instructed that notice of the granting of the consent was published on 15 July 2021”?

A. That’s the sentence before, yes.

Q. Is that on the basis of what you told Mr Woolf, or did you ask Mr Woolf to establish that date himself?

A. No, this was on the basis of discussions I had with Mr Robertson previous ‑ previous to this document.

Q. So is this the case, that you had discussion

…

GALASSO

Q. May we take it, you had discussions with Mr Robertson well before 12 October 2021?

A. Yes.

Q. In the month of September, you'd had discussions with him.

A. I think it was earlier as well.

Q. Notwithstanding those discussions and notwithstanding what's raised in this paragraph 5, your instructions to your solicitor ‑ this is paragraph 11 of your affidavit ‑ were that you say, “On 14 October, I ensured that my solicitor filed the summons commencing this proceeding.”

A. Sorry, which paragraph?

Q. paragraph 11.

A. Yes.

Q. I'm interested in the word, “ensured”. Did you give him instructions on the 14th to file on that day, or had you given him instructions to file earlier than the 14th?

A. No, the instructions were to file prior to the 15th of ‑ of ‑ of October.

Q. But when did you give that instruction?

A. Earlier. I'm ‑ I'm not sure how much earlier.

Q. Are you able to assist us with approximately how much before 14 October you gave the instruction to commence proceedings?

A. I'm trying to recall, actually. It could have been ‑ I know, actually, it was on the date we got the advice from Mr Robertson in writing, which was about, I think, the day before or two days before.

Q. So is this the case, you'd provided instructions to your legal team well before September. You had had conferences with your legal team before and including September, but you waited until Mr Robertson’s advice on 12 October to give instructions to commence proceedings.

A. Yes.

Q. And your instructions weren’t to commence proceedings straightaway. Your instructions were to commence proceedings on 14 October, were they not?

A. As long as it was before the 15th. No later than the 15th.

Q. Sorry, did you give instructions to commence proceedings on the 14th, or did you give instructions earlier than the 14th to commence proceedings?

A. I ‑ I gave instructions for the summons to be filed on the 14th, or no later than the 15th. If that’s what's commencing proceedings, the answer is yes.

Q. Sorry if you misunderstood what I meant by commencing proceedings. The filing of the summons

A. Yes.

Q. you said file it on 14 October.

A. Correct.

Q. That is, you’ve purposely waited for the very last moment for what you thought was the period that you could file the summons.

A. I did not wait deliberately. I was ‑ I waited until I received firm advice from Mr Robertson about the prospect.

Q. Is this the case, do you know when Mr Robertson was briefed to provided his firm advice?

A. I don’t recall the date, but I know when he provided it. It was early

Q. I know, but that wasn’t my question, was it?

A. Sorry.

Q. Do you know when Mr Robertson was asked to provide his advice?

A. About prospects?

Q. Yes.

A. It was ‑ I'm guessing it could be early September.

Q. So, is this the case that, if you waited until you got prospects advice to make the decision to file the proceedings, and the request for advice was early September, would you agree that had you received the advice in September, there is the possibility that you would have given instructions to commence proceedings in September?

A. There were other complications in ‑ in the ‑ in the ‑ in the issue, and I can explain it if you ‑ if you want me to. But the answer would have been, “yes’. If ‑ if ‑ if I had the same advice earlier, we would have filed it ‑ we would have filed the summons early.

Q. And you’re aware, are you not, that my team has taken a point about time?

A. Yes, yep.

Q. May we take it, if you were aware about the debate about time‑‑

A. Yes.

Q. ‑‑you would have commenced proceedings earlier than 14 October.

A. Provided I had the advice and ‑ and the other complication that I had to deal with was sorted out, the answer is yes.

Q. Well, he’s going to ask you in re examination what the other complication was.

A. I’ll be happy to tell him.

Q. I may as well ask you now.

A. It’s ‑ it’s ‑ this is ‑ this is not ‑ I mean, the proceedings are in my name but there’s the owner’s corporation involved. We had to do a lot of work and call meetings and ‑ and obtain approvals from a number of owners about ‑ about joining in the proceedings and then working out how to do it. It was a very complicated matter, and it took some time.

Q. But these proceedings have nothing to do with the owner’s corporation, Mr Lahoud. They’re brought in your own name.

A. They are in my own name, but they do have something to do with the owner’s corporation. There’s an agreement between me and the owner’s corporation about that.

Q. About costs?

A. Correct.

Q. So, is this the case that, is the owner’s corporation funding your litigation, is it?

A. They’re not funding the litigation; they are sharing part of the costs of the litigation.

Q. So, if you lose, they pay some of the costs.

A. No. The agreement is whether I lose or not, they pay some of the costs and I pay some of the costs. If we ‑ if we lose we lose. If we‑‑

Q. So, these are proceedings not only brought by you and your own name, they’re brought on behalf of other people. Is that the case?

A. Correct.

Q. But that’s not something that anyone was aware of until a few moments ago.

A. I ‑ if anybody asked me about it, I would have told them. The owners ‑ the owners involved are aware of it.

Q. Well, the owners involved were aware of the decision on 29 June, were they not?

A. I’m not sure that they were all aware of the decision, no.

Q. You certainly were aware of the decision on 29 June, were you not?

A. I knew of the decision on 29th or the ‑ I think the 29th, yes.

Q. But the meeting by the panel, that was a meeting that was undertaken on a Zoom format was it? Was on an audio visual format?

A. I didn’t attend the meeting. I believe it was Zoom.

Q. But you were in the Zoom loop, were you not?

A. I was not, no.

Q. Are you sure about that?

A. I wasn’t able to make it, so I trusted Youseff to tell me what happened at the meeting.

Q. You entrusted your brother to tell you.

A. That’s correct.

Q. And he told you immediately following the meeting.

A. Sorry?

Q. He told you immediately following the meeting what had happened.

A. Correct, yes.

62. At its longest, the delay between the expiry of the s 4.59 of the EPA Act exclusionary period founded on the first of the publication dates on the Council's website (29 June 2021) and the actual date of the commencement of these proceedings was some sixteen days.

63. I am satisfied that the evidence given by the Applicant explaining the reasons for the delay, when coupled with the comparatively modest period of the delay, does provide an adequate basis, if it is necessary to do so, upon which to grant an extension of time for the commencement of the proceedings pursuant to r 59.10 of the UCPR. To the extent necessary, my orders will provide that, pursuant to r 59.10 of the UCPR, the time within which the Applicant could commence these proceedings is extended up to and including 14 October 2021.

Relevant statutory provisions

The relevant general provisions of the EPA Act

64. It is, first, appropriate to set out the terms of the provision of the EPA Act, which permits the Applicant to bring these proceedings (having found for reasons earlier explained, that the proceedings have been validly commenced). The provision which permits the bringing of these proceedings is 9.45, a provision in the following terms:

9.45   Restraint etc of breaches of this Act

(1)  Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2)  Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3)  ….

(4)    (Repealed)

65. It is also relevant to set out the terms of the provision that establishes the range of orders available to the Court if, in proceedings brought pursuant to s 9.45, a breach of the Act is established. These are set out in s 9.46. The terms of s 9.46 are:

9.46   Orders of the Court

(1)  Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2)  ….

(3)  ….

(4)  The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.

(5)  ….

66. As can be seen from the terms of s 9.46(1), the question of whether or not the Court should intervene if a breach of the act is established is a discretionary one, the exercise of which discretion must be undertaken judicially. This is a provision to which I will later return.

Other relevant statutory matters

67. As a significant number of elements of the Willoughby Local Environmental Plan 2012 (the LEP) are engaged for different grounds in the Further Amended Summons, the relevant provisions of the LEP will be set out in the context of that ground. In addition, elements of the EPA Act and State Environmental Planning Policy 55 ‑ Remediation of Land (SEPP 55) will also be set out at the relevant point in this decision if another provision requires specific consideration. Although SEPP 55 was replaced by State Environmental Planning Policy (Resilience and Hazards) 2021, this took place after the making of the Planning Panel’s decision.

68. In a number of instances, relevant clauses of the LEP referred to maps that define the relevant planning controls. Each of those maps is accessible electronically through the maps function linked to the LEP on the NSW Legislation website.

Seeking dispensation from compliance with development standards

69. For present purposes, it is sufficient to note only one provision of the LEP. This is a general beneficial and facultative provision, cl 4.6, which enables an applicant for development consent to request dispensation from compliance with any development standard contained in the LEP that would otherwise act to limit a relevant aspect of the proposed development.

70. Subject to satisfaction of the tests set out in the clause, the clause enabled the Planning Panel to consider and approve any request made by the Company to be permitted not to comply with the development standard subject to such a request. This clause of the LEP is in the following terms:

4.6   Exceptions to development standards

(1)   The objectives of this clause are as follows—

(a)   to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)   to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)   Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)   Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)   that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)   that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)   Development consent must not be granted for development that contravenes a development standard unless—

(a)   the consent authority is satisfied that—

(i)   the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)   the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)   the concurrence of the Planning Secretary has been obtained.

71. The terms of cl 4.6 of the LEP set a number of gateway tests mandated to be addressed in an applicant's dispensation request. The request must satisfy each of these gateway tests to the satisfaction of the consent authority before such a dispensation request can be approved (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 (RebelMH) and Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118).

72. In this instance, the Company has made such a request seeking dispensation from compliance with the Height of Building Development Standard that would otherwise be applicable to, and setting the permitted maximum height for, any proposed development on the site. Dispensation from compliance with the Height of Building Development Standard applicable to the site is necessary in order to permit consent being granted to the proposed additional upper level sought to be constructed on the site. This was the only such request that accompanied the Company’s DA and, thus, which was considered by the Planning Panel.

73. It will, later, be necessary to consider not only the terms of the Company’s dispensation request concerning compliance with the height of buildings clause in the LEP (a dispensation request acceded to by the Planning Panel in granting consent to the Company's proposed development of the site), but also as to whether, with respect to several other aspects of the Company’s approved development, such a request should have been made but was, in fact, not made.

Orders sought

74. The orders sought in the Further Amended Summons are:

(1)   Declare that the decision to grant development consent was not validly made.

(2)   Order that the consent and any construction certificate issued with respect to the consent be set aside.

(2A)   Order (on grounds referred to in paragraphs 8(e), 16B, 17 or 26) that the development application be refused.

(3)   Costs.

75. The detailed matters particularised with respect to each ground are set out at the commencement of the section of this judgment dealing with that ground.

Potentially relevant recent decisions of the Court of Appeal

Introduction

76. After I had reserved my decision at the conclusion of the hearing, two decisions of the Court of Appeal have been delivered addressing matters potentially capable of having a significant impact in the shaping of the outcome of these proceedings generally (or on individual grounds pressed on behalf of the Applicant in these proceedings as a consequence of the way a potentially relevant ground was pleaded).

77. As discussed in this portion of my judgment, the parties were provided with the opportunity to make submissions as to whether or not (and, if so, how) these decisions, potentially impacted on the approach I was required to adopt to all or any of the grounds pressed by the Applicant in his Further Amended Summons.

78. As a consequence, it is appropriate to set out the submissions provided for each of the active parties concerning each of these appellate decisions. Although the second of these appellate decisions might be characterised as one which subsumed the reasoning in the first, as the submissions on the first were referenced in the submissions on the second, the submissions on each of them are relevant for my consideration.

The decision of the Court of Appeal in Ross v Lane

Introduction

79. On 17 November 2022, the Court of Appeal handed down its decision in Ross v Lane [2022] NSWCA 235 (Ross v Lane). In that decision, the majority (Macfarlan JA and Basten AJA) addressed the question of the nature of matters to be determined by a consent authority as being purely matters for such assessment, rather than giving rise to any potentiality for determination of a jurisdictional fact. As it seemed to me that this position had potential relevance for a number of the grounds in these proceedings, I extended an invitation to the parties to make submissions on the relevance of the decision in Ross v Lane in the context of the grounds pleaded in these proceedings. The parties availed themselves of this opportunity, with concise written submissions being provided (including written submissions in reply on behalf of the Applicant).

The Applicant’s submissions on Ross v Lane

80. The submissions on behalf of the Applicant advanced the general proposition that the decision in Ross v Lane had no bearing on matters requiring determination. These submissions are set out below:

1.   Ross v Lane [2022) NSWCA 235 (Ross) was decided on the premise that no question of permissibility or prohibition arose, and the only role of SEPP 65 was a factor for consideration ins. 4.15 (1)(a) of the Environmental Planning and Assessment Act 1979 (the EPA Acgt). By identifying that provision as the source of power for applying the SEPP, the majority reasoned that the question of its application fell within the assessment function of the consent authority. The question which the majority asked itself was whether the "application" of the SEPP in a particular case was a matter for the consent authority, subject to judicial review by the Court. The question was answered because it was s. 4.15 that required the consent authority to have regard to it and hence the appropriate implication was that the consent authority is empowered and required to determine which matters are relevant, and how they are engaged, in relation to a particular development application. There was in that case no clearly distinguishable function of classification as there was in determining the power of the authority to engage at all: [100), [102) ‑ [103).

2. To the extent that the application of a planning instrument is to be determined solely by reference to s. 4.15, the decision of the majority in Ross is unsurprising. All 4.15 factors are matters for consideration by the consent authority. Nothing in the decision disturbs the usual construction of ss.4.1‑4.3 of the EPA Act where an instrument has the effect of prohibiting development or prohibiting its carrying out unless it is in accordance with the instrument. Nor does it affects. 9.44, which deems a breach of an instrument to be a breach of the Act, and s 9.45 which enables the instrument to be enforced as if it was the Act. None of those provisions were in play in Ross.

3.   Does Ross have any implications for this case? As Basten AJA said [73) Ross did not seek to challenge the Council's decision on conventional judicial review grounds. Lahoud is pleaded quite differently to Ross. Every ground raises conventional judicial review errors. The question whether the development was shop top housing (ground 3) was a matter submitted for judicial determination, but Ross was careful to carve out such questions by preserving its decision in Pallas Newco, so that decisions about permissibility and other jurisdictional preconditions are not to be finally determined by the consent authority. In any event, the ground raises a conventional judicial review question concerning the construction of a definition, which is a question of law.

4.   Ground 2 attacked the Panel's decision about active street frontage, but it did so expressly on conventional judicial review grounds by pointing to the legal flaws in each reason given by the Panel for expressing its satisfaction that the building would have an active street frontage: Amended Summons (AS), para 15. It is unnecessary to parse each alleged error: all fall within the passage in Buck v Bavone (1976) 135 CLR 110 at 118 ‑ 119, cited by Basten AJA in Ross at [70] and by us in submissions. Suffice to say that AS [15] challenges an opinionative determination for error of law and misconstruction of the clause, leading to a failure to take into account relevant considerations, taking into account irrelevant considerations and making a decision which no reasonable decision‑maker could have made, demonstrating a misunderstanding of the nature of the opinion that must be formed: R. v. Connell; ex parte Hetton Bel/bird Collieries Ltd (No 2) (1944) 69 CLR 407 at 432.

5.   Another way to classify the ground is that the Panel failed to address, on a proper construction of the control, the question for decision: a constructive failure to exercise jurisdiction. This is not a separate ground of review but a more precise way of expressing the existing grounds. It was discussed by Kirk JA in Ming v. OPP (NSW) [2022] NSWCA 209 at [12] ‑ [13], and by Basten JA in Alexandria Landfill v. Transport for NSW [2020] NSWCA 165 at [6] ‑ [10]. It is a failure to exercise the power or complete its exercise by reason of having failed to engage with an issue of importance to the matter being resolved: Ming [15]. It has nothing to do with jurisdictional facts but concerns the decision‑maker's misunderstanding of what it has to decide. It arises where there is a seriously mistaken view of the facts or an error of law concerning the scope of the decision‑maker's powers: Alexandria at [10]. In Dranichnikov v. Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26, Kirby J said that not every mistake in understanding the facts in applying the law or in reasoning to a conclusion will amount to a constructive failure to exercise jurisdiction, but it will where the mistake is essentially definitional, it amounts to a basic misunderstanding, and the flaw is so serious as to undermine the unlawfulness of the decision in question in a fundamental way: [88], applied in Alexandria at [9].

6.   Ground 5 is a failure to consider ground, which is conventional judicial review. AS [41] could also be characterised as a constructive failure to exercise jurisdiction because of the absence of information in the report on which the Panel relied concerning contamination and the incorrect assumption in the report that the development did not involve excavation and therefore contamination was irrelevant. That assumption was legally as well as factually flawed because contamination may arise from sources other than fill (e.g., asbestos in building materials) and factual errors if centrally relevant to the legal question which the consent authority must determine may amount to a constructive failure to exercise jurisdiction, a failure to take into account a relevant consideration or manifest unreasonableness. The best example is Minister for Aboriginal Affairs v. Peko‑Wallsend (1986) 162 CLR 24 which was discussed in our submissions. By adopting the Council report, the Panel clearly misunderstood the application (no excavation) and therefore did not consider contamination in the same way as the Aboriginal Land Commissioner failed to consider detriment because of a factual error concerning the location of mining prospects. There are two alternative grounds (42] and (43]. The first, a failure to satisfy itself that the land was not contaminated and the second, a failure to make enquiries as to whether it was contaminated. These are also conventional grounds.

7.   Ground 6 involves a breach of clauses 7 (2) and (3) by failing to consider a report specifying the findings of a preliminary investigation of the land for contamination. Once again, no reasons were provided for the Panel's implicit decision not to consider such a report. It does not appear that the Panel considered the application of cl. 7 (4) at all. In the absence of any reasoned consideration, where the outcome of the decision contradicts obvious facts, or is capable of explanation only on the ground of a misconception, the Court may imply that some error of law was made or irrational fact finding was undertaken: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360: "it is not necessary that you should be sure of the precise particular in which he has gone wrong". The Court should infer the error because the evidence is clear that cl. 7(2) is triggered on the facts. In any event, it was also argued that the ground should be understood as a failure to consider cl. 7(2): Applicants Submissions (90]. In Moorebank Recyclers Pty Ltd v Benedict industries Pty Ltd (2015] NSWLEC 40 Preston CJ described cl. 7 (2) as a precondition to the exercise of the power to determine a DA that involved a change of use of any of the land specified in cl. 7 (4) (46]. He treated cl. 7 (4) as objective: (49] and found on the facts before him that cl. 7 (2) was engaged (51], [108].

The Company’s submissions on Ross v Lane

81. The Company’s submissions on Ross v Lane were in the following terms:

1.   These supplementary submissions address the relevance of Ross v Lane [2022] NSWCA 235 (Ross v Lane) to Grounds 2, 3, 5 and 6 of the Further Amended Summons (FAS). They use the defined terms employed in the Respondent's Closing Submissions (RS).

2.   Ross v Lane was an appeal from the decision in Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121 (LEC Decision). The first respondent obtained development consent from the second respondent for modifications and extensions to his apartment on the top floor of a building including the construction of an additional storey (Consent). The appellant (applicant at first instance) commenced Class 4 Proceedings seeking a declaration that the Consent was invalid and consequential injunctive relief on the basis that had been a failure to consider State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65): LEC Decision at [6]-[7]. It was agreed that Part 4 of SEPP 65 and ell 50(1A) and (1AB) of the Environmental Planning and Assessment Regulation 2000 (NSW) were not applied as part of the assessment process.

3.   Three issues arose: first, whether the facts required to be established in order for SEPP 65 to apply were jurisdictional facts; second, if so, did the development consist of "the substantial redevelopment or the substantial refurbishment of an existing building" for the purpose of cl 4(1)(a)(ii); and, third, if so, whether the Court would refuse the relief sought pursuant to s 25B of the LEC Act: LEC Decision at [11]. The primary judge did not decide the first issue. His Honour proceeded on the assumption that "cl 4(1)(a)(ii) of SEPP 65 does require the determination of a jurisdictional fact": LEC Decision at [86]; see, also, [36], [87]. In relation to the second issue, the primary judge found that SEPP 65 did not apply because the subject development "cannot be regarded as 'the substantial redevelopment or the substantial refurbishment of an existing building"' for the purpose of cl 4(1)(a)(ii) of the SEPP 65: LEC Decision at [153]. Accordingly, the third issue did not arise: LEC Decision at [155].

4. On appeal, the majority held that the primary judge erred by not determining the first issue ([71]) and by determining the second issue: "the applicability of SEPP 65 was not a matter which the Court was entitled to determine for itself'': see, Basten AJA at [73]; Macfarlan JA agreeing at [1]. The majority concluded that "the application of the environmental planning instruments, including SEPP 65, in a particular case where development is permissible with consent, is a matter for consideration by the consent authority in the first instance (subject to statutory forms of review and appeal) and does not require (or permit) determination by the court'': at [100]. That is the ratio deddendi of the case. The reasoning is expressed in terms of "environmental planning instruments" generally and is not limited SEPP 65.

5.   The Majority identified (at [2]-[5], [76]-[84]) factors relevant to whether a fact is a jurisdictional fact: see, also, Reysson Pry Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; 247 LGERA 277 at [55]. By way of summary: first, it is primarily a question of statutory construction; second, regard must be had to the broader legislative framework of which the relevant section forms part; third, questions that involve straightforward questions into objective facts will be more likely to be directed toward jurisdictional facts than questions involving complex, value laden judgments; and, fourth, the consequences of finding that an issue concerns a jurisdictional fact are relevant.

Application of Ross v Lane to Grounds 2, 3, 5 and 6

6.   Ground 2: The application of cl 6.7(3) is a matter for the decision maker. Although the enquiry under cl 6. 7 (3) is ostensibly "objective" because it effectively asks whether "all ground floor premises facing the street are used for retail premises or business premises" (emphasis added), the enquiry is underpinned by evaluative judgments on questions of fact and degree because it turns on questions of characterisation. To quote Biscoe J in Australians far Sustainable Development Inc v Minister far Planning [2011] NSWLEC 33; 182 LG ERA 370 at [146](g) "the task of characterisation is first and foremost a question of fact and degree". However, unlike questions of characterisation, the question here is more readily described as a part of the process of determination, as distinct from a determination that is "extrinsic or preliminary or ancillary to the exercise of the power to grant consent'': cf, Pallas Newco at [51]. Clause 6. 7 is required to be considered under s 4.15 of the EPA Act, which is a context in which "many, if not all, of the matters referred to in the [sub] paragraphs of that section are of a clearly non-jurisdictional fact nature": Ross v Lane at [4], [94]. The inconvenience which would arise if the application of cl 6. 7 was concerned with jurisdictional facts suggests that it is matter for the consent authority: Ross v Lane at [5], [82].

7.   Ground 3: On the reasoning in Pallas Newco, which was applied in Ross v Lane at [2], [41], [78], the Respondent accepts that whether the development is for the purpose of "shop top housing" may be authoritatively determined by the Court.

8.   Ground 5: The Court may determine if the Council failed to consider cl 7(1) of SEPP 55. However, if the Court is satisfied that the issue was considered, it is not a matter for the Court to determine if the Panel made the right finding or to second guess the sufficiency of the evidence. Contrary to the Applicant's submission, there was material before the Panel regarding contamination: see, RS at [97]. To the extent there may have been any error in the finding that the Land was not contaminated, it was an error within jurisdiction. In support of Ground 5, the Applicant pleads a number of facts that it asks this Court to find (FAS at [34][38]); attacks the factual basis of Council's Assessment Report: FAS at [41](e) and (f); and, contends that Council should have found that a preliminary investigation was required: FAS at [44]. This is an attempt to dress up merits review as jurisdictional error. It was a matter for the consent authority to determine whether the Land was contaminated.

9.   Ground 6: The application of subclauses 7(2) and (3) is a matter for the consent authority: Ross v Lane at [100]. Subclauses 7(2) and (3) only apply if the proposed development would involve a change of use on any of the land specified in subclause 7(4). The enquiry under cl 7(4) is not extrinsic or preliminary or ancillary to the exercise of the power to grant consent. The consideration of SEPP 55 arises under s 4.15 of the EPA Act. It involves complex, evaluative judgments and would occasion considerable inconvenience if it were a matter to be determined authoritatively by the Court. For the reasons set out in Ross v Lane at [87]-[100], the Court is not required or permitted to determine the application of cll 7(2) and (3) for itself. By inviting this Court to determine this issue (see, FAS at [47]), the Applicant asks this Court to do the very thing that the majority in Court of Appeal has held is not permissible: see, Ross v Lane at [100]. The Applicant's submissions conceal the fact that Ground 6 first requires the Court to be satisfied that cll 7(2) and (3) apply. The fact that the application of subclauses 7(2) and (3) is not a matter that this Court may determine means Ground 6 must fail.

The Applicant’s submissions in reply on Ross v Lane

82. The Applicant’s submissions on Ross v Lane were in the following terms:

1.   In Michael Brown Pty Ltd v. Wingecarribee Council (2020) 247 LGERA 221, Basten JA (speaking for the Court) said that a provision imposing a precondition to the engagement of the authority to consent was a jurisdictional fact [24], and therefore likely not to involve any kind of evaluative judgment of the kind required to determine a DA on its merits [25]. The provision in question prevented the grant of consent unless the consent authority was satisfied that the development was compatible with the flood hazard of the land [4]. These jurisdictional preconditions are well known, and nothing in Ross v. Lane overrode their usual construction.

2. In the case of ground 2, it is a subjective jurisdictional fact, but ground 5 is not. The facts pleaded in that ground were relevant to failure to consider (misunderstanding the DA, overlooking a critical fact) and had nothing to do with the Panel's factual assessment, of which there was none. The facts pleaded at [34] - [37] of the FAS are relevant to materiality, not breach, and to the duty to make inquiries ground (what would have been discovered had an inquiry been made) - see [44]. Para [38] is relevant to [41] e. and f.

3.   Clause 7 (2) and (3) are preconditions to engagement (see AS [7]) and involve no evaluation at the outset - simply an enquiry about past use, or zoning and a decision whether or not the table is engaged and therefore a report must be considered. The consideration thereafter is undoubtedly subjective.

The decision of the Court of Appeal in El Khouri v Gemaveld Pty Ltd

Introduction

83. On 12 May 2023, Mr Salon, a solicitor employed by the Company’s legal representatives, sent an e-mail to my Associate concerning the then recent decision of the Court of Appeal in El Khouri v Gemaveld Pty Ltd [2023) NSWCA 78 (El Khouri). Mr Salon’s e-mail said:

Salon for the Second Respondent in the Lahoud v Helm Pty Ltd ‑ NSWLEC 2021/00292505 proceedings.

This is a joint communication by the parties in the proceedings.

As his Honour may be aware, the Court of Appeal has recently handed down its decision El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 which appears to the parties to be of relevance to the Lahoud v Helm proceedings in which his Honour’s decision is reserved.

In those circumstances, the second respondent writes to enquire as to if his Honour would like any supplementary submissions to be made by the parties on the El Khouri v Gemaveld decision, and if so, the parties will confer and put a proposed timetable for those submissions to his Honour.

The Applicant for his part seeks leave to make submissions on the El Khouri decision. If his Honour is minded to grant leave we will confer with the second respondent in relation to a proposed timetable for such submissions.

I confirm the solicitor for the Applicant is copied on this email.

May it please the Court.

84. On 18 May 2023, I instructed my Associate to write to the parties in the following terms:

His Honour has now been able to access and read the decision. His Honour had nearly finalised his decision before he went on leave. However, he accepts that the parties should be provided with the opportunity to make submissions on what may be its relevance in these proceedings.

However, in order not to delay the finalisation of the case unduly, he considers that the Respondent should have two weeks for submissions, followed by two weeks for the Applicant to reply.

The Company’s submissions on El Khouri

85. The Company’s submissions on El Khouri were received on 1 June 2023. These submissions were in the following terms:

1.   Since judgment in these proceedings was reserved, the NSW Court of Appeal delivered judgment in El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 (El Khouri). These submissions address the effect of El Khouri on the Applicant’s grounds of review. They adopt the terms defined in the Respondent’s previous submissions.

2.   In El Khouri, the applicant sought to quash a development consent granted by the LEC pursuant to s 34 of the LEC Act on the basis that the approved development exceeded the height restriction applicable to the land. The “principal and dispositive issue [was] one of statutory construction, namely, whether compliance with the height restriction is a jurisdictional fact which can be reviewed by this [the Court of Appeal] on the basis of evidence not before the [LEC]”: El Khouri at [2]. For the reasons given by Leeming JA (Gleeson and Adamson JJA agreeing), the Court held that compliance with a height restriction in a local environmental plan is not a jurisdictional fact (at [2], [53]). Critically, the Court went further and held that compliance with an “environmental planning instrument” is not a “jurisdictional prerequisite” to the LEC’s power to grant consent under s 34(3): El Kouri at [74]. Leeming JA concluded (at [75]):

PAGE: I agree.

293. Mr Robertson submitted that the evidence adduced from Mr Page demonstrated that the mere imposition of conditions was not sufficient to overcome any detriment that may potentially arise from contamination (if any) of the site. He said (Transcript, 4 November 2022, page 225, lines 28 to 34):

MR ROBERTSON: Mr Page, or rather the argument sought to be made from Mr Page’s evidence is that the imposition of those three conditions was sufficient to overcome any detriment that might be caused by contamination. Mr Page admitted in his evidence that that would not have protected workers unless they knew in advance of doing the work that the materials were contaminated. He admitted that it cut council or the consent authority out of the picture altogether, and, of course, it cut the other persons who might be affected by any contamination, such as the neighbour, out of the picture as well. The imposition of those conditions could only partially reverse the detriment…

Assuming Grounds 5 and 6 are established – exercise of discretion

294. As I have concluded that, if Grounds 5 and 6 were made out, consideration of relevant matters arising going to discretion would cause me not to make any orders intervening with the Company's development consent, I now turn to explain why, on the assumption these grounds are made out, such intervention is not warranted.

295. I therefore consider these grounds solely on the assumption that they are established. Although it was necessary to set out extensive extracts of the Applicant's written and oral evidence relevant to these grounds, it is appropriate to address them on this assumed basis.

296. I am satisfied that Grounds 5 and 6 are appropriate to be addressed on the basis that I assume that, as a matter of law arising from the inaccurate factual assertion made by the Council's assessing officer that there would be no excavation of the site when, as established by Mr Barry's evidence, the Planning Panel’s approval of the Company's proposed development approved excavation in the vicinity of the Timms Lane frontage at the rear of the site. I have concluded that, as a matter of discretion with respect to Grounds 5 and 6 that, on the assumption that they are established, it would not be appropriate to make any order impacting on the Company’s development consent on this assumed basis. I have reached this conclusion for the reasons that follow

297. I have earlier set out the relevant conditions from those attached by the Planning Panel to its approval where the Planning Panel made provision for what should occur if, during the course of the Company, giving effect to the approval, contamination was discovered on the site.

298. Amongst the matters outlined by Mr Robertson in his opening as to steps which the Company has now taken as part of its preparation for its new development application seeking a further consent for a development (coextensive with that which was approved by the Planning Panel and subject to the present challenge by the Applicant). These SEPP 55 based steps demonstrate that if those investigations disclose anything concerning the state of the site, which would trigger the relevant contamination conditions attaching to the present consent, that triggering will occur despite the fact that the investigation has arisen in the context of a separate, development application (but one identical to that sought to be impugned in these proceedings).

299. In this context, it is also appropriate to note that a Stage 1 Site Investigation report prepared for the Company by JK Environments dated 7 April 2022 was in evidence. In addition, a Detailed Stage 2 Site Investigation report prepared by the same environmental consultancy for the Company was also in evidence. It is appropriate, in this context, to note the terms of the relevant portion of the executive summary of the Stage 2 report. The relevant portion (Exhibit B, Tab 41, Folio 656) is in the following terms:

The primary aims of the investigation were to characterise the soil and groundwater contamination conditions. The objectives were to:

•   Assess the soil and groundwater contamination conditions via implementation of a sampling and analysis program;

•   Review and update the conceptual site model (CSM);

•   Assess the potential risks posed by contamination to the receptors identified in the CSM (Tier 1 assessment);

•   Provide a preliminary waste classification for off-site disposal of soil;

•   Assess whether the site is suitable or can be made suitable for the proposed development (from a contamination viewpoint); and

•   Assess whether further intrusive investigation and/or remediation is required.

The investigation included a review of site history and site information presented in the JKE PSI, soil sampling from six boreholes and groundwater sampling from two monitoring wells installed at the site. The site was historically used for low-density residential purposes until the 1970s, when it was redeveloped as a commercial (office) building. An underground storage tank (UST) was installed in the northern section of the site sometime during the 1970s to 1980s, and was decommissioned by filling with sand in 1997.

The DSI has not identified widespread soil contamination that was assessed to pose a risk in the context of the proposed development. However, the UST, associated infrastructure and backfill soils were identified as a potential point-source of localised contamination, and will require remediation.

300. The environmental consultants also recommended a number of matters as being appropriate to be conducted to render the site suitable for its proposed (and then approved) development. These recommendations were set out in the report on the page following the above extract from the executive summary. The recommendations were in the following terms:

Based on the findings of the OSI, JKE is of the opinion that the site can be made suitable for the proposed development. The following is recommended:

•   Prepare a remediation action plan (RAP) to address the contamination issues identified at the site. This will include an unexpected finds protocol (UFP). The RAP should include validation provisions to address the data gaps outlined in Section 8.3 of this report;

•   A hazardous building materials survey should be undertaken prior to any demolition required for alterations to the building. Following demolition (and preferably prior to removal of the hardstand), an asbestos clearance certificate should be obtained; and

•   Undertake a validation assessment documenting the remediation works.

A Tier 2 (site-specific) Human Health Risk Assessment (HHRA) may be required to adequately assess risks associated with groundwater and soil vapour impacts, depending on the validation data to be collected under the framework of the RAP.

301. Mr Page's evidence did not lead to any conclusion concerning the adequacy of condition 53 given the new studies commissioned for the Company – his evidence merely confirmed how such a triggering process would operate. Mr Page certainly did not propose that the Planning Panel should have proposed any further conditions on the Company's consent relating to the potential eventuality that any potential contamination would be encountered during construction, in a fashion that would trigger provisions of SEPP 55 in a fashion arising for consideration proposed by Grounds 5 and 6;

302. I have earlier set out the relevant portions of the Applicant's cross-examination concerning contamination as it now arises in the context of Grounds 5 and 6.

303. A fair reading of that transcript discloses that the Applicant was aware of SEPP 55 and its regulating of contamination issues. To the extent that the cross examination addressed matters of contamination which potentially arose from the Applicant's development of the adjacent site to the east, they are not matters requiring exploration for present purposes. It is sufficient to note that, in his responses to Mr Galasso's questioning concerning contamination, he had been advised by the contractors undertaking rock anchor installation work (as part of his construction activities) of the existence of the decommissioned fuel storage tank on the Company's site. It is sufficient to observe that, since early 1995, the Applicant had been aware of the fuel storage tank on the Company site and that he offered no satisfactory or credible answer as to why he did not raise any matters concerning the potential for contamination of the Company's site at any time prior to late 2021 despite his being aware of relevant potential contamination relating matters since 1995.

304. The reliability and credibility of witnesses is well known to be difficult to assess from their demeanour in the witness box and, for that reason, I am generally reluctant to draw conclusions concerning a witnesses’ reliability based on such observation. However, in this instance, as this evidence as to the timing of the revealing of contamination issues by the Applicant is of critical importance to my assessment as to whether or not I should (on the assumption that grounds 5 and 6 are made out) interfere with the Company's development consent. On that basis, it is appropriate to record my observations on his giving of his oral evidence..

305. My impression of the Applicant in the witness box is that he was being evasive; generally was not trying to respond to questioning but avoided giving answers that were not of assistance to the case which was being advanced on his behalf; and that he offered no credible explanation why he, as a professional developer who was aware of both factual matters concerning contamination he alleged arose from the Company site and of the strictures imposed by SEPP 55 at the time he lodged his letter of objection to the Council concerning the Company's development, he had not made any mention of contamination issues.

306. I am satisfied that the Applicant has offered no credible explanation whatsoever as to why he had not raised matters of potential contamination with the Council at the time he examined the Company's development application and plans and then objected to them.

307. I am also satisfied that the conclusion appropriate to be drawn from the fact that the Applicant’s affidavit and oral evidence concerning such potential as might exist for contamination on the site establishes that these matters were peculiarly within the knowledge of the Applicant.

308. In this context, it is appropriate to note, as I have earlier set out, the matters that were traversed by the Applicant in his submission of objection to the Company's proposed development did not make any reference whatsoever to potential for contamination on the site. That he chose not to do so and that, in these proceedings, issues of potential contamination of the site were not agitated on his behalf in either the Summons commencing these proceedings filed on 14 October 2021 or in the Amended Summons for which leave was given on 27 October 2021 but had to await the service on the Company and the Council of the Applicant's proposed Further Amended Summons (this being recorded as having been filed with the Court on 10 March 2022) is without adequate explanation.

309. These circumstances, whilst not going to the validity of the complaints made by the Applicant in Grounds 5 and 6, are significant for the purposes of my consideration of how the discretion available to me pursuant to s 9.46(1) of the EPA Act should be exercised on the assumption that a proper basis had been established for the validity of Grounds 5 and 6.

310. These matters are, I am satisfied, sufficient, in themselves, not to warrant any intervention in these proceedings on the assumption that Grounds 5 and 6 have been made out.

311. This conclusion is more than amply reinforced by the fact that, although the Applicant's affidavit and oral evidence on the issue of potential contamination clearly demonstrated his awareness of the various factual matters giving rise to the potential existence of such contamination since at least 1995, he remained silent on these matters until he chose to reveal his concerns through the vehicle of his Further Amended Summons and his affidavit addressing contamination matters without any adequate explanation of why he had not raised these matters earlier (despite the fact that he is an experienced property developer).

312. The failure of the Council's assessing officer in the submission in the Council's report to the Planning Panel that there was to be no excavation as part of the Company's development (and, by necessary implication, no triggering need for consideration of matters arising under the SEPP the) does not, in light of the other matters outlined above, constitute a reason to intervene with the Company’s development consent on the basis of Grounds 5 and 6.

313. On the assumption Grounds 5 and 6 were to have been established, no relief would be appropriate to be ordered.

Costs

314. As these are conventional civil litigation proceedings, to which r 42.1 of the Uniform Civil Procedure Rules 2005 applies, the presumption is that costs follow the event.

315. The “event” refers to the event of the claim and the practical result of it: Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [39]. Generally, that means an unsuccessful party can be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues: James v Surf Road Nominees Pty Ltd (No2) [2005] NSWCA 296 at [32]

316. A summary of the general principles providing guidance on departing from the general rule (of costs following the event) was set out in Sze Tu at [40] – quoting from Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]. That summary [citations omitted] was as follows:

•   Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.

•   In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument.

•   If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue

•   Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed.

•   A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter.

•   Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation.

317. Although the Applicant has succeeded (or is to have been assumed for the purposes of my consideration of matters of discretion to have succeeded in establishing three of the six grounds advanced in his attack on the Company's development consent (although, as a consequence of the exercise of discretion, I have concluded that no interventionist orders should result), the Applicant has also failed on three of the substantive grounds advanced by him. As a consequence, the overall event for the purposes of costs consideration is that the Applicant has been unsuccessful as no relief is to be ordered and his Further Amended Summons is to be dismissed.

318. I have considered whether, under all the circumstances, some apportionment of costs would be appropriate rather than making a simple “follow the event” order as provided by the UCPR – such an apportionment approach being permissible. In my consideration of this possibility, I have considered how I might exercise the costs discretion made available by s 98(1) of the Civil Procedure Act 2005 for the purpose of intervening with the conventional costs outcome given the overall result of these proceedings.

319. I have concluded that, it is appropriate to otherwise order and to undertake an apportionment of the costs based on the outcomes of each of the six grounds pressed in the Applicant's Further Amended Summons and, with respect to the single ground where I had held that the Applicant was successful in establishing a basis for potential intervention (although intervention was not appropriate), I have concluded that a limited measure of apportionment should be ordered.

320. In summary, as can be seen from the earlier detailed discussion:

• the Applicant has failed to establish any basis for upholding Grounds 1, 3 and 4;

• the Applicant has established Ground 2 in circumstances where (a) the Applicant had, in his letter of objection to the Council, specifically pressed the failure to comply with cl 6.7 of the LEP as a basis why the Company's development application could not be approved and (b) the Applicant succeeded on this ground (albeit with me declining to intervene as a matter of discretion); and,

• although the Applicant is to be assumed as succeeding in establishing Grounds 5 and 6 (for the purpose of considering what might arise from that - although not obtaining any relief concerning either of them as outcomes), the evidence given by the Applicant personally made it clear that the factual information concerning the potential validity of these grounds was peculiarly known to him rather than generally to the Council's assessing officer or to the Planning Panel and was never earlier conveyed by him to the Council or the Planning Panel.

321. I have therefore concluded that it is appropriate to apportion the costs of the proceedings to reflect the mixed nature upon which the Company has seen off the Applicant's challenges to the Company's development consent.

322. The appropriate apportionment should be that the Applicant is entitled to some limited discounting of the otherwise relevantly applicable costs outcome to reflect the circumstances of the Applicant's success on Ground 2. Given the circumstances backgrounding my assumption of the Applicant's establishing of Grounds 5 and 6 but this not having any resultant intervention outcome, I am satisfied there is no basis to provide any costs relief for the Applicant with respect to those two grounds.

323. The overall costs outcome which I am satisfied should arise in the circumstances of these proceedings is that the Applicant should pay 80% of the Company’s costs of the proceedings as agreed or assessed.

Conclusion

324. I have concluded that the Applicant has made out Ground 2 and I have also concluded that, with respect to Grounds 5 and 6, I should proceed on the basis of an assumption that these grounds have been established.

325. With respect to all three of these grounds, I have concluded that, on a proper consideration of the facts and circumstances relating to each of them, it is appropriate that I exercise the discretion given to me by s 9.46(1) of the EPA Act and, as a consequence of exercising this discretion, I have determined that it is not appropriate to make any intervention order arising from any of these three grounds with respect to the Company’s development consent.

326. As I have concluded, in addition, that the Applicant has not established Grounds 1, 3 and 4, the consequence of my overall findings is that the Applicant's Further Amended Summons must be dismissed.

Orders

327. It therefore follows that the orders of the Court are:

1. to the extent necessary, pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005, the Applicant is granted an extension of time until 14 October 2021 to commence these proceedings;

2. the Further Amended Summons is dismissed;

3. the Applicant is to pay 80% of the Second Respondent's costs of the proceedings as agreed or assessed; and

4. the exhibits are returned.

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Annexure A.pdf

Decision last updated: 02 November 2023