Lean Lackenby and Haywood Liverpool Pty Limited v Baulkham Hills Shire Council

[2003] NSWLEC 406

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Land and Environment Court

of New South Wales

CITATION:	Lean Lackenby & Haywood Liverpool Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 406
PARTIES:	Lean Lackenby & Haywood Liverpool Pty Limited Baulkham Hills Shire Council
FILE NUMBER(S):	11021 of 2001
CORAM:	Pain J
KEY ISSUES:	Development Application :- preliminary question of law - Class 1 appeal - whether council statute barred from challenging condition in its original development consent - validity of consent condition requiring the purchase of land by council
LEGISLATION CITED:	Environmental Planning and Assessment Act (1979) s 80A, s 94, s 96 and s 101 Land and Environment Court Act (1979) s 39(2)
CASES CITED:	MLC Properties v Camden Council (1997) 96 LGERA 52; Newbury District Council v Secretary of State for the Environment [1981] AC 578; R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598; Yadle Investments Pty Limited v RTA (1991) 72 LGRA 409
DATES OF HEARING:	30/10/03
EX TEMPORE JUDGMENT DATE :	11/04/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Ayling SC SOLICITORS: Storey and Gough RESPONDENT: Mr A. Galasso SOLICITORS: Coleman and Greig

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11021 of 2001

Pain J

4 November 2003

LEAN LACKENBY & HAYWOOD LIVERPOOL PTY LIMITED
Applicant

v

BAULKHAM HILLS SHIRE COUNCIL
Respondent

Judgment

1. The Applicant commenced Class 1 proceedings seeking a modification of the development consent granted to it by the Council on 23 October 2001 pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The Applicant seeks to modify the development consent by replacing the current condition 24 with a proposed new condition. The Council raised the following two preliminary questions of law:
1. Whether condition 24 of the development consent granted by the Baulkham Hills Shire Council on 23 October 2001 is valid.
2. Whether the proposed condition 24 the subject of the Applicant's Section 96 Application, if allowed, would constitute a valid condition of development consent.

2. The Council argued that the current condition 24 of the development consent is invalid, despite being incorporated into the Council’s own consent. The Council argues that the condition could not have been based on the contributions plan which applied at the relevant time and therefore, pursuant to s 94(11), could not be imposed. The reason for arguing the current condition is invalid is that, according to the Council, if the Court finds that the condition 24 is invalid, there can be no basis under the s 96 modification application to substitute a new condition 24. The current condition 24 makes provision for the transfer of lands to the Council as follows:

Arrangements for Transfer of Land to Council

The transfer to Council of proposed Lot 66 for overland flow/detention basin purposes. The area of land required for the detention basin including any supporting structures or access for maintenance is to be dedicated to the Council at no cost.


3. The notice of development consent is dated 23 October 2001 and was advertised by the Council on 13 November 2001 in accordance with the provisions of s 101 of the EP&A Act. The appeal in these proceedings was lodged on 13 December 2002, well after three months of the publication of the notice referred to in s 101 of the EP&A Act. The Applicant argued that s 101 applies to the development consent in this case, and therefore, that the Council cannot raise the issue of the validity of the condition of development consent, as it seeks to do in these Class 1 proceedings, because the conditions of consent must be considered as valid until declared void, applying the decision of Lloyd J in MLC Properties v Camden Council (1997) 96 LGERA 52. I agree with this submission. The Council’s argument that this was essentially a technicality and was cured by the commencement of Class 4 proceedings does not overcome the substantial hurdle faced by the Council in this case in relation to the operation of s 101.

4. Accordingly, the only basis on which the Council can raise this issue would be if the Hickman principle applied so that the s 101 privative clause has no effect in these circumstances. The Hickman principle was enunciated by Dixon J in R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598 who stated:
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.


5. Essentially, if the consent condition demonstrated a manifest jurisdictional error on its face then, drawing on the decision of Stein J in Yadle Investments Pty Limited v Roads & Traffic Authority of NSW (1991) 72 LGRA 409, there would be an argument open that the Hickman principle applies to a privative clause such as s 101.

6. I do not consider that condition 24 demonstrates such a manifest jurisdictional error that the Hickman principle applies in this case. Section 94(1)(a) of the EP&A Act specifically provides that the consent authority may grant consent to an application with a condition requiring the dedication of land free of cost. Condition 24 appears, on its face, to fall within the parameters of s 94(1)(a), suggesting that there is no jurisdictional error.

7. I should note that the contributions plan made by the Council dated August 2001, which the parties agree applies to this development, specifies under the dedication of land as follows:
Council will generally not accept the dedication of land (identified for public purposes under this plan) to offset the required monetary contribution. Rather the developer will be required to pay the full contribution relating to land acquisition. The value of land can then be negotiated separately between the applicant and Council, and a value formally agreed upon prior to payment.


8. As the Applicant argued, the same contributions plan also identified lot 66 for acquisition for public open space. Nor does the wording set out above rule out the possibility that the land identified for public open space would be dedicated under the contributions plan. I therefore agree with the Applicant that there is no jurisdictional error in condition 24 such as would give rise to the application of the Hickman principle. Accordingly this issue cannot be raised by the Council in this case.

9. If I am wrong and condition 24 can be challenged after applying the Hickman principle, it does not follow automatically that the new condition 24 proposed cannot be pursued by the Applicant because this Court lacks jurisdiction. Even if I had decided this question in favour of the Council and found that condition 24 was invalid, this would not be conclusive of the Court’s jurisdiction in relation to the Applicant’s s 96 application. The Court’s power to modify development consents under s 96 is broadly defined, particularly when considered in relation to s 94(12) of the EP&A Act which, presumably, would also apply. The fact that condition 24 is invalid would not prevent the Applicant from amending its s 96 modification application and seeking a new condition in precisely the same terms provided that the Applicant no longer describes it as a modified condition 24. I consider that such a s 96 application could be considered in this Court. Accordingly, the Council is unsuccessful in relation to issue 1.

10. The proposed new condition 24 is as follows,
The applicant is to enter forthwith after registration of the plan of subdivision into negotiations with Council for the sale by the registered proprietor and purchase by Council of Lot 66 at the market value of that allotment determined in accordance with the definition of "market value" set forth in section 56 of the Land Acquisition (Just Terms Compensation) Act 1991. If within three months of such negotiation a price has not been agreed upon between the registered proprietor and Council, the parties may agree to a further period of time for negotiations. If agreement is reached, Council will purchase the land without delay. In the event that agreement is not reached within three months or within such further period as may be agreed as aforesaid, Council will promptly acquire Lot 66 by compulsory process for the purpose of open space or drainage or both pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991.

11. Despite the suggestion in the Applicant’s submission that this section imposes duties on the Applicant because it requires the Applicant to enter into negotiations, it is abundantly clear that the aim of this new proposed condition 24 is to impose a responsibility on the Council to acquire lot 66 at an agreed price or by compulsory process. The Applicant argued that this condition was not imposed on the basis of any power under s 94 of the EP&A Act, but rather, was able to be imposed under s 80A of the EP&A Act because it concerned a planning issue in that it arose by virtue of public interest considerations as provided for in s 79C of the EP&A Act. The Applicant submitted that the proposed condition satisfies the Newbury test, as promulgated in Newbury District Council v Secretary of State for the Environment [1981] AC 578, in that it:
(1) is for a planning purpose;
(2) fairly and reasonably relates to the development; and
(3) is not so unreasonable that no consent authority would have imposed it.


12. The situation arose, according to the Applicant, because the land which would be acquired if the new condition 24 was implemented was the same land considered in the s 94 contributions plan as intended for public acquisition, and in relation to which condition 32 had been imposed. Condition 32 requires the Applicant to pay a contribution which contribution includes an allowance for the payment of the land. The Applicant also stressed the reference in the proposed condition 24 to the Land Acquisitions (Just Terms) Compensation Act (1991) was simply to ensure that there was a mechanism to enable the parties to proceed with the acquisition in the event of there being no agreement reached between the parties as to the price.

13. The Applicant is correct in pointing out that the power to acquire land is not provided for under the Land Acquisition ( Just Terms) Compensation Act (1991) per se, but rather, that that Act provides a mechanism for acquisition procedures. In this respect, the Council’s submissions were wrong in that these stated that the power to acquire land is contained in the Land Acquisition (Just Terms) Act. Of greater relevance is the fact that, as the Council correctly submitted, the EP&A Act contains no power to enable the acquisition of land by the Council. The only relevant provision could be s 94(1)(a) of the EP&A Act, which provision concerns the dedication of land free of cost. The proposed new condition 24 provides for the compulsory acquisition by the Council at an agreed price or the market value under the compulsory acquisition process. The Council’s power to acquire land is, in fact, identified in s 186 of the Local Government Act (1993). I agree with the Council that, as there is no power in the EP&A Act to enable the acquisition of land, there can be no basis on which the amended condition 24 could be imposed by this Court under s 80A of the EP&A Act. Although the Applicant was at pains to stress that the condition was not imposed pursuant to s 94, but rather, to enable the Council to perform its planning functions, I do not accept the characterisation of this condition in that way. I do not consider that this proposed condition is for a planning purpose satisfying the Newbury test.

14. I agree with the Council’s submission that s 39(2) of the Land and Environment Court Act (1979), which affords to this Court the powers of the Council in determining an appeal, would not enable the Court to be seized of jurisdiction to impose the conditions sought by the Applicant in the proposed condition 24. I accept the Council’s submission that this issue goes to the jurisdiction of the Court to consider the proposed condition 24 as a s 96 modification application. It is not, as the Applicant urged, a matter of whether that condition is unreasonable or not to be determined on the merits.

15. Accordingly, in relation to question 2 I find in the Council’s favour and consider that the proposed condition 24, if allowed, would not constitute a valid condition of development consent able to be made by this Court.

16. In conclusion I answer the two questions of law as follows:
(i) Condition 24 of the development consent granted by the Council on 23 October 2001 is valid.
(ii) The proposed condition 24 of the Applicant's s 96 application does not constitute a valid condition of development consent.

Orders
17. The Court makes the following orders:
1. The exhibits may be returned.
2. The question of costs is reserved.
3. Matter listed for callover before the Registrar on 18 November 2003.