Lenen Pty Ltd v Tweed Shire Council

[1998] NSWLEC 138

Land and Environment Court

of New South Wales

CITATION:	Lenen Pty Ltd v. Tweed Shire Council [1998] NSWLEC 138
PARTIES:	APPLICANT Lenen Pty Ltd RESPONDENT Tweed Shire Council
FILE NUMBER(S):	10686 of 1997
CORAM:	Talbot J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 101
CASES CITED:
DATES OF HEARING:	26/08/98
DATE OF JUDGMENT:	08/28/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr M H Tobias QC Mr W Cochrane (Barrister) Mallesons Stephen Jaques Solicitors RESPONDENT Mr J J Webster (Barrister) Mr N Perram (Barrister) Halliday & Stainlay Solicitors

JUDGMENT:

1. These class 1 proceedings are an appeal against the council's deemed refusal of development application S96/135.

2. The first issue nominated by the respondent council is as follows:-

The Appeal is incompetent pursuant to the provisions of Sections 101(3) and 101(9)(a) of the Environmental Planning & Assessment Act, 1979 (the EPA Act).

3. The Court has directed that the above issue be determined as a preliminary legal question before the three week hearing on the merits commences on 28 September 1998. The Minister for Urban Affairs and Planning has intervened to appear before the Court pursuant to s 64(1) of the Land and Environment Court Act 1979 (without objection).

4. On 8 December 1983 the then Minister for Planning and Environment made a direction under s 101 of the EPA Act whereby the respondent council was directed to refer to the Secretary of the Department for determination by the Minister all "development applications for hotel, motel and refreshment rooms development" in relation to described land which included the land the subject of a development application lodged by the applicant on 1 October 1996.

5. The development application seeks development consent under s 91AB of the EPA Act for the development described in a Statement of Environmental Effects and a plan referred to as the Kingsbeach Master Plan.

6. The proposed development is described in the development application form as follows:-

Creation of 7 Management Lots and 2 Open Space Lots, relocation of Tweed Coast Road, incl. connection roads, relocation of water main. Refer to Section 1 of Statement of Environmental Effects attached.

7. The above description accords, in general terms with the description of Stage No 1 in the Statement of Environmental Effects as follows:-

* Relocate and dedicate as appropriate Tweed Coast Road

* Construct Tweed Coast Road southern intersection

* Seek consent to relocate water main

* Provide connection road to northern Tweed Coast Road section

* Create 7 management lots

* Create 2 private open space lots

8. The Statement of Environmental Effects makes reference to an objective to plan a residential and family orientated tourist development complementary to the "seaside village" character of the area. Planned components of a Seaside Village Centre are identified as including restaurants and fast food outlets. The prospect of the development of tourist hotel projects is referred to as a special feature of the regional structure plan outlined in the Statement of Environmental Effects. Reference is made to resorts and beach clubs ranging from intimate boutique accommodation of 40-60 rooms up to commercial accommodation of 200 rooms.

9. The Court accepts that the range of activities to be provided on the land when the whole of the area has been developed might include hotels, motels and refreshment rooms as defined in the Model Provisions.

10. In letters from the applicant and its solicitors to the council during October 1996, the proposal for a "Staged Consent" was described in the following terms:-

The central premise to such an application is that it is not necessary, as part of Stage 1 for the applicant to identify the precise details of the individual elements comprising the development. Rather, and in accordance with the terms of section 91AB, the applicant may elect to seek consent to a form of consent plan or "Masterplan". If such a consent is sought, then the terms of section 91AB(2) become crucial. This is because subsection (2) allows the consent authority to control all subsequent aspects of the staged development process by, in effect, requiring further development applications to be submitted for specific aspects of the development and, moreover, requiring those subsequent development applications to address particular issues, if appropriate.

...

In our view, the type of development proposed by Lenen is eminently suited to the staged development provisions of the legislation. Stage 1 of the development seeks a form of "Masterplan" consent for the general site layout, the uses proposed, their respective densities and the provision of essential infrastructure.

11. The council relies upon a description of the proposed development in a Species Impact Statement lodged in support of the development application as including residential areas, resort and hotel accommodation as being indicative of the real nature of the development for which the applicant is seeking consent.

12. The applicant on the other hand relies on explicit statements in the Statement of Environmental Effects to the extent that they make it clear that what the applicant is seeking is no more than an approval for the particular development works referred to in the development application form and the general designation of uses in accordance with the Master Plan as follows:-

This application for development consent will provide the approvals that will subsequently allow the subsequent submission of a range of applications for development consent to allow a mix residential and tourist orientated development. It is envisaged that subsequent development applications for residential and tourist accommodation will be for a variety of building forms in a range of intensities.

13. And further:-

The design guidelines have arisen during the master planning of the site but are not intended to be applicable to Stage 1. Rather, they provide a clear prescription of the nature of the proposed site development and are for subsequent development applications. These guidelines will be "built into" the development process, ensuring the sub-divisional design and documentation stage adheres to the underlying philosophy regarding the intended character of the project.

14. The foregoing explanation is sufficient to demonstrate how the council and the Minister contend on the one hand that the development application is caught by the s 101 direction, whereas the applicant on the other hand contends that it is not called in by the Minister's direction.

15. Mr Webster argues, on behalf of the council, that the result of the grant of the development application will be an approval for the uses referred to on the Master Plan and in the Statement of Environmental Effects including development referred to in the Schedule to the s 101 direction.

16. Mr Perram, who appears for the Minister, concedes that if the word `development' had not been included in the description in the Schedule, it would be arguable that the proposed development does not fall within the s 101 direction. However he agrees with the council submission that the subject development application has the development of hotels, motels or refreshment rooms at its heart and therefore falls within the direction. There is nevertheless no argument from the Minister that any specific hotel, refreshment room or motel is referred to in the development application.

17. If the development application does not fall within the ambit of the s 101 direction, then no further question arises about the identity of the consent authority.

18. Nevertheless, Mr Perram has identified two further questions which arise if the development application is subject to the direction, namely:-

1. Is the appeal competent because there cannot be a deemed refusal where time does not run for the purpose of s 96 pursuant to s 101?

2. Whether in the circumstances the council, the Minister, or any one at all, is the consent authority.

19. Mr Tobias QC, who represents the applicant, agrees with Mr Perram in respect of the appropriate questions, but differs with the views expressed by him on behalf of the Minister with regard to the answers.

20. Having regard to what he describes as the draconian effect of s 101, namely the absence of any right of appeal and the lack of time constraints on the decision making process by the Minister, Mr Tobias submits that any direction made by the Minister should be construed strictly.

21. Notwithstanding Mr Perram's protest that the Minister could be compelled to make a determination in accordance with common law principles, the Court's view is that if there are two meanings open, it is proper to construe the direction by adopting a meaning which interferes with the legal rights of the applicant to a lesser extent and produces the less hardship (see for example Metropolitan Coal Company of Sydney Ltd v Australian Coal and Shale Employees' Federation 1917 24 CLR 85 at p 99).

22. Mr Webster limits his argument to the question of whether the purpose of the development application is to obtain approval to hotel, motel and refreshment rooms uses and thus for development nominated by the Minister in the Schedule to the direction. He otherwise adopts the submissions made for the Minister.

The Class or Description of the Development Application

23. Section 101 refers to "a particular development application or a development application of a class or description of development applications" that may be the subject of a direction.

24. The subject direction is clearly one which applies to a class or description of development applications being for "hotel, motel and refreshment rooms development".

25. I agree with Mr Tobias that the direction may be construed so as to apply where a specific approval is sought for the described development, or alternatively where the only development the subject of the application is a hotel, motel or refreshment room on a specific site. Otherwise, he says, the Minister would have used an inclusive definition. However, I am not prepared to constrain the effect of the direction to exclude the prospect of including any development application which seeks approval to a multipurpose proposal that has a hotel, motel or refreshment room as a component of the development. Questions of fact and degree may arise in particular circumstances (Baulkham Hills S.C. v O'Donnell (1990) 69 LGRA 404).

26. The subject development application cannot be regarded in terms as seeking approval for any specific use of land. The Master Plan identifies seven management parcels and two open space parcels to be created by subdivision. The development is described as a staged development, the blueprint for which is the Master Plan, with further development to occur in accordance with the Master Plan by way of subsequent staged development applications. There is no reference to any particular site specific use in the Master Plan. Future land use is identified only by way of general descriptions to provide the applicant with flexibility while enabling the consent authority to have control over the future form of the development pursuant to conditions of consent which require a further development application to be submitted for specific aspects of the development.

27. The only physical works that could be implemented if consent is granted are the roadworks and other infrastructure referred to in the application form.

28. The use of the word `development' after the uses referred to in the Schedule adds nothing to the debate. The result is the same, irrespective of whether it is omitted or remains. It is otiose in the context of development applications which by definition in s 4 of the Act mean applications for consent to carry out development.

29. The development consent, if granted, will provide no more than a guide to future land use in accordance with the wide general descriptions in the Master Plan. Even if the descriptions included a hotel, motel and refreshment rooms, which they do not, the consent would not authorise the carrying out of development for those purposes.

30. I find therefore that the subject development application does not seek a consent for any item referred to in the Schedule to the s 101 direction.

31. Mr Tobias advanced an alternative argument whereby if the Court was satisfied that the development application is in the ambit of the direction, it can be read in an ambulatory form so that only that part of the application falling within the direction must be referred to the Minister and the council would remain as consent authority for the balance. Although some support for this approach might be derived from the wording of s 91AB(1)(b), which enables consent to be granted for the development for which the consent is sought except for a specified part or aspect of that development, it is not readily appealing. It may nevertheless, in the case of a particular development application, be used to avoid the consequences of a s 101 direction. The difficulty identified by Mr Perram is that s 101 deals with a category of development applications as a whole, not part, whereas s 91AB is directed at the consent. It is not necessary to finally deal with this second argument because it is advanced on behalf of the

applicant only as an alternative to the argument which has been successful.

Conclusion

32. If the development application had been caught by the s 101 direction, then either because, as Mr Perram points out, s 96 does not apply or because the council is precluded from determining the application by dint of s 101(3)(a), the appeal would have been incompetent.

33. It is expressly provided in s 101(11) that the Minister shall for the purposes of the Act or any environmental planning instrument be deemed to be the consent authority, only where the development application has been determined under s 101(8). The effect of s 101 is that once a direction operates upon a particular development application no right of appeal arises under s 97 even if technically, until consent is granted by the Minister, the council remains the consent authority.

34. In the present case, because the Court has not been persuaded that the development application the subject of the appeal does fall within the class or description in the direction, then s 101 has no application. Therefore, contrary to the submissions by the Minister and the council, the appeal is not incompetent pursuant to the provisions of s 101(3) and s 101(9)(a) of the EPA Act.

35. The exhibits may be returned.

36. The matter will be listed for further directions on a suitable date before the hearing which commences on 28 September 1998.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 9 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT.

Associate