May v Northern Beaches Council (No 2)

[2023] NSWLEC 7

Land and Environment Court

New South Wales

Medium Neutral Citation:

May v Northern Beaches Council and Anor (No 2) [2023] NSWLEC 7

Hearing dates:

13 April 2022

Date of orders:

14 February 2023

Decision date:

14 February 2023

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [140]

Catchwords:

CIVIL PROCEDURE — Applications seeking summary dismissal or strike out of proceedings — Application to file judicial review out of time — Jurisdictional error not established — Motion granted in that summons dismissed — PRACTICE AND PROCEDURE — leave granted to further amend summons clarifying civil enforcement claims

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Environmental Planning and Assessment Act 1979 (NSW), ss 4.55, 4.59, 8.7, 8.8

Environmental Planning and Assessment Regulation 2000, cll 55, 100, 124, 146

Land and Environment Court Act 1979 (NSW), s 31

Local Government Act 1993 (NSW)

Pittwater Local Environmental Plan 2014, cll 4.6, 7.1, 7.2

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 59.4, 59.10

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112

Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256; [2006] HCA 27

Blacktown City Council v Ramahi [2015] NSWLEC 74

Dennis v Australian Broadcasting Corporation [2008] NSWCA 37

Dubow v Mid-Western Regional Council [2021] NSWSC 225

Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138

F Hannan (Properties) Pty Ltd v Council of the City of Sydney [2011] NSWLEC 44

Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

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

In the matter of Brianine Pty Ltd [2022] NSWSC 203

IntrapacSkennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 83

Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213

Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180

Lucantonio v Benscrape Pty Ltd [2020] NSWWC 579

May v Northern Beaches Council [2022] NSWLEC 154

McGuirk v The University of New South Wales [2009] NSWSC 1424

Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51

Paul Ernest Simmons v Protective Commissioner of NSW [2012] NSWSC 455

Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82; [2000] HCA 57

Shaw v State of New South Wales [2012] NSWCA 102

Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405

Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337

Ugur v Attorney General NSW [2019] NSWCA 86

Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57

Category:

Procedural rulings

Parties:

Stephen May (Applicant)
Northern Beaches Council (First Respondent)
Paul Wilhelm (Second Respondent)

Representation:

Counsel:
S May, self-represented (Applicant)
J Ede, solicitor (First Respondent)
M Harker (Second Respondent)

Solicitors:
Self-represented (Applicant)
Wilshire Webb Staunton Beattie Lawyers (First Respondent)
Clyde & Co (Second Respondent)

File Number(s):

2021/00286184

Publication restriction:

Nil

Judgment

Introduction and outcome

1. Stephen May resides at 220 McCarrs Creek Road, Church Point, which is land owned by his partner, Ivana Maria May. For some time, Mr May has had concerns regarding certain development on adjacent land at 218 McCarrs Creek Road, Church Point (‘site’) owned by Paul Wilhelm. Each property is located within the Northern Beaches Council local government area.

2. By summons filed 28 January 2022 (and amended 13 April 2022), Mr May commenced proceedings against Northern Beaches Council (‘Council’) and Mr Wilhelm (collectively, ‘respondents’) seeking relief involving judicial review and civil enforcement in relation to a development consent and two subsequent modification applications granted by Council, and a construction certificate issued by a private certifier, concerning the construction of a new dwelling house at the site.

3. Before the Court are two notices of motion filed on 4 and 7 March 2022 by the respondents each seeking orders that the proceedings be dismissed, either in whole or in part pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’). In the alternative, Mr Wilhelm seeks that the proceedings against him be struck out, either in whole or in part.

4. The hearing of the respondents’ motions proceeded concurrently on 13 April 2022. Mr May appeared without legal representation; Mr J Ede, solicitor, appeared for Council, and Mr M Harker of counsel, appeared for Mr Wilhelm.

5. For the reasons that follow, with one exception, which relates to Mr May’s allegation that certain works have been undertaken not in accordance with a development consent (as modified) granted by Council or a construction certificate, I find that each of the respondents is entitled substantially to the relief sought in their respective motions and accordingly, but for granting leave to replead that one claim, that the proceedings are otherwise to be dismissed.

Background

6. Given the orders sought in the respondents’ motions, and to provide context to the detailed submissions made by each of the parties, an understanding of the salient background facts, which are largely uncontroversial, is desirable. Other facts will be dealt with in my consideration of the evidence and the submissions.

7. On 17 October 2016, Mr Wilhelm lodged a development application seeking development consent for the demolition of an existing dwelling house and the construction of a new dwelling house and swimming pool at the site (‘development application’). Mr May, for or on behalf of Ivana May, lodged an objection to the development application raising a number of concerns primarily in relation to building height, extent of excavation and privacy, which was considered by Council in an internal assessment report dated 29 September 2017.

8. On 29 September 2017, Council granted development consent to the development application subject to conditions (‘Consent’).

9. On 14 October 2017, public notice of the granting of the Consent was published purportedly pursuant to s 101 (now s 4.59) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EP&A Act’) in the Manly Daily, a local newspaper.

10. On 9 February 2018, Mr Wilhelm submitted an application to modify the Consent (‘first modification application’) which sought to increase the height of the proposed dwelling house (apparently to reduce the extent of excavation that had earlier been approved), change the roof pitch, and alter the window arrangement along the northern and southern elevations.

11. On 26 February 2018, Ivana May lodged an objection to the first modification application which referred to her earlier objection (to the development application) raising concerns including in relation to the “excessive” excavation proposed in the development application, stating that “despite my objection [to the development application] all my submissions were overlooked”, and otherwise objecting to the first modification application raising further concerns including in relation to privacy and solar access. This objection was considered by Council in an internal assessment report.

12. On 4 July 2018, Council approved the first modification application (‘First Modification’) which increased the height of the proposed dwelling house and notice of that determination was sent to Ivana May.

13. In early July 2018, Mr May indicated to Mr Wilhelm that he would be commencing proceedings in this Court in relation to the First Modification.

14. On 1 August 2018, Construction Certificate number 17/3440-1 (‘Construction Certificate’) was issued by Private Building Certifiers NSW, and Council published a notice of determination of the Construction Certificate on its website on 22 August 2018.

15. In October 2020, based on Mr May’s understanding that the height of the dwelling house being constructed was greater than that approved by Council, he indicated to Mr Wilhelm that he intended to have a “stop work order” issued if evidence of any modification of the Consent allowing the increased height was not provided to him.

16. On 7 August 2021, Mr Wilhelm submitted a second application to modify the Consent (‘second modification application’) which sought to replace the sandstone cladding that had been approved as a building material with zinc cladding. Mr May lodged an objection to the second modification application raising concerns including in relation to the reflectivity of the proposed cladding. This objection was considered by Council in an internal assessment report.

17. On 27 September 2021, Council determined under delegated authority the second modification application (‘Second Modification’) and on 29 September 2021, Council sent a notice of that determination to Mr May.

18. On 8 October 2021, Mr May commenced Class 1 proceedings in this Court purporting to appeal against the Second Modification (‘Class 1 application’). The Class 1 application names Council as the sole respondent and under the heading “DETAILS OF APPLICATION” states that the decision being appealed against is:

“Modification of development consent N0476/16 The modification was approved for the external wall. For the external cladding to be changed from Sandstone to Black zinc that will affect our amenity given the close proximity to the location of windows along our Northern Boundary.”

19. Under the heading “ORDERS SOUGHT”, the Class 1 application provides:

“1   That the approval under delegated authority by Council on the 27/09/2021 be set aside.

2   Council have failed to adequately consider the adverse impacts from this Modification. And the Concessions obtained by the applicant in the Granting of the Original DA Consent.

3   All work on site is stopped pending an independent Engineers report. Given the issues that have arisen as a result of the Construction of this Home. The Building may need to be demolished and repatriation works undertaken.

4   All works carried out that Vary from the DA approval to be removed.

5   Trees planted along the Boundary to be removed. The owner has planted more than Four trees in alignment. Resulting in the loss of views over the Northern Boundary.”

20. On 15 December 2021, in response to a notice of motion filed by Mr May on 13 December 2021, this Court (Pepper J) made orders pursuant to s 31 of the Land and Environment Court Act 1979 (NSW) (‘Court Act’) that the Class 1 application filed on 8 October 2021 “be dealt with appropriately as Class 4 Proceedings”, and requiring that Mr May file and serve: “a summons and points of claim in Class 4 setting out the grounds of challenge” and “any motion, together with supporting affidavit evidence for joinder of additional parties”.

21. On 28 January 2022, Mr May filed a summons in Class 4 of the Court’s jurisdiction naming Council as the first respondent, joining Mr Wilhelm as the second respondent, and expanding his earlier claims for relief (beyond the Second Modification noted at [19] above) to include – challenges in the nature of judicial review in relation to each of: the Consent, the First Modification, the Second Modification, and the Construction Certificate; civil enforcement and negligence claims against Mr Wilhelm; nuisance and negligence claims against Council; a claim in relation to a “loss of support” of Ivana May’s land (at 220 McCarrs Creek Road), as a result of excavation at the site; claims in relation to Council providing kerb and guttering to collect surface water; and seeking declarations in relation to the unlawful removal of asbestos by Mr Wilhelm. Mr May also sought to join the provider of an engineering certificate, the insurer of the private certifier (who granted the Construction Certificate), and Douglas Partners (the authors of two geotechnical reports considered by Council) to the proceedings. As will be seen, a number of these claims have been abandoned.

22. In correspondence exchanged between the parties from 4 to 17 February 2022, Mr Wilhelm’s solicitors expressed their view that Mr May’s proceedings were bound to fail because, first, the challenges to each of the Consent, the First Modification, and the Construction Certificate were “out of time”; second, the challenge to the Second Modification had no basis in fact or law; third, the (then) remaining claims had no factual or legal basis; and finally, the summons was vague and convoluted such that Mr Wilhelm could not, in fairness, respond to it. Mr Wilhelm’s solicitors proposed that Mr May file a notice of motion seeking an extension of time to commence his judicial review claims (a suggestion Mr May refused) and otherwise requested that he discontinue the proceedings. Council also requested that Mr May discontinue the proceedings against it.

23. Prior to hearing the respondents’ motions, I determined (in May v Northern Beaches Council [2022] NSWLEC 154) two other notices of motion filed by Mr May on 11 March and 11 April 2022. The first notice of motion sought orders, first, that the proceedings be transferred to the Supreme Court; second, that leave be granted to file an “amended statement of claim” (prior to the hearing of the respondents’ motions to summarily dismiss or strike out the proceedings); third, that a “stop work order” be issued requiring Mr Wilhelm to cease all work at the site; and fourth, that certain documents be made available to Mr May. The second notice of motion sought an order that Mr May be allowed an additional 14 days to respond to the respondents’ submissions in relation to the summary dismissal and strike out motions that are now before the Court. For present purposes, it is sufficient to note that in relation to the first motion filed 11 March 2022, I granted leave to Mr May to rely upon an amended summons filed in Court on 13 April 2022 (‘amended summons’), and the motion was otherwise withdrawn and dismissed. In relation to the second motion filed 11 April 2022, it was withdrawn and dismissed.

24. The hearing of the respondents’ motions proceeded (to the extent that Council and Mr Wilhelm relied upon their earlier evidence and submissions) in relation to the amended summons.

Mr May’s claims

25. Before considering the evidence and submissions, conscious that Mr May appears without legal representation, it is convenient to make some observations in relation to the amended summons. Without meaning any disrespect, the amended summons, comprising 40 pages in detailed narrative form, is lengthy, discordant, and legally unsophisticated. It contains factual assertions interspaced with legal submissions; extracts from legislation; various expert reports; and documents from Council’s files and records including various assessment reports.

26. Under the heading “RELIEF SOUGHT”, the amended summons provides as follows:

“The Modification 2021/0609 be declared invalid. As there was error of Jurisdictional fact.

A Declaration that the Construction certificate issued by Private Building Certifiers NSW Certificate number 17/3/4440-1 to be declared invalid.

A Declaration that Jurisdictional Errors and Planning Laws have been breached in the determining of the Initial DA determined on the 20/09/2017 and the section 96 application approved on the 4/7/2018 and 4.56 Modification approved on the 27/09/2021.

Declaration that illegal building that has not been subject to a written request to be removed.

A Stop work order to be issued until compliance is achieved with the Reports relied on by the applicant in obtaining consent.

A Declaration that owner of 218 McCarrs Creek Road control stormwater that enters the property from the uncurbed McCarrs Creek Road.

A Declaration Building height to comply with the maximum height requirement under PLEP 2014.

Grounds Pleaded in the summons

1   Ground 1 Jurisdictional Error

2 Ground 2 Failure to preform statutory duty imposed Environmental Planning and Assessment Act 1979

3   Ground 3 Failure to preform Statutory duty imposed Environmental Planning Regulation 2000

4 Ground 4 Failure to preform duty imposed Local Government Act 1993

5   Ground 5 Failure to comply with Model code of conduct

6   Ground 6 Failure by the Respondent to refer the development application to the Minister when Concurrence was Required

7   A Declaration there has been a Breach of Statutory requirements”

27. In addition, throughout the body of the amended summons under the heading “Pleadings and Particulars” there are a further 21 separate claims for declaratory relief. For brevity, and to provide some further understanding of the relief sought, I have extracted these into a separate list attached as Annexure “A” to this judgment.

28. At the commencement of the hearing of the notices of motion, having read the summons filed 28 January 2022, the amended summons filed 13 April 2022, the affidavit of Mr May filed 28 March 2022 (which was in a narrative form and contained detailed submissions, some of which related to claims no longer made in the amended summons), and before hearing from each of the respondents, I asked Mr May to explain with precision the claims he now maintains, noting that a number of the claims in the summons filed on 28 January 2022 had been abandoned.

29. Doing my best to understand Mr May’s claims and conscious of the comments made by Kirby P in Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 at 2, where, albeit in a different context, his Honour stated that in cases presented by a litigant in person, the Court must be “…specially vigilant that they perform their functions correctly, … Concealed in the lay rhetoric and inefficient presentation may be a just case”, it is apparent from Mr May’s responses (at Tcpt, 13 April 2022, pp 7(20)-21(45)) that, in summary only, Mr May maintains the following primary claims.

30. First, that before granting the Consent, Council failed to refer the development application to the relevant Minister where Mr May maintains that some form of “concurrence” was required in relation to the height of the proposed development, where it exceeded 10m; and a related claim that, in determining the First Modification concerning the raising of the floor level (and therefore height) of the proposed dwelling house, Council again failed to refer the application to the Minister, where Mr May maintains that there was an enduring obligation arising from the development application that required concurrence because the height of the proposed dwelling house then exceeded 10m.

31. Second, that Council failed to perform what Mr May maintains is its “statutory duty” under (then) cl 100(1)(j) of the Environmental Planning and Assessment Regulation 2000 (‘Regulation 2000’) to include in its notice of determination of the development application (presumably the notice provided to Mr May or Ivana May following Council’s decision to grant the Consent) that the objector (presumably Mr May and/or Ivana May) had a right to appeal from the decision to grant development consent.

32. Third, that Council committed “jurisdictional error” in granting the Consent in circumstances where Mr May maintains that the Pittwater Local Environmental Plan 2014 (‘PLEP’) required an acid sulfate soils management plan to have been prepared and considered by Council in circumstances where the watertable is likely to be lowered by 1m Australian Height Datum (‘AHD’) as a consequence of the proposed works, and an acid sulfate soils management plan had not been provided (by Mr Wilhelm) as required.

33. Fourth, that prior to granting the Consent, Council wrongly allowed Mr Wilhelm to amend the development application to change the height of the proposed dwelling house in circumstances where Mr May maintains that cl 55 of Regulation 2000 required such an application (to amend a development application) to be made in writing.

34. Fifth, that Council’s assessment of the development application was inadequate, first, because Council did not properly consider a geotechnical report submitted by Mr Wilhelm which suggested that rock sawing be utilised to excavate sandstone; and, second, because when granting the Consent (and approving engineering works) Council did not (or could not) know the ground condition when test boreholes of only 1.2m had been undertaken in relation to the proposed excavation of up to 7m.

27. Sixth, that in considering the development application and granting the Consent, Council took into account an irrelevant consideration, being that the extent of the proposed excavation was justified because an inclinator would not be required to be installed in circumstances where there was no proposal for an inclinator in the development application and, as such, that Council committed “jurisdictional error”.

28. Seventh, that Council’s internal assessment report (dated 29 September 2017) in relation to the development application, referred to the zoning of the site in the following terms, “the site is zoned INSERT under…” the PLEP, and this was an “error” because there was no “INSERT” zone.

29. Eighth, that Condition 11 of the Consent which Mr May contends required certain measures to be undertaken prior to the commencement of works to minimise soil erosion including an erosion and sediment control plan for stormwater collection (providing that stormwater be retained/collected on the site) was breached, in that the private certifier needed to be satisfied prior to the issue of the Construction Certificate of the detail and location of all intercept drains and run-off controls, and could not have been satisfied as there was no such plan available.

30. Ninth, in relation to the Second Modification, Mr May claims that his request for the installation of cladding with zero reflectivity, which was made in his objection to Mr Wilhelm’s second modification application (to modify the cladding on the southern side of the proposed dwelling house) was overlooked.

31. Certain further claims in the amended summons are noted in my summary of the respondents’ submissions and my consideration thereof later in this judgment.

Evidence

40. In support of its motion filed 7 March 2022, Council read the affidavit of its solicitor, Jonathon Ede, affirmed 7 March 2022. Mr Ede deposed to matters summarised above and exhibited detailed historical documentation which included copies of the Consent and approved plans; the notice of determination for each of the First Modification and Second Modification; a copy of the Construction Certificate; Council’s internal assessment reports relating to each of the development application, the First Modification and the Second Modification; and various correspondence exchanged between Council and Mr May.

41. In support of his motion, Mr Wilhelm read two affidavits of his solicitor, Steven Mark Lurie, affirmed 10 March 2022 and 11 April 2022. Mr Lurie deposed to correspondence and conversations between Mr Wilhelm (and later Mr Wilhelm’s solicitors) and Mr May, and to the history of the proceedings including various requests made for Mr May to apply for extensions of time to bring claims for judicial review and to discontinue the proceedings. Mr Lurie exhibited extensive material including documentation which accompanied the development application (including the statement of environmental effects and a geotechnical report dated 4 August 2016 of Douglas Partners); further reports provided to Council subsequent to the development application; various reports which accompanied the application for each of the first modification application and the second modification application; and various plans and structural drawings which were approved by the Construction Certificate (including the certification of the stormwater system that was submitted to the private certifier prior to the issue of the Construction Certificate). Mr Lurie also deposed to the history of the development undertaken at the site from September 2018 including the fact that Mr Wilhelm (and Mrs Wilhelm) had spent $1.13m on the construction of their residence at the site up until April 2022 and that the construction work was expected to reach “lock-up” stage by June 2022. Mr Lurie also annexed file notes in the form of transcripts of three directions hearings before the Court on 4 February 2022 (before Pain J), 18 February 2022 (before Pain J), and 11 March 2022 (before Pepper J).

42. Mr May read his affidavit of 28 March 2022. Although parts of the affidavit related to matters no longer in issue (such as the orders sought in Mr May’s notices of motion and claims in the summons filed 28 January 2022 that are no longer pressed), he deposed to the “notification requirements” within the legislation, including s 101 (now s 4.59) of the EP&A Act (which he states was not properly complied with by Council), recited extracts from various decided authorities regarding the “issue of valid Notification requirements”, and referred to his request for a “stop work order” to prevent “cladding [being] installed as the Residence is over the 10mtr height requirement” under the PLEP such that “[t]his triggers the need for Concurrence from the Minister”. Further, relying upon s 4.55 (previously s 96) of the EP&A Act and cl 55 of Regulation 2000, he stated that there had been no “request for variation” relating to the dwelling’s height.

43. Mr May also deposed that stormwater tanks now installed at the site are not approved and “do not meet the requirements of the legislation for stormwater tank installation guidelines”. Mr May further deposed that there has been “non-compliance”, first, with certain “conditions” of the Consent (particularly that there should be no damage as a result of the works) that Council had indicated would be included in the Consent; and, second, with a geotechnical report concerning the control and discharge of stormwater.

44. In addition to his affidavit, Mr May also made detailed oral submissions and provided a document containing his responses to the written submissions made on behalf of the respondents (which became Ex B).

Submissions

Mr Wilhelm’s position

45. Mr Wilhelm seeks summary dismissal of Mr May’s claims against him, or in the alternative, that the summons be struck out on the basis that none of Mr May’s claims against him disclose a reasonable cause of action.

46. In relation to Mr May’s claims based on judicial review, Mr Wilhelm submits, first, in relation to each of the Consent, the First Modification, and the Construction Certificate, that Mr May has no reasonable cause of action where his claims have been brought more than three years out of time; and second, in relation to the Second Modification, which is the only claim brought “within time”, that the decision of Council has not disclosed any jurisdictional error.

47. Mr Wilhelm primarily submits that Mr May requires (and has refused to seek) an extension of time to bring his claims for judicial review in relation to each of the Consent, the First Modification, and the Construction Certificate, where the limitation periods applicable to any challenge (by virtue of r 59.10 of the UCPR) lapsed on 29 December 2017, 4 October 2018, and 1 November 2018 respectively; and that the proceedings (which were effectively commenced on 8 October 2021) are incompetent in circumstances where Mr May has refused to apply for an extension of time.

48. In circumstances where the statutory limitation period in s 4.59 (formerly s 101) of the EP&A Act does not apply to the First Modification or the Construction Certificate (because neither is a development consent: Intrapac Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 83 (‘Intrapac’) at [50]), nor to the Consent (because, as Mr Wilhelm concedes, notice of the grant of the Consent was not published strictly in accordance with cl 124 of Regulation 2000 (Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349; Blacktown City Council v Ramahi [2015] NSWLEC 74 at [72]-[73] (Preston CJ of LEC)), Mr Wilhelm submits that there is no statutory limitation period under the EP&A Act applicable to either decision and, therefore, the limitation period (of three months from the date of a decision) within r 59.10 of the UCPR applies in circumstances where the exception in r 59.10(4) is not enlivened. Mr Wilhelm submits that the exemption from r 59.10 within subr (5) is not engaged in circumstances where Mr May in substance seeks that each decision be set aside: Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 at [49]-[51].

49. Mr Wilhelm submits that Mr May’s contention that r 59.10 of the UCPR does not apply to the proceedings because each decision is infected by jurisdictional error, is incorrect. Even if this were not the case, Mr Wilhelm submits that it does not assist Mr May where his challenges are incompetent and bound to fail.

50. Mr Wilhelm further submits that the following alleged errors raised in the amended summons in relation to Council’s conduct and consideration prior to the granting of the Consent are not jurisdictional: first, a failure to notify an objector of a right to appeal in circumstances where no appeal right existed; second, a typographical error in the assessment report as to the proper zone applicable to the site when the remainder of the report refers to the correct zone; third, consideration of planning justifications for excavation; fourth, a preliminary geotechnical assessment as a “breach” of planning laws; and fifth, Mr May’s disagreement with expert opinion that ground conditions were known. Further, cl 55 of Regulation 2000 has no relevance to the First Modification, as that clause only applies to the amendment of a development application: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112.

51. In relation to the Construction Certificate, Mr Wilhelm submits that Mr May’s concerns regarding non-compliance with email correspondence; alleged problems with the construction of drainage works after the Construction Certificate was issued; and unidentified non-compliance with unspecified conditions of the Consent, are not jurisdictional errors.

52. Mr Wilhelm submits that the only claim for judicial review which has been made within time (relating to the Second Modification) does not disclose any jurisdictional error where Council’s assessment report relating to the second modification application expressly dealt with Mr May’s objection, and any claim that his objection was not supported by Council constitutes merits review.

53. Mr Wilhelm also submits that an alleged “error of fact” (where the assessing officer in the assessment report relating to the Second Modification allegedly referred to the dwelling’s height as being unchanged from the original Consent) is not a jurisdictional error (Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 (‘SZNPG’) at [28]) where dwelling height is not an express constraint on the exercise of power to modify a development consent in s 4.55(1A): Intrapac at [38]. Mr Wilhelm submits that this alleged error would not cause Council’s assessment to be in error because, first, the previous approval of an increase in building height itself (the First Modification) was not a jurisdictional fact; second, Council was satisfied that the Second Modification (being only a change to external cladding) was of minimal environmental impact; and third, because a mere alleged mistaken fact is not a jurisdictional error: Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337 at [41].

54. In response to Mr May’s various claims in the amended summons based on civil enforcement, some of which overlap with the judicial review claims, Mr Wilhelm submits as follows.

55. In relation to Mr May’s claim that Council breached “Planning Laws” in not notifying an objector (himself) that they had a right of appeal from the decision to grant the Consent – Mr Wilhelm submits that an objector only has a right of “appeal” in relation to an application for designated development pursuant to s 8.8 (formerly s 98) of the EP&A Act, and any failure to state this right would not invalidate the Consent.

56. In relation to Mr May’s claim that there was a jurisdictional error in Council granting the Consent where an acid sulfate soils management plan had not been provided in accordance with the PLEP – Mr Wilhelm submits that Council had, by reference to the circumstances in which an acid sulfate soils management plan is required pursuant to cl 7.1 of the PLEP, determined that cl 7.1 was complied with on the basis of an assessment by Douglas Partners, engineering consultants, (and a separate Council-directed peer review report) which concluded that the proposed construction would not have any long-term effect on the groundwater table.

57. In relation to Mr May’s claim that cl 55 of Regulation 2000 (which relates to amendments of a development application) was not complied with – Mr Wilhelm repeats that cl 55 is irrelevant to the making of a modification application.

58. In relation to Mr May’s claim that in considering and determining the Second Modification, Council committed an “error of fact” where the internal assessment report noted that there had been no increase in building height since the development application was made, when there had been a s 96 application to increase the dwelling height by 1m – Mr Wilhelm submits that an error of fact is not of itself a jurisdictional error: SZNPG at [28].

59. In relation to Mr May’s claim that the Court should make a “declaration” that the dwelling house as now built must be modified to the maximum height permitted under the relevant planning laws – Mr Wilhelm submits that the First Modification approved the development with a height above the height standard and that cl 4.6 of the PLEP does not apply to regulate the height of a building after a consent is granted.

60. In relation to Mr May’s claim that the geotechnical report for construction was obtained after Council granted the Consent and that Council therefore issued the Consent in breach of planning laws (such that the ground conditions were unknown) and without imposing a specific condition to provide for “saw cutting” as was recommended in the geotechnical report – Mr Wilhelm submits that the submission of the report was not a precondition to the grant of the Consent.

61. In relation to Mr May’s claim that the Court should make a declaration that Mr Wilhelm has breached a condition of the Consent in relation to rock excavation, and Mr May’s submission that he requested that Council make rock sawing a condition of the Consent – Mr Wilhelm submits that there was no requirement in the Consent providing that work be carried out only by way of rock sawing. Furthermore, as the excavation is now complete, a declaration would be of no consequence and would be inappropriate: Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 at 188-189.

62. In relation to Mr May’s claim that Mr Wilhelm has failed to comply with an alleged requirement (to control surface water and run-off from behind retaining structures) set out in the geotechnical report, and his claim that the works should be ordered to comply with the stormwater requirements therein set out – Mr Wilhelm submits that the parts of the report relied upon by Mr May are recommendations rather than requirements and the non-compliance alleged by Mr May is not identified.

63. In relation to Mr May’s submission that the Construction Certificate is invalid because conditions imposed by Council via email correspondence (in relation to an alleged requirement that no damage be caused to adjoining property) were not complied with – Mr Wilhelm submits that conditions of consent cannot be imposed separately in email correspondence.

64. In relation to Mr May’s claim that the Construction Certificate is invalid or that jurisdictional error has occurred by virtue of non-compliance with various conditions – Mr Wilhelm submits that these “conditions” are not pleaded with any specificity and are bare allegations; and that, in relation to issues relating to stormwater, to the extent that Mr May contends that what has been built does not meet what he says is required, that is a matter of civil enforcement and not judicial review.

65. In relation to Mr May’s claim for a declaration that there has been a breach of the Local Government Act 1993 (NSW) (‘LG Act’) by virtue of alleged non-compliance with conditions of the Consent by Council and the private certifier – Mr Wilhelm submits that breaches of conditions of development consent granted under the EP&A Act do not give rise to any breach of the LG Act.

66. In relation to Mr May’s claim that Council committed jurisdictional error in that cl 7.2 of the PLEP was breached because the proposed development was assessed at a time when the ground conditions of the site were unknown, including because test boreholes of only 1.2m deep were undertaken when excavation was proposed to be in excess of 7m – Mr Wilhelm submits that cl 7.2(3) requires the consent authority to consider certain issues in relation to earthworks; that the expert geotechnical report submitted with the development application concluded that the geology of the site was known; and that Council had considered those matters in its internal assessment report before it granted the Consent. Further, to the extent that Mr May disagrees with the expert opinion of the geotechnical assessment, Mr Wilhelm submits that this is a matter for merits review and not a ground of judicial review.

67. In relation to Mr May’s claim that Council approved the development application under a provision (or a zone) that did not exist under the PLEP and that the Consent was therefore issued in breach of planning laws – Mr Wilhelm submits that this was a typographical error, and that the correct zones are otherwise referred to throughout Council’s assessment report.

68. In relation to Mr May’s claim that it was irrelevant for Council to consider the need to install an inclinator when determining the extent of excavation allowed because there was no proposal for an inclinator in the development application and, as such, that Council took into account an irrelevant consideration and committed jurisdictional error – Mr Wilhelm submits that there is no prohibition within the EP&A Act on the consideration of planning justifications for excavation and that this consideration was not one which was forbidden having regard to the matter, scope, and purpose of the power being exercised.

69. In relation to Mr May’s claim that, in relation to the Second Modification, Council did not consider his objection to the change to the cladding of the proposed dwelling house – Mr Wilhelm submits that there is no jurisdictional error in circumstances where Council expressly dealt with the substance of Mr May’s objection in the assessment report, and that Mr May’s contention is a matter for merits review.

70. In relation to Mr May’s claim that the Court should make a declaration that the timber fencing and retaining wall along the southern boundary must comply with the condition of the Consent regarding the ability for native wildlife to pass through the fencing – to the extent that this claim is maintained, Mr Wilhelm submits that there is no evidence that the condition has not been complied with and that the required holes (for wildlife to pass through) have been included.

71. In relation to his alternative application to have the proceedings struck out, Mr Wilhelm submits that the Court has inherent power on the basis that Mr May’s amended summons is embarrassing and oppressive; and that the judicial review claims fail to plead with specificity the grounds on which relief is sought.

72. Mr Wilhelm submits that the amended summons is “convoluted, disorganised, and ambiguous… [and] contains allegations spread across thirty pages with grounds for relief in relation to all four of the decisions, and the alleged breaches, spread throughout”; does not provide the required detail to enable Mr Wilhelm to know the case he has to meet where allegations are unspecified, bare, and provide insufficient details; is inconsistent with the requirement (per r 59.4 of the UCPR) that grounds for relief be pleaded with specificity; and therefore the summons should be struck out: McGuirk v The University of New South Wales [2009] NSWSC 1424. Although Mr May appears without legal representation, the respondents are still entitled to the proper articulation of the grounds of relief to ensure the just, quick and cheap disposition of proceedings: Dubow v Mid-Western Regional Council [2021] NSWSC 225 at [41].

Council’s position

73. Council adopts the submissions of Mr Wilhelm and submits that Mr May’s proceedings as now formulated in the amended summons do not disclose any reasonable cause of action as against Council and, as such, the amended summons should be summarily dismissed, as against it, with costs.

74. In circumstances where Mr May has not sought leave to commence proceedings out of time in respect of the Consent, the First Modification or the Construction Certificate, Council submits that the passage of time causes significant prejudice to both Council and Mr Wilhelm; and that Mr May was either directly aware, or should have become aware (by reasonable diligence), of the decisions for a significant period of time prior to the lapsing of the limitation period.

75. While Council accepts that the challenge to the Second Modification is the only decision challenged by Mr May within time, albeit commenced in the wrong class of proceedings in this Court, it submits that this challenge does not disclose a reasonable cause of action, is bound to fail, and should be summarily dismissed.

76. Council further submits that, in any event, the Court would not now grant leave to commence judicial review proceedings where, first, although the notification of the determination of the Consent in the Manly Daily on 14 October 2017 did not strictly comply with cl 124 of Regulation 2000 (in that it did not state “during ordinary office hours”), it did clearly describe the site and the development the subject of the Consent; second, Mr May was specifically notified of the determination of the First Modification by letter on 4 July 2018; and, third, Council published a notice of determination of the Construction Certificate on its website on 22 August 2018, and Mr May has not joined the certifier as a party to the proceedings. Furthermore, Council submits that there is no public interest in setting aside the decisions where the proceedings relate to Mr May’s private interest and appear to be a continuation of an ongoing dispute between neighbours.

Mr May’s position

77. As noted earlier in this judgment, in response to the orders sought in the respondents’ notices of motion and the respondents’ submissions, and in addition to his articulation of his claims during the hearing of the motions and matters in his affidavit of 28 March 2022, Mr May provided a written response (Ex B) to the written submissions prepared on behalf of Mr Wilhelm. The following summary of Mr May’s responses repeats some of the matters noted at [30]-[38] above.

78. Mr May clarifies that the relief he seeks now comprises: declarations that “Jurisdictional Errors and Planning Laws” have been breached in the “determining” of the Consent, the First Modification, and the Second Modification; a declaration that the Construction Certificate issued by Private Building Certifiers NSW is invalid; and that works he contends are the “illegal” building works be removed (not necessarily requiring that the Consent be set aside or a declaration invalidating the “initial DA” (Ex B, p 8)), (which I have assumed refers to the Consent). Mr May clarifies that he also seeks declaration that various “jurisdictional errors” and breaches of “Planning Law” (which he maintains occurred in Council’s determination of the Consent) flow through to the determinations of the First Modification and the Second Modification.

79. Mr May’s primary position is that there is no time limit to bring judicial review proceedings where there is jurisdictional error.

80. Mr May reiterates that Council allowed a variation to the height of the proposed dwelling house without (Ministerial) concurrence in that it allowed the building height to be increased by 1m in breach of the PLEP’s maximum height of 10m and points to a diagram in the material that accompanied the development application which he submits shows the “10M HEIGHT OF OFFSET”, while the statement of environmental effects that accompanied the development application stated that the proposed dwelling house would be 9.9m.

81. Mr May maintains that Council did not properly comply with (then) cl 100 of Regulation 2000 (post-determination notifications) in that Council’s correspondence to Ivana May on or about 5 October 2017 notifying the determination of the Consent did not indicate any right of appeal, and that this non-compliance (with cl 100(1)(j)) amounts to a jurisdictional error such that it either “invalidates” any reliance upon the time limitation in r 59.10, or provides a ground to seek an extension under subr (3).

82. Mr May submits that Council’s assessment of the first modification application referred to the development application as being approved with amendments, and that Council thereby committed jurisdictional error by virtue of the non-compliance with (then) cl 55(2) of Regulation 2000 in circumstances where it had not received a written request for any amendment to the development application. In these circumstances, Mr May contends that the following changes to the plans to the “original DA” are illegal works because no written request was made for the development application to accommodate them: the height increase of the dwelling house by 1m; the raising of the courtyard level outside the entry door by 1.8m; the relocation of the sewerage tank and rainwater tanks; and the raising of the pool level by 1.2m.

83. Mr May submits that the geotechnical report accompanying the development application stated that the ground conditions were unknown in circumstances where the PLEP required the submission of a geotechnical report before the grant of any development consent, and that the Consent had already been granted when a further report (by Douglas Partners dated 28 November 2017) first stated the need for saw cutting.

84. Mr May submits that Council’s internal assessment report in relation to the development application referred to the zoning of the site in the following terms, “the site is zoned INSERT under…” the PLEP, and that this “error” cannot be discarded as a typographical error.

85. Mr May submits that Council considered an “irrelevant matter”, and thereby committed jurisdictional error, when it considered that approval of up to 7m of excavation would eliminate the need for an inclinator in circumstances where an inclinator was never requested by Mr Wilhelm in his application for development consent.

86. Mr May submits that the Construction Certificate was issued in breach of cl 146(c) of Regulation 2000 (which provides that each condition of development consent must be complied with before a construction certificate may be issued in relation to building works) in circumstances where correspondence from Council shows that an erosion and sediment control plan was required and that the development was not to cause damage, and neither of those matters was complied with. Mr May maintains that Mr Wilhelm has not complied with a condition of the Consent in relation to the disposal of surface water.

87. In relation to the Second Modification, Mr May claims that his request for cladding with zero reflectivity made in his objection to Mr Wilhelm’s modification application to change the cladding on the southern side of the proposed dwelling house at the site was overlooked by Council.

88. Mr May submits that Council proceeded under an “error of fact” in circumstances where, in its consideration of the second modification application, it was stated in Council’s assessment report that there had been no increase in the height of the proposed dwelling house since the Consent was granted in circumstances where a modification application had been submitted to increase the height by 1m.

89. Mr May made submissions in relation the applicable legal principles and submits that the respondents’ applications should be “struck out” and that he should be entitled to his costs in accordance with the guidelines for self-represented litigants.

Consideration

90. Rule 13.4 of the UCPR provides:

13.4   Frivolous and vexatious proceedings

(1)   If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)   the proceedings are frivolous or vexatious, or

(b)   no reasonable cause of action is disclosed, or

(c)   the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)   The court may receive evidence on the hearing of an application for an order under subrule (1).

91. An application to strike out a pleading on the ground that it discloses no reasonable cause of action is essentially a summary dismissal application. The principles applicable to summary dismissal and strike out applications have been considered to be broadly applicable to each other and can be briefly stated as follows:

1. The power to dismiss the whole or any part of proceedings without a substantive hearing, or to strike out pleadings, is not lightly granted, and stated at its highest, should only be exercised by a court in “plain and obvious” cases where an applicant’s case is “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 (Barwick CJ); [1964] HCA 69 (‘General Steel’); Shaw v State of New South Wales [2012] NSWCA 102 at [32]; F Hannan (Properties) Pty Ltd v Council of the City of Sydney [2011] NSWLEC 44 (‘Hannan’) at [24].

2. There must be a clearly demonstrated lack of a tenable cause of action, and there must be a high degree of certainty about the ultimate outcome of the proceedings if allowed to go to trial: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]; Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256; [2006] HCA 27 at [46].

3. The case of the party resisting the application for summary dismissal must be “taken at its highest”: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [200]. The mere fact that an applicant’s prospects of success might be characterised as slim is not enough to strike out a pleading: Hannan at [24].

4. Caution should be exercised in dismissing a case summarily “where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact”: Webster v Lampard (1993) 177 CLR 598 at 603; [1993] HCA 57; General Steel at 130. It may be difficult to predict the manner in which evidence would unfold at final hearing: Hannan at [24].

5. The Court is not precluded from hearing argument, even if extensive, in determining whether or not the plaintiff’s case is untenable: General Steel at 130; Hannan at [24].

6. The purposes of the power in r 13.4 of the UCPR include to save the respondent from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law, and to protect the public interest “in not having scarce judicial resources wasted in dealing with frivolous applications”: Ugur v Attorney General NSW [2019] NSWCA 86 at [70] (White JA).

7. In addition, whether a pleading should be struck out because it is embarrassing requires consideration of whether the pleading puts the respondent properly on notice as to the real substance of the claim made against it and enables the respondent to know what case it has to meet. A pleading which is unintelligible, ambiguous or imprecise in its identification of material factual allegations, or which contains inconsistent, confusing or irrelevant allegations, is embarrassing: Lucantonio v Benscrape Pty Ltd [2020] NSWSC 579 at [118] (Ward CJ in Eq). However, there is no embarrassment if the question as to which alternative facts are correct involves complex legal or factual analysis or where relevant facts are open to different interpretations: In the matter of Brianine Pty Ltd [2022] NSWSC 203 at [29] (Williams J).

92. I have approached the motions on the basis that so far as the failure to disclose a cause of action is concerned, it is incumbent on each respondent to show that there is no real question, whether of fact or law, to be tried such that Mr May’s proceedings are so clearly untenable that they cannot succeed. However, in applying the above principles, the Court’s discretion in matters such as the present should give effect to the overriding statutory purpose set out in s 56(1) of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29] (Spigelman CJ). In this regard, I am conscious of Hammerschlag J’s words in Paul Ernest Simmons v Protective Commissioner of NSW [2012] NSWSC 455 at [62] and [64], that it ought not be sufficient that a claim meets “the bare threshold of not being certain to fail” where the claim does not have reasonable prospects of success.

93. In relation to the timing of Mr May’s commencement of the substantive proceedings on 28 January 2022 (or by the application of s 31 of the Land and Environment Court Act 1979 (NSW) (at [20] above, 8 October 2021)), and relevant to the respondents’ submissions that the judicial review challenges in relation to the Consent, the First Modification, and the Construction Certificate should be summarily dismissed because each is brought over three years “out of time”, r 59.10 of the UCPR provides a limitation period for commencing proceedings for judicial review of a decision of three months from the date of the decision, which may be extended at the Court’s discretion, 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.

94. Pursuant to r 59.10(4) and (5) of the UCPR respectively, the discretion to allow further time for the commencement of proceedings is not available where there is a statutory limitation period for commencing proceedings, or where the setting aside of a decision is not required by the proceedings. Adopting a purposive interpretation of r 59.10(5), r 59.10 does not apply to proceedings “if the grounds on which the orders are sought do not include matters that, if made out, would have the consequence that the decision is one that should be set aside” and, accordingly, reference should be made to the substantial nature of the basis upon which the orders in the proceedings are sought: Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 at [49]-[51].

95. It is appropriate at this stage to note that, in relation to the application of r 59.10(4) as at 27 September 2017, s 101 of the EP&A Act (now s 4.59) provided:

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 an accredited 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.

96. In order for the limitation period prescribed by (then) s 101 of the EP&A Act to be a “statutory limitation period” for the purposes of r 59.10(4) of the UCPR, public notice of the granting of the Consent needed to have been given in accordance with cl 124 of Regulation 2000.

97. Where public notice is not given properly, that is, in accordance with cl 124 of Regulation 2000 (which, for present purposes, appears to be conceded by Mr Wilhelm in submissions, although not by Council, because of a deficiency in the notice published in the Manly Daily (being that the notice did not include a reference to “business hours” as noted at [9] and [76] above)), (then) s 101 of the EP&A Act is of no effect, such that it does not establish a three-month limitation period from the date Council granted the Consent. In these circumstances I consider it follows that the period prescribed by r 59.10 of the UCPR applies: Blacktown City Council v Ramahi [2015] NSWLEC 74 at [72]-[73]. In passing, given the details provided in the notice published in the Manly Daily, although not determinative in the motions before me, I am not convinced that appropriate notice (in the sense of adequate compliance with cl 124 of Regulation 2000) was not given, however, given the concession by Mr Wilhelm, I have proceeded on the basis that public notice was not given.

98. The practical difference is that where public notice of a decision has been given pursuant to (then) s 101 of the EP&A Act, r 59.10 of the UCPR does not apply (pursuant to the exception in subr (4)) and any person may commence legal proceedings before the expiration of three months from the date public notice of the decision was given; compared to three months (subject to the Court’s discretion to extend time) from the date of the decision, pursuant to r 59.10.

99. With the above matters and principles in mind, I now consider the respondents' submissions in the order they have been made.

100. In relation to the judicial review claims, that is, whether there are, in effect, challenges to the validity of each of the decisions granting the Consent (on 29 September 2017); the First Modification (on 4 July 2018); and the Construction Certificate (on 1 August 2018), notwithstanding my view that the amended summons is defective in not identifying explicitly the grounds on which the relief was sought as required by r 59.4(c) of the UCPR, I consider that the exclusion in r 59.10(5) of the UCPR is not engaged.

101. For the reasons that follow, I am of the view that, in considering the substantial nature of the bases upon which Mr May seeks relief, the amended summons includes effectively four applications for the setting aside of a decision and, as such, I accept the primary submission of the respondents and find that three of these judicial review claims are out of time, having been brought more than three months after each of the decisions was made. As such, no reasonable cause of action is disclosed in relation to these discrete claims.

102. Although this finding would otherwise be determinative of three of the judicial review claims (subject to my consideration of Mr May’s “jurisdictional error” claims below), in circumstances where Mr May has chosen not to seek leave to extend time to commence proceedings in respect of the Consent, the First Modification, and/or the Construction Certificate, where leave is required as the proceedings have been brought more than three months after the respective decisions, I have given consideration to whether the Court should, on its own motion, extend the time for commencing the proceedings fixed by r 59.10(1) of the UCPR. In considering whether to extend the time under r 59.10(2), I have considered the factors set out in r 59.10(3).

103. Briefly stated, I have taken into account the interests of Mr May in challenging each of the decisions, and the fact that he has been aware of the decisions for some period of time (at least since he expressed concerns in July 2018) in circumstances where there has been continuing construction undertaken (at some considerable cost) in accordance with decisions which I consider are now sought to be challenged. I also take into account that Mr May has had (and exercised) the opportunity to make objections and submissions in relation to the decisions (at least in relation to each of the Consent and the First Modification application, in 2017 and early 2018 respectively), noting that I will consider the challenge to the Second Modification (which is not out of time) later in this judgment. Moreover, I also take into account my findings as to the likely prospects of success of the various claims, including those that may not strictly involve judicial review which I consider later in this judgment. In the circumstances, I find that it is not appropriate to exercise the discretion to extend time for commencing proceedings in relation to the Consent, the First Modification, and the Construction Certificate.

96. Apart from my findings above, to the extent that Mr May's contention is that r 59.10 of the UCPR does not apply because each decision is infected by one or more jurisdictional errors (and the possible overlap with his claims that may be considered to involve civil enforcement), and if my findings above in relation to each challenge being out of time are incorrect, doing the best I can to fully understand Mr May's claims, I have considered each “error” raised by Mr May and, for the reasons that follow, I find that the alleged “errors” raised by Mr May in relation to each of the Consent, the First Modification, and the Construction Certificate are not “jurisdictional” and, in any event, but for one aspect, that the alleged “errors” would not ground the declaratory or civil enforcement relief sought.

97. Although not determinative in regard to the essential questions presently before the Court, in considering the various alleged jurisdictional errors raised in the amended summons, and at the risk of oversimplification, I am conscious, first, that the class of what constitutes jurisdictional error continues to evolve and that it is difficult to draw a “bright line between jurisdictional error and error in the exercise of jurisdiction” (Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82; [2000] HCA 57 at [163] (Hayne J)); and, second, that non-compliance with what appears to be mandatory language in a statute is not determinative as to whether jurisdictional error has been committed: Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337 at [41], [43].

98. In relation to the suggested failure to notify an objector of a right to appeal in circumstances where no appeal right existed, I find that this claim does not raise any legal or factual error. As I understand his position, Mr May claims that the notice of determination given by Council pursuant to cl 100(1)(j) of Regulation 2000 was breached because Ivana May was not informed of a right to appeal from Council’s decision to grant the Consent. Where the legislation (ss 97 and 98 (now ss 8.7 and 8.8) of the EP&A Act) did not provide a right of appeal to an objector in the circumstances where the development application did not involve designated development, I find that this claim discloses no reasonable cause of action.

99. To the extent that Mr May relies upon what I consider to be a simple typographical or drafting error in the assessment report dated 29 September 2017 that was considered by Council in granting the Consent (being the use of the word “INSERT” as noted at [36] and [67] above) as some form of “error of fact” that he maintains is jurisdictional (and seeks a “Declaration that this approval was in breach of Planning Laws” (at amended summons, p 11)), I do not accept this submission. I do not accept that the typographical error (if it is properly described as such) means that the approval of the development application proceeded under a “Planning provision that doesn't actually exist under the [LEP]” as asserted in the amended summons (at p 6). Although it is not clear from the wording of the amended summons, to the extent that this is said to contribute to (or ground) the invalidity of the Consent and/or invite declaratory relief, I do not accept this submission particularly in circumstances where the relevant assessment report refers in a number of places, after the suggested typographical error, to the correct zoning and the analysis in the assessment report proceeds on the basis of the correct nominated zoning under the PLEP which is Zone E4 – Environmental Living. This claim discloses no reasonable cause of action, and has no prospects of success.

100. Further, to the extent that Mr May seeks relief including a declaration that “jurisdictional error occurred when consideration was given to irrelevant factors during determination” leading to the Consent (in the circumstances noted at [35] and [68] above), I do not accept that jurisdictional error can be (or has been) made out. I find that this claim discloses no reasonable cause of action in circumstances where the mere fact that comments were made in Council’s assessment report dated 29 September 2017 to the effect that the extent of the excavation would obviate a need for an inclinator (presumably in relation to the steepness of the site) where the proposal did not involve an inclinator, does not constitute justiciable error. Further, I accept the respondents’ submission that there is no prohibition within the EP&A Act on the consideration of planning justifications for excavation and that this consideration was not one that was forbidden having regard to the subject matter, scope and purpose of the power being exercised: Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [9].

101. To the extent that Mr May claims (and seeks a declaration) that there was a “breach” of planning laws (and that there was “jurisdictional error”) in the assessment of the development application leading to the Consent because the “ground conditions were unknown and in breach of the planning laws” (at amended summons, p 17), I do not accept this position. Although the amended summons pleads that the assessment undertaken in the geotechnical report of Douglas Partners of 4 August 2016 utilised “bore hole(s) to a depth of only 1.2m when the excavation proposed was in excess of 7m” amounts to jurisdictional non-compliance, it is clear from Council's assessment report of 29 September 2017 that Council had received and considered both the original Douglas Partners geotechnical report and a peer review report (Geotechnical Review, prepared by Mott MacDonald, dated 26 July 2017) of the original geotechnical report (which was obtained after concerns were raised by neighbours and before the Consent was granted). Moreover, in circumstances where Council's assessment report noted that the “peer review found that the original geotechnical report was sound and made reasonable findings”, I find that the “error” alleged was not jurisdictional and, in any event, not an error that would vitiate the Consent (in addition to my findings regarding the fact that the claim is out of time). Mr May’s claim is, at most, merits review. I find this claim discloses no reasonable cause of action.

102. In relation to Mr May’s claim of non-compliance with cl 55 of Regulation 2000 in relation to the amendment to the building height of the proposed development made prior to the granting of the Consent, I do not accept that this is properly arguable. It is clear from Council's assessment report dated 29 September 2017 which recorded that submissions received by Council “…raised concerns that the proposal breaches the 8.5m height limit” and, “[a]fter discussions with the applicant to reduce the impacts on neighbouring dwellings, amended plans were submitted that dropped the building below 8.5m”, that at the time of the grant of the Consent, the height of the proposed development was within the 8.5m height limit and “fully compliant” with the height of building development standard.

103. Moreover, in circumstances where an applicant for development consent reduces the height of the proposal (“after discussions”) and then subsequently receives a development consent incorporating that reduced height, any failure to seek “concurrence” is not a jurisdictional matter that would invalidate the Consent. In summary, apart from the attack upon the Consent being out of time, I find that this claim discloses no reasonable cause of action.

104. To the extent that the claim based on cl 55 of Regulation 2000 relates in some way to the amendments sought in the first modification application (and not the development application), I accept the submission of the respondents and find that an application for modification of a development consent is not an “amendment of a development application” and does not involve cl 55. While the amended summons is again unclear in this regard, and apart from my findings in relation to the lateness of any application for judicial review in relation to the Consent, I consider that on either of my interpretations of Mr May's claim based upon cl 55, there is no tenable cause of action. Adopting the wording referred to at [91(4)] above, while it “may be difficult to predict the manner in which the evidence will unfold at final hearing” (Hannan at [24]), having heard argument and having received evidence, I do not consider that this claim has any prospects of success.

105. In relation to Mr May’s claim concerning “Ministerial Concurrence” (being “Failure by the Respondent to refer the development application to the Minister when Concurrence was Required”) (amended summons, p 3) in circumstances where the Consent was granted for a proposed development that did not exceed any relevant development standard in the PLEP, which is confirmed by the evidence before the Court, including the approved plans (the subject of the Consent) (Ex 1R1, p 34), I find that there was no requirement for concurrence contrary to Mr May’s claim and that this claim discloses no reasonable cause of action.

106. In relation to Mr May’s claim that there was “jurisdictional error” because at the time of the grant of Consent, Council had not received an acid sulfate soils management plan in circumstances where he maintains that one was required pursuant to cl 7.1 of the PLEP (amended summons, p 28), apart from my findings above regarding the Consent, I find that this claim discloses no reasonable cause of action. This is because first, Council determined that cl 7.1 was complied with (Ex 2R1, p 167); and second, an acid sulfate soils management plan was only required for an application for development consent “under this clause” (cl 7.1(3)), and as the site was mapped as “Class 5” land, such consent was only required under cl 7.1 if “Works [are] within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land”, in circumstances where Council had before it an expert report of Douglas Partners (of 4 August 2016) that concluded, in relation to a section headed “Acid Sulfate Soils”, that the proposed development would not have any significant adverse effect on the groundwater table (Ex 2R1, p 141), an acid sulfate soils management plan was not required under cl 7.1.

107. Put simply, while it is clear that the PLEP requires a plan where the watertable is likely to be lowered (as per cl 7.1(2)), in circumstances where the expert report of Douglas Partners stated that the proposed development would not have any long-term effect on the groundwater table, I accept the submission of the respondents (at [56] above). I find that this claim, apart from my findings above, discloses no reasonable cause of action.

108. In summary, in relation to the various claims regarding the validity of the Consent, for the reasons above, and generally accepting the submissions of the respondents, I am of the view that none of the matters, either on their own or considered together, alleged to be “errors”, involve a jurisdictional fact and, in substance, such claims relate to the alleged invalidity of the Consent and as such is, in any event, time barred.

109. In relation to the First Modification, although the respondents submit that Mr May’s only ground of relief was that there was non-compliance with cl 55 of Regulation 2000, and that cl 55 has no application, Mr May in his written response to the respondents’ submissions, repeats his position that cl 55 is relevant (to his claim in relation to the First Modification) because “it referred to the initial DA N0476/16 that was approved with amendments, when there was no written request for the amendments, there was no notification of the amendments” (Ex B, p 15).

110. Although this claim is unclear, to the extent that Mr May relies upon cl 55 of Regulation 2000 in relation to the First Modification, I repeat my findings above and I accept the respondents’ submission that cl 55 is irrelevant to the consideration of the First Modification and there appears to be no pleading asserting any other error in relation to the First Modification. As will be considered later in this judgment, this also affects my findings in relation to what Mr May alleges is “illegal building”.

111. I repeat my findings at [116] above that I find that the claims in relation to judicial review of the Consent and the First Modification (if those claims are maintained) to be out of time and therefore to have no prospects of success. Even if that were not the case, I consider that the claim that there was some vitiating factor (jurisdictional or otherwise) in relation to the First Modification (based upon cl 55 of Regulation 2000) has no prospects of success and should be struck out.

112. In relation to the Construction Certificate, apart from my primary finding that a claim based upon judicial review (if it was available) was out of time, for the reasons that follow, I accept the respondents’ submission and find that none of the three matters raised by Mr May – being, first, non-compliance with “Conditions [that] were imposed by Council officer in email correspondence, that provided the conditions are complied with there should be No Damage to the adjoining property” (amended summons, p 4); second, concerns regarding problems with drainage works which have arisen after the Construction Certificate was issued; and, third, non-compliance with conditions of the Consent prior to the issue of the Construction Certificate, amount to jurisdictional errors.

113. Although it appears from Mr May’s written response that he accepts that “non-compliance with email correspondence” does not amount to jurisdictional or other error (Ex B, p 15), the amended summons (at p 4) raises non-compliance with “Conditions of the DA Consent” and states that “Due to [this] breach of statutory requirement”, the Construction Certificate “be declared invalid”. Mr May also refers the Court to the amended summons which identifies non-compliance with Condition 11 (at p 4) under the heading “Non-Compliances”. Further, the amended summons (at p 10), quotes wording from Council's assessment report of 29 September 2017 concerning the development application which noted that: “Provided suitable measures outlined in both reports are undertaken, there should be no damage to adjoining properties. Both of these reports have been added to this list of plans and documents in the consent”. The amended summons then provides (at p 10): “These Conditions weren’t complied with prior to the issue of the Construction Certificate”. The amended summons then states: “The Following Conditions contained within these reports have not been complied with being Site Drainage/ Saw Cutting”.

114. I find that Mr May’s claim elevates recommendations in expert geotechnical reports (in relation to site drainage and saw cutting) that were before Council (albeit adopted and referred to in the Consent) to being “conditions” of the Consent when they contained, at most, recommendations. Furthermore, Council’s assessment report (and the conditions imposed in the Consent) required the provision of pre and post construction dilapidation reports for neighbouring properties. Even considering Mr May’s position at its highest, and apart from the fact that the excavation was completed some significant time ago, these are not matters raising jurisdictional error in relation to the Consent, and/or the First Modification, and/or the Construction Certificate.

115. Further in relation to Mr May’s references to “Condition 11”, this condition (Ex 2R1, p 30) related to measures that were to be implemented “…to minimise soil erosion”. The amended summons pleads (at p 4) that these matters were not complied with prior to the issue of the Construction Certificate. I find that there is nothing in the wording of this condition which requires implementation of these measures before the grant of a construction certificate. Further, this condition appears in a section of the conditions (attached to the Consent) specifically headed “D. Matters to be satisfied prior to the commencement of works and maintained during the works”, in circumstances where there is a separate section headed “C. Matters to be satisfied before the issue of the Construction Certificate”. At best, this claim may be an attempt to claim that works have been undertaken not in accordance with lawful approvals – a matter I consider later in this judgment.

116. In relation to concerns regarding stormwater and/or drainage, doing the best I can to understand this aspect of the claim, this appears to be an allegation that what has been built does not meet that which Mr May considers was required and/or approved, and appears to include works undertaken not in accordance with the Construction Certificate. With some reluctance, I consider that Mr May should be given the opportunity to clarify, by repleading, this aspect (only) of his claim.

117. Despite my view that the three claims in relation to judicial review are out of time, I repeat that, even if that were not the case, the matters which have been sought to be raised in the amended summons (and expanded and explained by Mr May) in relation to conduct before the Construction Certificate, disclose no reasonable cause of action and have no prospects of success at any further hearing, and for the above reasons, I find that all claims comprising judicial review challenges in relation to the validity of each of the Consent, the First Modification, and the Construction Certificate should be dismissed.

118. Before considering the remaining claims, including the judicial review challenge to the Second Modification and what have been described in submissions as the civil enforcement claims, I note that Mr May, despite my interpretation of the amended summons, noted in his submissions that he does not seek a discrete declaration in relation to the validity of the “initial DA” which I have taken to be a reference to the Consent. He also noted that he does seek a declaration that “illegal building works” be removed (Ex B, p 8) and confirmed that the declarations sought were that “Jurisdictional Errors and Planning Laws have been breached in determining the Initial DA determined on 29/09/2017 [Consent], the section 96 application approved on 4/7/2018 [First Modification] and the 4.56 modification approved on 27/09/2021 [Second Modification]” (Ex B, p 8).

119. As I noted above, expressed in this way, I find that, he is effectively seeking the setting aside of each of the Consent, the First Modification, and the Second Modification (as well as the Construction Certificate). While there is confusion in the manner in which the various claims are pleaded, and accepting that a number of these claims are interrelated, this appears to be the only sensible interpretation of that which is sought. Even if that were not the case, apart from a claim that certain works (not fully specified) have been undertaken unlawfully (being not in accordance with the Consent (as modified)), I repeat my findings above that the claims based on judicial review, on the evidence before the Court, disclose no reasonable cause of action. Moreover, if works have not been undertaken in accordance with the Consent (and subsequent modifications) they may be found to be illegal, however, as I understand the claim, the alleged “illegality”, at least to some extent, relates to Mr May’s claim that cl 55 of Regulation 2000 was not complied with when the development application was amended. I deal with this later in this judgment.

120. The challenge to the Second Modification, which seeks a declaration of invalidity because “there was error of jurisdictional fact” (amended summons, p 1) raises three discrete grounds being, first, that Council “overlooked” Mr May’s objection; second, that there was an “error of fact” in the assessment report because it wrongly suggested (and presumably Council proceeded on this error) that there had been no change in the height of the development; and, third, that in those circumstances, the assessment that the second modification (to change the cladding) was of “minimal environmental impact”, was in error.

96. Having considered the amended summons and Mr May’s further submissions as well as the evidence now before the Court, I accept the respondents’ submission that it cannot be said that Council “overlooked” Mr May’s objection when it was the subject of specific consideration in the assessment report. This claim is merits review.

97. In relation to the alleged “error of fact” in the assessment report, for the reasons that follow, I accept the respondents’ view that this claim (as pleaded in the amended summons) either misunderstands the assessing officer’s comments, or is not, in any event, a relevant “error”.

98. The amended summons (at p 8) extracts the following wording from Council’s assessment report which considered the second modification application pursuant to s 4.55(1A)(a) of the EP&A Act as follows:

“The proposed modification works do not alter the structural characteristics of the approved dwelling and are situated entirely within the existing building footprint. All height, setback, envelope, and related built form controls remain unchanged from the original approval.”

132. The amended summons (at p 9) then provides:

“Response

Simply not correct

Jurisdictional Error

The assessment states this application has remained unchanged from the original when Council have approved a section 96 Application to increase the height from 4.2 to 5.0 and to raise the ceiling height by 200mm

Modification number 2018/0057”

133. As noted above, the respondents submit that this claim (said to be “Jurisdictional Error” at p 9 of the amended summons) is based upon an incorrect proposition because it is plain that the assessment officer was simply referring to the fact that there had been no change in the planning “controls” that were applicable at the time of the consideration of the second modification application, and so understood, the claim is without argument. Mr May responds that “The Jurisdictional Error occurred when the original DA was approved” (Ex B, p 17), and as far as I can discern, claims that at the time of Council’s consideration of the second modification application, it was (or may have been) “unaware” that the building height of the proposed development had been increased.

134. Although the claim for judicial review in relation to the Second Modification was brought in time, noting that the proceedings were commenced on 8 October 2021 (albeit in the original form of the Class 1 application as per [18]-[19] above), given the consideration in Council’s assessment report in relation to the second modification application, I find that it is clear first, that the author of the assessment report understood and addressed the fact that the (only) modification that was sought was the replacement of the external sandstone cladding with zinc cladding; second, that the assessment report contained an assessment of the issues that had been raised; and, third, the assessment report recorded satisfaction that the proposed second modification was of minimal environmental impact. The report (Ex 1R1, p 106) also included commentary in words extracted in the amended summons (and noted above) which clearly indicated that the controls had remained unchanged. Further, as noted above, the assessment report specifically addressed the submission received from Mr May and contained a recommendation that a condition of the Consent be imposed that required the use of “dark and earthy tones to minimise solar reflections to neighbouring properties”.

135. As such, in summary, first, it is clear that the objection was not “overlooked”; second, I do not consider that it is properly arguable that Council’s consideration proceeded on any mistake of fact or jurisdictional error. Mr May’s concerns are merits review. Moreover, the assessment report does not indicate that the “application remained unchanged from the original” as stated in the amended summons and, to the extent that Mr May responds that his concerns regarding the Second Modification “stem from the original application” (Ex B, p 18), I consider that this, at best, raises a concern in relation to the validity of the Consent, a matter I have dealt with earlier in this judgment.

136. Therefore, in circumstances where the second modification application related only to a change in cladding and where Council was required to form a state of satisfaction that the proposed modification was of minimal environmental impact, it is clear that it did so. I do not consider that there is any jurisdictional error and, even if that be wrong, it would at most be a mistake of fact which would not provide grounds to render the decision in relation to the Second Modification invalid.

137. In these circumstances, I consider that the claims in relation to the Second Modification disclose no reasonable cause of action.

Conclusion

138. In summary, in relation to what I consider to be, effectively, judicial review challenges to each of the Consent, the First Modification, the Construction Certificate, and the Second Modification, I find that the respondents are entitled to the relief they seek in the notices of motion on the primary basis that each of the judicial review challenges to the Consent, the First Modification, the Construction Certificate, and the Second Modification disclose no reasonable cause of action and have no reasonable prospects of success. To the extent that the amended summons otherwise raises civil enforcement claims, despite my view that Mr May has been given ample opportunity to clarify his claims, regrettably limited clarification of the claims has been afforded to the respondents or the Court. Nevertheless, to the extent that Mr May maintains a claim that some (unclearly specified) works are “illegal”, only on the basis that those works are not in accordance with the Consent (as modified) or the Construction Certificate, I will grant leave to Mr May (should he so desire) to file a further amended summons solely confined to those claims.

Costs

139. As the respondents have been largely successful on the cases advanced, it is my view, subject to hearing any argument from Mr May to the contrary, that they are primarily entitled to their costs of the motions. However, with that comment, I will reserve costs at this stage.

Orders

140. The orders of the Court are:

1. The amended summons filed 13 April 2022 be struck out.

2. Stephen May is granted leave to file a further amended summons in compliance with this judgment by 13 March 2023 (such further pleading confined solely to claims that works have been conducted at 220 McCarrs Creek Road, Church Point, not in accordance with the Consent granted 29 September 2017 (as modified) and/or the Construction Certificate dated 1 August 2018.

3. Costs are reserved.

4. The proceedings are stood over to 20 March 2023 for mention.

5. Liberty to apply on 4 days’ notice.

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Annexure A (81998, pdf)

Decision last updated: 14 February 2023