McMillan v Taylor

[2023] NSWCA 183

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McMillan v Taylor [2023] NSWCA 183

Hearing dates:

28 July 2023

Date of orders:

9 August 2023

Decision date:

09 August 2023

Before:

Payne JA at [1];
Kirk JA at [2];
Basten AJA at [9]

Decision:

(1)   Dismiss the summons for review filed 28 February 2023.

(2)   Order that the applicants pay the respondents’ costs in this Court.

Catchwords:

JUDICIAL REVIEW – class 1 decision of Land and Environment Court – application for review by non-party – procedural unfairness – failure to consider merit of objections – whether duty to consider terminating conciliation conference to allow Court to determine appeal on merits – jurisdictional constraint on power of Court to make agreed orders

ENVIRONMENT AND PLANNING – refusal of development application – class 1 appeal to Land and Environment Court – mandatory conciliation conference – agreement to grant of consent on terms and conditions – Court to make orders to give effect to agreed decision if “one that the Court could have made in the proper exercise of its functions”: Land and Environment Court Act 1979 (NSW), s 34(3) – whether Court required to consider merits of decision

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5

Civil Procedure Act 2005 (NSW), Pt 6

Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 4.15, 4.16, 8.7, 8.8, 8.14

Land and Environment Court Act 1979, ss 5, 17, 34, 34AA

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; 233 AGERA 170

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

Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319; [1930] HCA 52

Campbell Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 96

Campbell Taylor v Council of the Municipality of Woollahra (No 2) [2022] NSWLEC 106

El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78

Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; 159 LGERA 361

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379

The Queen v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163; [1984] HCA 9

Thomson Australian Holdings Pty Ltd v TradePractices Commission (1981) 148 CLR 150; [1981] HCA 48

Category:

Principal judgment

Parties:

Julie-Anne McMillan (First Applicant)
Frances Ezra (Second Applicant)
Jack Ezra (Third Applicant)
Michael Hammond (Fourth Applicant)
Lisa Stephens (Fifth Applicant)
Campbell Taylor (First Respondent)
Sarah Curtis (Second Respondent)
Land and Environment Court of NSW (Third Respondent)
Council of the Municipality of Woollahra (Fourth Respondent)

Representation:

Counsel:
P Tomasetti SC / D Robertson (Applicants)
T F Robertson SC / R White (First and Second Respondents)

Solicitors:
Colin Biggers & Paisley Lawyers (Applicants)
Project Lawyers (First and Second Respondents)

File Number(s):

2023/00067343

Publication restriction:

N/A

 Decision under review 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 1

Citation:

[2022] NSWLEC 1658

Date of Decision:

29 November 2022

Before:

Espinosa C

File Number(s):

2022/44261

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondents (the owners) in this proceeding are the owners of a property in Vaucluse, Sydney, who sought development approval to demolish an existing dwelling and to erect a new dwelling with one storey at the front and three stories at the rear, a swimming pool and a sauna. Development consent was refused by the Woollahra Municipal Council (the Council) and the owners appealed to the Land and Environment Court. Following a mandatory conciliation conference, the owners and the Council reached agreement and the Court gave effect to the agreement by an order granting consent to the proposal. Five neighbours, who had lodged objections to the proposed development, sought judicial review of the Court’s order.

The proceeding in the Land and Environment Court commenced at the site of the proposed development on 9 June 2022. The hearing was conducted by Commissioner Espinosa. Although they were not parties to the proceeding, the neighbours, with their experts and lawyers, were present and were able to explain their objections to the proposal to the Commissioner. The following day the conciliation conference commenced with only the parties, that is the owners and the Council, present. An in-principle agreement was reached, followed by further negotiations, and the preparation of terms and conditions which were to form the basis of consent orders. The neighbours were unhappy with the outcome, but, not being parties to the proceeding, they had no right of appeal in the Land and Environment Court. They sought to challenge the outcome by way of judicial review, pursuant to s 69 of the Supreme Court Act1970 (NSW).

In disposing of the proceedings to reflect the agreement reached between the parties the Commissioner was obliged to give effect to the agreement, so long as the decision “was one that the Court could have made in the proper exercise of its functions”: Land and Environment Court Act 1979 (NSW) (Court Act), s 34(3).

The grounds of review raised the following issues, namely whether the Commissioner:

1. failed to consider terminating the conciliation conference;

2. denied the applicants procedural fairness by not addressing their concerns;

3. failed to take into account an amendment to the local environmental plan;

4. granted a consent which was legally uncertain.

The Court (Basten AJA, Payne JA and Kirk JA agreeing) dismissed the summons for review, holding:

As to terminating the conciliation conference:

1. Section 34AA(3) of the Court Act conferred power on the Commissioner to terminate the conciliation conference, thus qualifying the mandatory nature of the process, but imposed no duty to terminate or consider terminating the conciliation conference. In circumstances where the applicants conceded that the circumstances did not give rise to a duty to terminate, it is neither necessary nor appropriate to explore the circumstances in which the power to terminate under s 34AA(3) might or should be exercised. There would need to be unusual circumstances which would require the Commissioner to terminate without a request from a party: [29]–[31].

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 applied

1. In any event the factual premise of the ground was not established. The Commissioner was aware that the applicants had written to the Council seeking termination, in which circumstance it should not be inferred that the Commissioner did not consider the possibility of termination: [32].

As to procedural fairness:

1. The High Court has held that reference to “legitimate expectations”, as an element of procedural fairness, should be eschewed: [35]. In this case, the applicants subjective beliefs were irrelevant: [42].

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 applied; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6 considered

1. Procedural fairness requires that a person who may be adversely affected by a decision should have an opportunity to be heard. The content of the obligation depends on the statutory context. In the present circumstances, the statutory context includes the objective of providing “increased opportunity for community participation in environmental planning and assessment”. That purpose was effected by giving the applicants notice of the development proposal, an opportunity to make submissions to the Council and an opportunity to explain their objections at the on-site inspection: [37]–[39].

Environmental Planning and Assessment Act 1979 (NSW), ss 1.3(j);

Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; 159 LGERA 361 applied

1. Procedural fairness is an obligation owed by the court to the parties, as is the obligation to consider material before the court. The applicants raised no case that these obligations were breached, except to the extent that they challenged the Commissioner’s understanding of her function under s 34(3) of the Court Act: [50].

2. The constraint under s 34(3) of the Court Act that the agreed decision must be “one that the Court could have made in the proper exercise of its functions” engages a consideration of any jurisdictional constraints on the power of the Court to make the order. It reflects the general law principle that parties cannot confer jurisdiction on a court or tribunal by consent. A Commissioner presiding over a conciliation process is not required to make an independent determination on the merits. Nor does reference to the “proper exercise of its functions” have that consequence: [4]-[6] (Kirk JA); [62]-[65]; [67]-[80].

Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319; [1930] HCA 52; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48 referred to; Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; 233 LGERA 170; AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 followed; El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 explained

Failing to take into account an amendment to the local environmental plan

1. Although the Commissioner did not refer to an amendment made to cl 6.2 of the Woollahra Local Environmental Plan 2014, which had application, it merely introduced matters for evaluative consideration by a consent authority, and not a jurisdictional constraint. In any event, the Commissioner referred to the substantive issues of structural integrity and groundwater: [85].

Granting consent which was legally uncertain

1. The factual premise for this ground was not made good. In any event, while a consent to a significantly different set of works from those the subject of the development application might be invalid, the claim of inconsistency between a condition of the consent and the plans, as to the location of a stormwater absorption trench failed to engage that criterion: [88].

JUDGMENT

1. PAYNE JA: I agree with Basten AJA.

2. KIRK JA: I agree with the judgment of Basten AJA, and add the following observations with respect to construction of s 34(3) of the Land and Environment Court Act 1979 (NSW). That provision imposes a duty on the Commissioner in question to dispose (in writing) of the proceedings in accordance with the terms of a decision agreed between the parties or their representatives, so long as the decision is one “that the Court could have made in the proper exercise of its functions”.

3. The applicants contended that the proper exercise of functions required the Commissioner to consider, in particular, the considerations set out in s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW). Some support for the applicants’ construction of the limitation in s 34(3) can be found in the word “proper”. That word could be construed as invoking the converse of the type of concept identified, for example, in s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which speaks of “an improper exercise of the power”. That notion is then defined in s 5(2) of that Act to encompass a range of legal (and generally jurisdictional) errors such as taking an irrelevant consideration into account or failing to take a relevant consideration into account. In the statutory context here, it is reasonably open to argue that “the proper exercise of its functions” would require the Commissioner to consider mandatory relevant considerations that would apply if the Court was itself determining the matter in dispute.

4. However, the force of that textual point is outweighed by purposive and contextual considerations, as addressed by Basten AJA at [57]-[65] below. The construction adopted does not mean that the word “proper” is rendered superfluous. Rather, the words “could have made” and “proper exercise of its functions” in the parenthetical condition are construed together as meaning that the Commissioner can only dispose of the proceedings in accordance with the agreed terms if there are no jurisdictional constraints on the power of the Court which would preclude an order of that kind being made.

5. The applicants’ argument to the contrary failed to take account of the clear distinction drawn in s 34 between presiding over a conciliation conference and conducting a hearing to dispose of the matter. The roles are different. The notion of “conciliation” is one long familiar to Australian law. It involves “the coming together of the parties for the discussion of questions with a view to amicable settlement”: Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319; [1930] HCA 52 per Isaacs CJ at 358, quoting an 1894 Royal Commission report. That process stands in contrast to resolving a dispute by imposing a non-consensual decision: note The Queen v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 176 per Brennan and Deane JJ; [1984] HCA 9.

6. Here, when presiding over a conciliation conference, the Commissioner is seeking to bring the parties together to reach their own agreed outcome. The agreed outcome is the product of the parties’ decision, as facilitated by the Commissioner; it is not the Commissioner’s decision. In contrast, when conducting a hearing the Commissioner is moving to make an independent determination on the merits of the application.

7. The applicants argued that if the Commissioner was not required to take account of, for example, those considerations specified in s 4.15 then protection of the environment would be undermined, to the detriment of the community and in a way that the Parliament would not have intended. Section 34 is addressed to proceedings pending in the Court’s Class 1, 2 and 3 jurisdiction, which is considerably broader than determining disputed development applications. In any event, that argument fails to take account of the fact that in the sorts of proceedings addressed by s 34 there will typically be a governmental respondent (here the Woollahra Council) which will have generally already made its own decision the subject of challenge. That respondent should take account of the relevant statutory imperatives and competing interests in deciding whether or not to settle the proceedings on agreed terms. The broader community interest is not left unrepresented.

8. To require the Commissioner to undertake an assessment of whether the agreed decision is one which should be made would require the Commissioner to undertake some kind of merits determination, despite the legislative distinction between conciliation and disposition after a hearing. Moreover, the applicants’ construction is impractical for, as explained by Basten AJA at [63], that exercise would be required in a context where commonly, under the legislative scheme, no evidence will be before the Commissioner. And the construction undermines the evident purpose of seeking an efficient resolution of the proceedings, saving the resources of the parties and the Court. The applicants’ construction should not be accepted.

9. BASTEN AJA: On 29 November 2022, Commissioner Espinosa in the Land and Environment Court granted development consent for a residential property development in Vaucluse. ^[1] The proceeding in this court seeks review of that decision. The five applicants, who own neighbouring properties, had lodged objections to the development application made by the first and second respondents (“the owners”) to the Council of the Municipality of Woollahra (“the Council”).

   1. Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 1658 (Taylor).

10. On 3 March 2022 the Council, being the consent authority, refused consent for the development proposal. On 15 February 2022 the owners had lodged a Class 1 appeal in the Land and Environment Court, presumably based on a deemed refusal. ^[2] That appeal was the subject of a mandatory conciliation conference; the hearing commenced with an on-site inspection conducted by Commissioner Espinosa. On 9 June 2022, the applicants, with their lawyers and experts, attended the on-site inspection and explained their objections. On 10 June the on-site hearing continued and became a conciliation conference in private session attended only by the parties. Heads of agreement were signed by the Council and the owners.

    2. Curiously, amongst the voluminous documentation filed in this Court, there appears to be no copy of the Application initiating the appeal to the Land and Environment Court.

11. The conciliation conference continued intermittently over several months until, on 17 November 2022, the terms of a consent determination were agreed between the owners and the Council. The Commissioner accepted that the determination was one the Court could have made and accordingly granted consent by an order of the Court.

12. The applicants were dissatisfied with the determination but, not being parties to the proceedings between the owners and the Council, had no right of appeal. They sought to challenge the decision and court orders by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW). For the reasons set out below, the application for judicial review must be dismissed with costs.

Scope of review application

Jurisdiction

13. Had this proceeding been an appeal by a party, the applicants would have required leave from the Court. It is anomalous that a non-party, proceeding by way of judicial review, can challenge a decision of a superior court,^[3] albeit of limited jurisdiction, as of right. The anomaly is, perhaps, lessened by the fact that this Court might, in the exercise of its discretion, refuse relief. However, that possibility does not arise because the owners did not seek to have the proceedings dismissed on discretionary grounds.

    3. Land and Environment Court Act 1979, s 5(1).

14. There is potentially a question as to the scope of the available grounds of review. As they appeared in the summons, the applicants’ grounds alleged both jurisdictional error and error of law on the face of the record. The owners responded that the applicants were limited to allegations of jurisdictional error because, by implication, the statutory scheme for Class 1 proceedings under the Land and Environment Court Act 1979 (NSW) (“Court Act”) was inconsistent with a right to review for error of law on the face of the record. The owners relied, by way of analogy, on the reasoning of this Court and the High Court with respect to review of decisions of adjudicators under the Building and Construction Industry Security of Payment Act 1999 (NSW), referring to the Probuild litigation. ^[4] Although there was a persuasive argument in favour of that conclusion, the issue need not be determined in this case as the applicants did not press error of law on the face of the record, stating that each ground of review involved jurisdictional error. ^[5]

    4. Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379.

    5. Applicants’ reply, 21 July 2023, par 13.

Evidence

15. One reason for seeking to rely upon jurisdictional error may have been that the evidence would not be limited to the handful of documents which might constitute the “record”, and by the need to identify error in the reasons of the Commissioner. However, it did not follow that the material considered by the parties to the conciliation conference, or that presented by the applicants as objectors, was relevant and admissible.

16. One ground of review was procedural unfairness on the part of the Commissioner (ground 2). In support of that ground, each applicant relied upon an affidavit setting out his or her subjective expectations as to what would occur in the course of the conciliation process, and the adverse impacts of the proposed development on their respective properties. They also tendered extensive evidence as to the merits of their objections. However, an allegation of procedural unfairness does not allow the tender of evidence about such matters. For reasons which will be explained below, such evidence was irrelevant and inadmissible.

17. The other grounds (grounds 1, 3 and 5 – ground 4 was not pressed ^[6] ) concerned the scope of the Commissioner’s function, which was determined by the proper construction of the Court Act. Even on the applicants’ case, the expert evidence sought to be relied on was irrelevant.

    6. CA Tcpt, 28 July 2023, p 51(7).

18. It is troubling that significant expense must have been incurred in the preparation of such evidence in circumstances where the responsible legal advisers should have known it was not necessary. The failure of legal advisers to exercise constraint in presenting evidence on judicial review proceedings, thus contravening the overarching principles set out in Pt 6 of the Civil Procedure Act 2005 (NSW), has been the subject of adverse comment in earlier judgments. Ultimately the practice may only cease when cost assessors refuse to allow a legal practice to recover the costs of obtaining and presenting the evidence. The observations of Leeming and Simpson JJA (with my agreement) in Insurance Australia Ltd t/a NRMA Insurance v Milton,^[7] albeit in a different statutory context, should be borne in mind.

    7. [2016] NSWCA 156 at [61]-[70].

19. The parties agreed that rulings on admissibility could await this judgment. Those rulings appear later in these reasons.

Nature of proceedings in Land and Environment Court

20. It is not necessary to describe in detail the proposed development, or the objections raised by the applicants. Suffice it to say that the owners sought to demolish a dwelling house in Olphert Avenue, Vaucluse, and construct in its place a new structure with one storey at the front and three stories to the rear where the land fell away. The proposal included a swimming pool and a sauna.

21. An appeal from a refusal of development consent engages the Class 1 jurisdiction of the Land and Environment Court. ^[8] Section 34 of the Court Act provides for the Court to arrange a conciliation conference between the parties in such proceedings. The section further provides:

    8. Court Act, s 17(d), being an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (“Planning Act”).

34   Conciliation conferences

…

(2)   A conciliation conference is to be presided over by a single Commissioner.

(3)   If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—

(a)   must dispose of the proceedings in accordance with the decision, and

(b)   must set out in writing the terms of the decision.

…

(8)   The decision of the Commissioner under subsection (3) … is taken to be the decision of the Court.

…

(11)   Subject to subsections (10) and (12)—

(a)   evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and

(b)   a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.

(12)   Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document.

22. Since amendments made in 2010, in certain circumstances the power to arrange a conciliation conference has become an obligation. Thus, s 34AA provides:

34AA   Mandatory conciliation and arbitration

(1) This section applies to the following proceedings pending in Class 1 of the Court’s jurisdiction relating to appeals, objections and applications under section 8.7 or 8.9 of the Environmental Planning and Assessment Act 1979—

(a)   proceedings concerning development applications, or modifications to development consents, for—

(i)   development for the purposes of detached single dwellings and dual occupancies (including subdivisions), or alterations or additions to such dwellings or dual occupancies,

…

(2) Section 34 applies to the proceedings with the following modifications—

(a)   the Court must arrange a conciliation conference between the parties and their representatives with or without their consent,

Note—

The Commissioner has the discretion to determine the place (including an on-site hearing) fixed for the conciliation conference.

(b) if no agreement of a kind referred to in section 34(3) is reached, the Commissioner who presides over the conciliation conference must terminate the conciliation conference and, subject to this section, dispose of the proceedings—

(i)   following a hearing held forthwith, or

(ii)   if the parties consent, on the basis of what has occurred at the conciliation conference.

(3)   The Court or the Commissioner may at any time, if the Court or Commissioner thinks it appropriate in the circumstances of the case, determine that proceedings are not to be dealt with or are not to continue to be dealt with under subsection (2). A determination may be made on the motion of the Court or Commissioner or on application by the parties.

(4)   If the Court or Commissioner determines that proceedings are not to be dealt with or are not to continue to be dealt with under subsection (2), the proceedings are to be dealt with under section 34C.

23. Three matters arise from these provisions. First, this being a development for the purposes of a detached single dwelling, s 34AA was engaged. Secondly, s 34 was modified so as to impose an obligation to arrange a conciliation conference. Thirdly, if no agreement were reached, s 34 was further modified, but because an agreement was reached, the function of the Commissioner conducting the conciliation conference remained that identified in s 34(3).

24. The effect of s 34(3), in a case where agreement is reached between the parties, is to impose on the Commissioner an obligation to dispose of the proceedings in accordance with the agreement, so long as the decision constituted by the agreement is a decision that the Court “could have made in the proper exercise of its functions”. The chapeau to subs (3) thus creates a contingent obligation. The question was as to the scope of the enquiry to be undertaken by the Commissioner. Indeed, the scope of the enquiry is the dispositive issue in the case, although it was not identified as such in any ground of review. It is convenient to commence by explaining why that is so.

Issues on review

25. Each of the grounds of review was encapsulated in a concise statement, followed by particulars indicating the key steps in the reasoning underlying the ground. Thus, ground 1 was followed by eleven particulars. However, grounds 1 and 2 were interrelated and it is convenient to set each out (without the accompanying particulars):

“(1) The decision-maker failed to satisfy herself of whether it was appropriate in the circumstances for the Court to determine that the proceedings should not be dealt with under s 34AA(3) of the [Court Act].

(2)   The applicants were denied procedural fairness in that they legitimately expected that the Land and Environment Court would hear their objections and take them into account in determining the appeal before the Court.”

26. There is a superficial attraction in the applicants’ complaints. They rely on the following propositions. First, because they were not parties to the proceedings, the only way in which they could raise their objections to the grant of consent was to attend and speak and present documents at the on-site inspection. Secondly, because they were not parties to the proceeding, they could not participate in the conciliation conference. Thirdly, they had sought to be joined as parties, as to the first three applicants, on 31 May 2022, and as to all five applicants, on 5 August 2022. Each application was refused. Fourthly, if the owners and the Council reached an agreement in the conciliation conference, their objections would not be considered by the Court. Fifthly, in order to avoid that outcome, it would be necessary for the conciliation conference to be terminated before it reached an agreement.

27. Despite the superficial attraction, this reasoning is fundamentally flawed. If objectors were joined to such proceedings, as parties they would have a power to veto any agreement. ^[9] That would not only subvert the purpose of a mandatory conciliation conference, but would undermine the statutory scheme whereby only objectors to designated developments have a right to appeal against a grant of consent. ^[10] The absence of a right of intervention on an appeal from a refusal is consistent with the absence of a right to appeal a grant. Although ground 1 was formulated as a challenge to a failure of the Commissioner to consider terminating the conciliation conference, the underlying purpose was to have the conference terminated so that the Court would be the decision-maker and would consider the merits of their objections. Indeed, that would have been the immediate effect of their joinder as parties.

    9. See AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 at [17] (Meagher and Leeming JJA).

    10. Planning Act, s 8.8(2)

Ground 1 – considering terminating conciliation conference

28. The applicants accepted that s 34AA(3) does not, in its terms, impose a duty. Rather, they submitted that the duty arises in particular circumstances, but struggled to identify the circumstances. Further, they submitted that the relevant duty was not to make an order to terminate the conference, but only to consider doing so. While conceding that the circumstances did not give rise to a duty to terminate, they submitted that had the Commissioner considered terminating the conciliation conference, she might have done so.

29. These submissions failed to engage with the statutory context. The purpose of subs (3) is to provide a degree of flexibility with respect to the obligation under subs (2) to hold a conciliation conference. It is neither necessary nor appropriate to explore the circumstances in which the power to terminate might or should be exercised: it is sufficient to note four matters.

30. First, the power would usually be invoked by a party, no doubt in circumstances where agreement seemed beyond reach. A party which did not make such an application could not be heard to complain of a failure to terminate. As the High Court explained in the Macedonian Orthodox Church case,^[11] in relation to a challenge to judicial advice given to a trustee, “when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.” Neither party made such an application and neither complained of the failure to terminate. Significant time (partly caused by factors outside their control) and resources were devoted by the parties to reaching an agreement.

    11. Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

31. Secondly, if neither party sought to terminate the process, it would be an exceptional step for a commissioner to exercise that power on his or her own motion. Such circumstances might arise, for example, if the commissioner suspected improper payments had been made leading to a collusive outcome. No such suggestion is made in this case. The applicants demonstrated no occasion for the Commissioner to consider exercising the power on her own motion.

32. Thirdly, the Commissioner in fact knew that the applicants wished the conciliation conference to be terminated because they had written to the Council seeking termination and the Council had forwarded the communication (as it had done with all communications from the applicants) to the Commissioner. In those circumstances, the owners submitted that, as a matter of fact, the applicants had not established that the Commissioner did not consider the possibility of termination. That factual response to the ground should be accepted.

33. Fourthly, the challenge assumed that the applicants’ views had not been taken into account in the course of the mediation, but would be taken into account if the Commissioner were required to resolve the issues. The assumption was not correct, as will be noted below.

Ground 2: procedural unfairness

Legal principles

34. There were two limbs to the applicants’ case with respect to breach of procedural fairness, namely, (i) disappointment of the applicants’ legitimate expectations that their evidence and submissions would be taken into account on the merits of the case, and (ii) failure to address their evidence and submissions on the merits.

35. The High Court has said on numerous occasions that reference to “legitimate expectations”, as an element of procedural fairness, should be eschewed. In Minister for Immigration and Border Protection v WZARH ^[12] the Court unanimously rejected the Minister’s submission that a visa applicant whose case had been heard by one officer and decided by another, had not been denied procedural fairness. Referring to earlier judgments in the Court, Kiefel, Bell and Keane JJ stated:

“28   The use of the concept of ‘legitimate expectation’ as the criterion of an entitlement to procedural fairness in administrative law has been described in this Court as ‘apt to mislead’, ‘unsatisfactory’ and ‘superfluous and confusing’. In Lam, Hayne J observed that the concept ‘poses more questions than it answers’, such as ‘[w]hat is meant by 'legitimate'?’ and ‘[i]s 'expectation' a reference to some subjective state of mind or to a legally required standard of behaviour?’ and ‘whose state of mind is relevant?’ and ‘[h]ow is it established?’. Hayne J concluded that ‘reference to expectations, legitimate or not, is unhelpful.

29   More recently, in Plaintiff S10/2011 v Minister for Immigration and Citizenship, Gummow, Hayne, Crennan and Bell JJ referred to the discussion of the concept by four members of the Court in Lam, and said that:

‘the phrase “legitimate expectation” when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded.’” [Footnotes omitted.]

12. (2015) 256 CLR 326; [2015] HCA 40.

36. Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam ^[13] that “[t]here are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness”. As further explained by Gageler and Gordon JJ in WZARH:

“60   Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.^.

61   That is to highlight one of the confusions that can be introduced when the concept of ‘legitimate expectation’ is used as a basis for determining the content of procedural fairness. By focussing on the opportunity expected, or legitimately to have been expected, the concept can distract from the true inquiry into the opportunity that a reasonable administrator ought fairly to have given. The former is relevant only in so far as it bears on the latter. As Gleeson CJ put it in Lam:

‘[T]he creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.’” [Footnotes omitted.]

13. (2003) 214 CLR 1; [2003] HCA 6 at [25].

37. Procedural fairness requires that a person who may be adversely affected by a decision should have an opportunity to be heard. The content of the duty is dependent upon the statutory context in which it arises. The present context is, in part, derived from the object in s 1.3(j) of the Planning Act “to provide increased opportunity for community participation in environmental planning and assessment”. That purpose was effected by giving the applicants notice of the development proposal and an opportunity to make submissions to the Council, as the relevant consent authority. The applicants availed themselves of that opportunity. Consent was refused by the Council. When the owners appealed to the Court, the applicants were accorded a further opportunity to explain their objections at the outset of the hearing of the proceeding, being the on-site visit on 9 June 2022. They availed themselves of that opportunity. The statutory scheme did not provide for further opportunities.

38. As explained by the Chief Judge of the Land and Environment Court in Morrison Design Partnership Pty Ltd v North Sydney Council,^[14] that purpose has limits:

“51   Community consultation and public participation should not be viewed as being adversarial. The community and affected persons have no entitlement to be an adversary to the applicant for development consent in a contest as to whether or not development consent should be granted.

52   Community consultation and public participation under the [Planning Act] are not intended to give the community or affected persons who object to development any entitlement to veto development. The planning scheme established by the [Planning Act] vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination.

53   A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission.

54   The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings.”

14. [2007] NSWLEC 802; 159 LGERA 361.

39. Court proceedings, subject to statutory provision to the contrary, are conducted by the parties; the applicants were not parties. There is no general law right of a non-party to be heard or otherwise participate in a case in a court proceeding.

Basis of ground 2

40. The gravamen of the applicants’ complaint was not that they were not given opportunities to present their objections, but that their objections were not considered. The applicants’ case is fairly illustrated by the following extract from their written submissions: ^[15]

“Commissioner Espinosa heard the applicants’ objections and those of their legal representatives and experts, and inspected their properties, leading them to believe she was taking their submissions into account in determining the development application.

In the second joinder decision, Duggan J stated that one reason why the applicants did not need to be joined as parties to the Class 1 proceedings was because they ‘had the opportunity for extensive participation in the hearing process before the Court’, which included being able to ‘address the Commissioner at the hearing and take the Commissioner on the site inspection to areas of particular concern’, and ‘providing written expert reports and having their experts address the Commissioner on site’ …. But in fact, they enjoyed no real participation at all. Everything they said was falling, for the time being at least, on deaf ears.”

15. Applicants’ written submissions, 5 May 2023, par 46(c) and (d).

41. Those submissions focused entirely upon the subjective expectations of the applicants, arising from the conduct of proceedings in the Court. However, that approach was in substance a distraction from the real issue, which required a focus upon the nature of the proceedings in the Land and Environment Court and the scope of the opportunities to present objections. In substance the applicants sought to be treated as parties, despite the failure of their joinder applications.

42. There was an aspect of the applicants’ case which suggested that their “legitimate expectations” had been created or confirmed by representations made by the Court. Thus, particular (a) of ground 2 stated:

“They expected that their objections would be heard and considered by Commissioner Espinosa as they were told in the decision of Duggan J (Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 1658) that their objections would be treated accordingly.”

It was then alleged that they had incurred significant costs in obtaining legal and expert assistance to pursue their objections.

43. In the first joinder judgment,^[16] Duggan J, after indicating that the joinder application should be dismissed, stated:

“16   To the extent the Interveners remain of the view that issues raised by them are important to the merit consideration, the issues that were not embraced by the Council can be raised before the Commissioner in the same manner through the submission process without the need to be joined. Further, the Court will take a site inspection of the Development Land and the Interveners' premises in the presence of the parties and the Interveners. At that stage, the Court will have the opportunity to hear from the Interveners as to the particular concerns they raise as to the impacts upon their amenity and the issues relating to the DA more generally.

17   In addition, the Court will have, as did the Council, the detailed written objections to which it will have regard in the determination of the DA. To that extent, the issues raised by the objectors can be satisfactorily raised.”

16. Campbell Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 96 (31 May 2022).

44. Apart from dismissing the joinder application, Duggan J also gave directions for the further conduct of the matter, which included an opportunity for the applicants to file further written submissions. The directions also included steps to be taken prior to “the conciliation conference and hearing”.

45. There is no doubt that these statements and orders reflected an expectation that the applicants would have an opportunity to present their objections at the on-site inspection which in fact took place, continued for the better part of the day, and preceded the conciliation conference.

46. The second joinder application (made by all five applicants) was heard and determined on 5 August 2022. ^[17] By way of background, the judge noted:

“7   I am advised that the component of the hearing, where the neighbours were submitting to the Commissioner and the Commissioner took a view[,] … took a good part of the first day of the hearing. Subsequent to the public component of the hearing, the parties moved into conciliation.

…

9   With the provision of those amended plans, I am further advised that the parties have now come to an agreement and will be requesting that the Court move on the agreement which incorporates the provisions of the exhibit H plans together with conditions of consent.

10   The Intervenors now wish to be joined in the proceedings so that they may participate further in the proceedings and, from the evidence of Mr Neil, the Intervenors propose to call evidence and make submissions supporting a refusal of the application rather an approval either by agreement or by the Court.”

17. Campbell Taylor v Council of the Municipality of Woollahra (No 2) [2022] NSWLEC 106.

47. By that stage it appeared to be common ground that an agreement had been reached and was being implemented by formulating appropriate terms for a development consent. The judge made statements to the effect that the applicants had had an opportunity “for extensive participation in the hearing process” and had been represented by senior counsel who made submissions “in relation to the concerns [in] relation to legal impediments”. ^[18]

    18. Taylor (No 2) at [21] and [22].

48. There was nothing in this material which might have given the applicants any expectation that, once agreement had been reached, the Commissioner would conduct a hearing otherwise than for the purpose of satisfying herself as to the contingency in s 34(3). If the applicants had some particular understanding as to the scope of the inquiry to be conducted by the Commissioner to satisfy herself under s 34(3), that was a question of statutory construction as to which the applicants’ expectations were irrelevant.

Ground 2 - conclusions

49. Unless they enjoyed a statutory right for their objections to be treated in a particular way, the applicants could not assert jurisdictional error on the part of the Commissioner in failing to address their objections.

50. In court proceedings, procedural fairness is an obligation owed by the court to the parties, as is the obligation to consider material before the court. The applicants raised no case that these obligations were breached, except to the extent that they challenged the Commissioner’s understanding of her function under s 34(3). Accordingly, it is necessary to turn to the scope of that provision, which is also fundamental to the applicants’ claims under grounds 3 and 5.

Role of Commissioner

Identification of issue

51. Under s 34(3) of the Court Act, there are two conditions precedent to the engagement of the power and obligation of the Commissioner to dispose of the proceedings in accordance with the decision of the parties, namely that (i) an agreement has been reached between the parties as to the terms of a decision, and (ii) the decision is one “that the Court could have made in the proper exercise of its functions”. There was no doubt that agreement had been reached between the owners and the Council (the parties) and that the Commissioner was correct to accept the satisfaction of that condition. The dispute focused on whether the decision was one that the Court “could have made”. That language is apt to cover jurisdictional constraints on the power of the Court dealing with an appeal from the refusal of a development application. So much has been stated by this Court in earlier authorities and was not challenged.

52. Further, it was not in dispute that there were statutory constraints on the power of the Court to grant consent to a development application. These included that (i) the development was not prohibited development; (ii) the development was permissible with consent in accordance with the zoning of the land; (iii) the applicant had the consent of the owner of the land; and (iv) the development did not contravene a requirement of, for example, a development control plan. Each of the cases in this Court to which reference will be made shortly dealt with such circumstances.

53. The applicants sought to expand the factors to be addressed. They submitted that the matters for consideration in determining a development application set out in s 4.15(1) of the Planning Act had to be considered by the Commissioner in determining whether the decision of the parties was one which the Court could have made. In effect, that required the Commissioner to have regard herself to the relevant planning controls, many of which require evaluative judgment. For example, s 4.15(1) requires the consent authority to have regard to “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality” (par(b)), “the suitability of the site for the development” (par (c)), “any submissions made in accordance with this Act or the regulations” (par (d)) and “the public interest” (par (e)).

54. Although the Court is not a “consent authority”, in determining a Class 1 appeal from the refusal of a development application, it has the “functions and discretions” of a consent authority. ^[19] Accordingly, the applicant submitted, the Commissioner could not be satisfied that the Court could have made the decision reached by the parties unless it undertook the evaluative exercise required under s 4.15(1).

    19. Planning Act, s 8.14(1).

55. The applicants accepted that the Commissioner did not have to make a determination of the outcome of the evaluative exercise, but stated that she had to have regard to all the relevant material to which the Court would have had regard in carrying out a proper exercise of its functions.

56. In addressing the remaining grounds, it will be appropriate to consider the submissions by the owners that the Commissioner did in fact have regard to the matters about which the specific grounds complain. However, it is convenient to address first the issue of principle as to whether that step was required.

A constructional choice

57. As a matter of statutory construction, the applicants’ reading of s 34(3) may be available. By way of analogy, a court conducting an appeal limited to a question of law, or a judicial review of a decision, may not review for errors of fact, except to the extent to which the ultimate finding is said to be legally unreasonable. In rejecting a claim of legal unreasonableness, a court may well say that the factual conclusion was “open” to the decision-maker or was one which “could have been made” in the proper exercise of the decision-maker’s function.

58. The alternative understanding is that the Commissioner’s role is limited to ensuring that the decision was one which did not exceed the jurisdictional limits on the Court’s power to make an order. In that sense, it reflected a general law principle that parties cannot confer jurisdiction on a statutory authority by consent. Thus, in Thomson Australian Holdings Pty Ltd v Trade Practices Commission ^[20] the High Court stated:

“The parties by consent cannot confer power upon the Court to make orders which the Court lacks power to make. As we have seen, the relevant jurisdiction of the Court in relation to the granting of an injunction is limited to the hearing and determination of actions in which application is made for the making of orders under s 80(1) [of the Trade Practices Act 1974 (Cth)] restraining a person from engaging in conduct of a specified kind. The orders made (which were the orders sought) restrain the defendants from engaging in conduct that does not necessarily constitute a contravention of Pt IV …. The orders therefore lack the essential feature which distinguishes conduct amounting to a contravention of Pt IV from conduct which does not amount to such a contravention.”

20. (1981) 148 CLR 150 at 163 (Gibbs CJ, Stephen, Mason and Wilson JJ); [1981] HCA 48.

59. Given that there is a constructional choice to be made, the resolution turns on an understanding of the purpose of the words in parenthesis, read in their statutory and procedural context. There was discussion in the course of argument as to whether the use of the word “proper” in relation to the Court’s functions supported a broader view of the exercise required of the Commissioner. There is no doubt that the words in parenthesis should be read as a whole, but there is nothing to suggest that the words following “a decision that the Court could have made” are either restrictive or expansive. If they were absent, they would be implied; their effect is neutral.

60. First, although it is sometimes said that the distinction between jurisdictional error and non-jurisdictional error is obscure and difficult to apply, in some circumstances, its operation is beyond doubt. Thus, as illustrated by the recent discussion in El Khouri v Gemaveld Pty Ltd,^[21] there is a distinction between a factual pre-condition to the exercise of a power which may be resolved by the decision-maker and one (known as a jurisdictional fact) which can authoritatively be determined only by a court exercising its supervisory jurisdiction. In El Khouri, the question was whether the development exceeded a height restriction applicable to the land. As explained by Leeming JA, the issue before the Court was one of statutory construction, namely “whether compliance with the height restriction is a jurisdictional fact which can be reviewed by this Court on the basis of evidence not before the Land and Environment Court”. ^[22] (The Court held it was not.)

    21. [2023] NSWCA 78.

    22. El Khouri at [2].

61. Where there is a question as to whether the owner of land has consented to the development being carried out on that land, the issue is jurisdictional, as found by this Court in Al Maha Pty Ltd v Huajun Investments Pty Ltd. ^[23] However, the Court did not decide whether the factual issue of consent was for the trial court or the reviewing court to determine.

    23. [2018] NSWCA 245; 233 LGERA 170.

62. Secondly, it is clear from the text that the issue, as to which the Commissioner must be satisfied, is that the decision “could” have been made by the Court, not that it “would” or “should” have been made by the Court. This language is consistent with the Court having no obligation to assess the evaluative matters which would be required to be addressed if there were a full hearing.

63. Thirdly, where there is an agreement to a particular outcome, following a conciliation conference, the procedural context is important. Thus, at no stage will the Commissioner have undertaken an assessment of the evidence and, indeed, the parties may not have tendered evidence, called witnesses or sought to resolve conflicts by cross-examination. If evidence has been tendered, the parties will not have addressed the Commissioner as to how the evidence should be understood, or its effect. In those circumstances, the suggestion that the Commissioner is required to carry out the evaluative exercise by taking into account those matters which the Court would have been required to take into account had the matter proceeded to a hearing, is implausible. There is no apparent purpose in requiring the Commissioner to consider on a hypothetical basis how the Court “could have” disposed of the proceedings had that been necessary.

64. Fourthly, where a court asks whether a particular finding or outcome was “open” to a decision-maker, the assumption is that evidence has been tendered and submissions have been made. The court will often have reasons for the ultimate decision. However, in the circumstances where the Commissioner has no knowledge of the evidence (because it has not been tendered), has not heard any submissions, and where the parties are not required to reach a state of satisfaction as to a particular fact, the Commissioner cannot sensibly ask whether it would be “open” to the Court to make the order agreed by the parties. Again, the broader exercise put forward by the applicants is implausible as a matter of statutory construction.

65. For these reasons, the preferred construction of the words in parenthesis in s 34(3) is that they impose on the Commissioner an obligation to be satisfied that there are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement. That is, the language of s 34(3) gives effect to the general law principle and does not impose some broader obligation on the Commissioner.

Consideration in authorities

66. Before rejecting the applicants’ submissions as to the issue of statutory construction, it is necessary to ask whether decisions in this Court are inconsistent with the approach preferred above.

67. As has been noted, in Al Maha the invalidity of the development consent which resulted from the order of the Land and Environment Court was established because the development encroached on land owned by Al Maha, and no consent had been forthcoming from it. A second ground, which did not need to be resolved, was identified in the following terms:

“12   Ground 2 raised a separate issue, namely that, although the development application provided for the construction of permanent access at the rear of the building, allowing egress and ingress to and from Hilts Road, the plans of the development did not show how access to the basement car park levels was to be achieved, with the result that the proposed development was incompletely identified and the terms of the consent were therefore uncertain. The grant of consent to a deficient application was described as irrational or legally unreasonable.”

68. It was noted that this ground did not invoke a breach of s 34(3), but the issue was addressed in these terms:

“16 If a decision of the Land and Environment Court could be set aside or declared invalid by this Court, it is not ‘a decision that the Court could have made in the proper exercise of its functions’. Nor would it make sense to read s 34(3) as implicitly authorising such a decision. If the development application lacked essential elements, the deficiencies could render a consent one which could not have been granted in the proper exercise of the Court’s functions. However, Al Maha framed its ground as a challenge based on the legal unreasonableness of the consent. It is not necessary to determine whether this was an appropriate formulation of the ground, nor whether the deficiencies in the plans were such as to allow them to be characterised in this way. Al Maha succeeds on other grounds.”

69. Preston CJ of LEC in Al Maha, after noting that the Planning Act conferred on the Court the functions and discretions of the consent authority, stated:

“76 A ‘decision that the Court could have made in the proper exercise of its functions’ under … s 4.16(1) of the EPA Act is one which the Court, exercising the functions of the consent authority, has jurisdiction to make.”

70. Further, in dealing with the scope of the obligation on the Commissioner to give reasons for making orders pursuant to s 34(3), the Chief Judge stated:

“202 The content and detail of the reasons that will need to be given depends on the particular decision in respect of which there is an obligation to give reasons. For the particular obligation to give reasons that the decision is one that the Court could make in the proper exercise of its functions under s 34(3) of the Court Act, the content of the reasons will be limited by reference to that particular check on jurisdiction and will not extend to the overall decision to dispose of the proceedings in accordance with the parties’ decision. The detail of the reasons can be brief, identifying any jurisdictional prerequisite to the exercise of the function and indicating why the prerequisite is satisfied and the decision is one that the Court could have made in the proper exercise of its functions.”

71. That reasoning in Al Maha is consistent with the approach preferred above.

72. A second case, chronologically, is AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces. ^[24] This Court heard an appeal from a judge in the Land and Environment Court joining the Hunter Thoroughbred Breeders Association Inc to a Class 1 proceeding brought by AQC Dartbrook challenging a decision of the Minister to refuse to modify an earlier development consent to allow for the expansion of the applicant’s coal mine. The application for joinder was made after AQC Dartbrook and the Minister had reached an agreement following a conciliation conference. The joint reasons of Meagher and Leeming JJA observed:

“9   At that point, the only issue for the Court is whether the decision to which the parties have agreed is one which the Court could have made in the proper exercise of its jurisdiction.

10   It is trite that a court must always be satisfied that it has jurisdiction before exercising jurisdiction in a matter. Further, a court must always be satisfied before making an order that there is power to do so. An example may be seen in Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4 at [42]. The fact that the parties agree as to jurisdiction or power does not avoid the need for the Court to be satisfied, and, significantly for present purposes, the parties’ agreement can mean that the Court may not receive the benefit of opposing submissions on the point. Where the question of jurisdiction or power is straightforward, nothing much turns on that. Difficulties may arise in cases where the position is not straightforward.”

24. (2021) 105 NSWLR 152; [2021] NSWCA 112.

73. In relation to the power under s 34(3) and the condition imposed by the words in parenthesis, the joint reasons stated:

“16 Secondly, the statutory scheme reflected in s 34 is one which encourages the parties to participate in good faith to settle their dispute. If agreement is reached, then the Court’s role is very significantly circumscribed: the only issue is whether the resultant decision is one which could have been made in the proper exercise of the Court’s functions.”

74. Finally in the line of authorities, the applicants relied upon the judgment of this Court in El Khouri, which dealt with orders made following a conciliation conference, with respect to the development of a residential property. The complaint by the objector in that case was that the development exceeded a height restriction applicable to the land. The principal issue was whether the operation of the height restriction was a matter to be determined in the Land and Environment Court or whether it constituted a jurisdictional restriction which could be relied upon by an objector demonstrating in this Court, in the exercise of its supervisory jurisdiction, that the prohibition had been contravened. The Court held that the restriction did not involve a jurisdictional fact to be determined on the evidence in this Court. That reasoning turned on the nature of the restriction: however, the applicant had contended that a different result might ensue depending on whether the Land and Environment Court had conducted an appeal on the merits, or had dealt with the matter by way of orders following an agreement in a conciliation conference. The distinction was rejected. ^[25] In the course of rejecting that submission Leeming JA made observations about the operation of s 34(3) in the following passages:

“52   However, the only issue for the Commissioner was whether the decision to which Gemaveld and the Council had agreed during the conciliation conference was one which could have been made by the Land and Environment Court in the proper exercise of its functions. That involves a notional inquiry. But it involves the same considerations, and the same powers, as if there had been a hearing by that Court in the exercise of Class 1 of its jurisdiction, and that in turn involves the same powers and functions of the consent authority, including ss 4.15 and 4.16. In order for the Commissioner to determine whether the decision to which the parties had reached agreement was one which ‘the Court could have made in the proper exercise of its functions’ within the meaning of s 34(3), it was necessary to identify the powers and functions of the Court determining an appeal from the refusal of Gemaveld’s application under s 8.7 of the Environmental Planning and Assessment Act, which included at least by reason of s 8.14 ‘all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal’, and that picked up the obligations to have regard to the matters in s 4.15(1) and to exercise the power in s 4.16(1).

…

74 For those reasons, there is no material difference for the purposes of jurisdictional facts, between a development consent granted ‘on the merits’ whether by the consent authority or by the Land and Environment Court after hearing an appeal, and a development consent granted under s 34(3) following a successful conciliation conference. In both cases, environmental planning instruments are a mandatory consideration by reason of s 4.15(1)(a). In the case of a determination on the merits, that occurs at the time the power is exercised. In the case of a successful conciliation conference, that occurs when the Court forms the opinion required by s 34(3) that the agreed decision is one which the Court could have made in the proper exercise of its functions. But in neither case is compliance with the environmental planning instrument a jurisdictional prerequisite to the power to grant consent.”

25. El Khouri at [54].

75. The applicants submitted that the language used by Leeming JA was consistent with the Court, in exercising its function under s 34(3), undertaking the same exercise by reference to ss 4.15 and 4.16 of the Planning Act as would have been undertaken had there been a hearing on the merits. However, to read the judgment in that way is to disregard the context in which the observations were made and to disregard indications supporting a more limited inquiry.

76. First, Leeming JA referred to observations in Al Maha which were consistent with the proposition that the inquiry to be undertaken under s 34(3) related to jurisdictional restrictions. ^[26] Leeming JA also referred to AQC Dartbrook as consistent with those observations. ^[27]

    26. El Khouri at [23] and [24].

    27. El Khouri at [25].

77. Secondly, El Khouri dealt with a jurisdictional constraint, the limit on the maximum height of a building being prescribed by cl 4.3 of the relevant local environmental plan. ^[28] The judgment continued:

“31 There was no doubt that if the parties had not reached agreement at the conciliation conference and the Land and Environment Court had gone on to hear and determine Gemaveld’s appeal, then Court would have been required to have regard to cl 4.3 of the Kogarah LEP as an environmental planning instrument within s 4.15(1)(a). Even though the parties had reached agreement at a conciliation conference, in determining whether the decision reached by Gemaveld and the Council following the conciliation conference was one which ‘the Court could have made in the proper exercise of its functions’ for the purposes of s 34(3) of the Land and Environment Court Act, the Court was required to consider what approvals could have been given following a hearing, and in that way had to have regard to cl 4.3 of the Kogarah LEP.”

28. El Khouri at [29].

78. Thirdly, in the passage relied upon at [52] in El Khouri, Leeming JA described the exercise under s 34(3) as a “notional inquiry”. The statement that it involved the “same considerations” as if there had been a hearing by the Court does not mean that the Court was required to reach findings on all the issues which may have been raised in the proceedings which did not take place, but rather that, on a limited basis, the Court was to be satisfied that any jurisdictional requirement was complied with.

79. To read the judgment in El Khouri more broadly, would be to disregard these indications as to its intended scope.

80. For those reasons, the construction of s 34(3) preferred above is at least consistent with, and arguably supported by, dicta in the judgments of this Court. (The applicants accepted that the precise issue in question had not yet been resolved.) The Commissioner’s statement in her reasons that “I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties”^[29] was correct.

    29. Taylor at [8].

Ground 3: effect of development on amenity and structural integrity of surrounding properties

81. Ground 3 in the summons, including the particulars in support of it, referred to an amendment made to cl 6.2 of the Woollahra Local Environmental Plan 2014 which, it was contended, was a mandatory relevant consideration and had not been taken into consideration. As the owners correctly submitted, cl 6.2 identified a matter to be taken into account where earthworks were being undertaken, as was the case with the owner’s development. It did not contain a prohibition on the grant of consent.

82. On the analysis set out above, the Commissioner did not need to address it. However, she did so, setting out the plans, including a revised stormwater management plan dated 29 June 2022, and various other documents, including the agreed conditions of consent. One of the documents was a “legal submission” prepared by counsel for the applicants. The consideration covered 20 paragraphs, over several pages of the reasons. Relevantly to the issue raised by ground 3, the Commissioner stated:

“53   A planning proposal seeking to amend cll 1.2 - Aims of Plan and 6.2 – Earthworks of WLEP was on public exhibition until 11 March 2022. The amendments are proposed to emphasise the consideration of groundwater dewatering as part of the development assessment process. Set out above in this judgment are the relevant matters relating to cl 6.2 of WLEP and I note that the Geotechnical Report confirms there was no indication of groundwater in the investigation undertaken. As such, no ground water dewatering is proposed.”

83. Ultimately, the analysis undertaken by the applicants sought to demonstrate that what the Commissioner had taken into account was a planning proposal to amend cl 6.2, not the amended form of cl 6.2. ^[30] Further, it was said that the Commissioner had ignored the element which required consideration of “the effect of the development on … structural integrity of surrounding properties”. ^[31] In fact, the Commissioner stated that “[t]he extent and volume of the excavation is considered to be minor and not within the zone of influence of any adjoining buildings”; ^[32] and that the development would not have a detrimental impact on “environmental functions and processes, neighbouring uses…”. ^[33]

    30. Applicant’s written submissions, par 59(g).

    31. Applicant’s written submissions, par 60(b).

    32. Taylor at [44].

    33. Taylor at [46].

84. These challenges, to the extent that they were sought to be justified, did not demonstrate any failure to consider a factor in a way which might reasonably be expected to affect the outcome of the consideration. Any omission was therefore immaterial.

85. Ground 3 should be rejected for the following reasons:

1. The Commissioner was not obliged to address it.

2. In addressing the operation of the clause, she referred to the material considerations raised by the amendment.

3. She went further than to note the considerations, to express a view about the merits of the application.

4. To the extent that the Commissioner did not refer to the language of the amendment in two respects, namely by referring to groundwater rather than “dewatering”, and to the integrity of “adjoining” properties, there was no prospect of a different outcome if different terminology had been used.

Ground 5: lack of finality and certainty of a condition

86. Ground 5 referred to condition C10(a) of the consent regarding a “stormwater management plan” which specified the nature of an “absorption trench system” required to be installed on the property. The requirements of the condition were said to be inconsistent with the plan which had accompanied the development application which would, accordingly, need to be changed. It was then submitted that the development as approved “may be significantly different”^[34] from the development the subject of the application.

    34. Being the test of invalidity of a consent adopted by this Court in Mison v Randwick Municipal Council (1991) 23 NSWLR 734.

87. As the owners submitted, this ground raised a factual change of no consequence. The development application required demolition of an existing building, various earthworks, and the construction of a residential home and swimming pool. Further, the development approval and conditions, which were found as an annexure to the decision of the Commissioner, expressly stated that the works were to be carried out in accordance with the plans, unless the plans had been modified by one of a class of conditions, which included the condition as to the stormwater management plan. The stormwater management plan was to be included in the construction certificate plans and specifications, and not in the development application. Because the absorption trench system was required to be at least three metres from any property boundary and footing of any structure, it was possible that the spa would have to be moved or removed. Those submissions should be accepted.

88. Ground 5 should be rejected for the following reasons:

1. It did not raise a jurisdictional issue in relation to the power of the Commissioner to approve the decision of the parties.

2. In so far as a consent to a significantly different set of works from those the subject of the development application might be invalid, the factual basis of ground failed to engage that criterion.

Conclusions

89. Once it is accepted that the function of the Commissioner in determining what the Court “could have” done in the proper exercise of its functions, was restricted to considering jurisdictional constraints on the powers of the Court, it is clear that no relevant issue is raised in the present case. Grounds 1 and 2 were based on a false understanding as to the scope of the statutory scheme. The Commissioner was not required to address the evaluative criteria in s 4.15.

90. Even if that conclusion were wrong, the expansive reasons of the Commissioner gave rise to no jurisdictional error. Whilst procedural unfairness will constitute jurisdictional error, if the unfairness is capable of affecting the outcome, the allegation in the present case was based on a misconception as to the nature of the proceedings before the Court.

Rulings on evidence

91. The applicants sought to read a number of affidavits and tender a number of documents. The primary documents were the reasons and orders of the Commissioner, to which was annexed a document containing the terms and conditions of the development consent, the subject of the orders. They should be admitted as exhibit A.

92. Secondly, there were the documents setting out the terms of the agreement, which included a copy of annexure A (being the conditions of consent), and also annexure B, described as a “jurisdictional submission” for the purposes of the Commissioner considering whether the decision was one which could have been made by the Court pursuant to s 34(3). Those documents should be admitted and together marked exhibit B.

93. As the applicant sought to rely upon the judgments of Justice Duggan of 31 May 2022 and 5 August 2022, being the judgments on the applicants’ joinder motions, and the orders entered on JusticeLink dated 31 May 2022, as evidence of representations on which the applicants relied to raise legitimate expectations, those three documents should be admitted as exhibit C1, 2 and 3.

94. The “joint chronology” handed up at the commencement of the hearing may be admitted as, in effect, a statement of agreed procedural facts and marked exhibit D.

95. Three further documents formed the basis of allegations in ground 5 as to the history of amendment to the Woollahra LEP. They may be admitted as exhibit E1-3.

96. The applicants tendered two major reports by experts, which were relevant to the assessment of the merits of the development application, which, for the reasons set out above, is not a function of this Court. They are rejected.

97. The applicants sought to read affidavits sworn or affirmed by them personally as to their expectations in respect of the proceedings and annexing various documents relevant to procedural stages in the Land and Environment Court. Those materials were objected to on the ground of relevance, an objection which should be upheld. No objection was taken to a second affidavit of the first applicant, Julie-Anne McMillan, affirmed on 5 May 2023, and it was taken as read. To the extent that the applicants required evidence of their subjective expectations, that material was contained in that affidavit. There were no annexures.

98. The applicants’ solicitor also filed a number of affidavits annexing documents or setting out procedural steps taken in the Land and Environment Court. To the extent they are relevant, the documents have been separately admitted. The procedural steps are identified in the agreed chronology. Accordingly, the solicitor’s affidavits do not carry the matter any further and on that basis need not be read.

99. The owners sought to read two affidavits from experts in response to planning issues. As those affidavits were relied on defensively with respect to the further expert material sought to be tendered by the applicants, which has not been admitted, those affidavits were not to be pressed.

Orders

100. The Court should make the following orders:

1. Dismiss the summons for review filed 28 February 2023.

2. Order that the applicants pay the respondents’ costs in this Court.

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Endnotes

Decision last updated: 09 August 2023