Mulpha FKP Pty Ltd v The Hills Shire Council
[2012] NSWLEC 101
•09 May 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Mulpha FKP Pty Ltd v The Hills Shire Council [2012] NSWLEC 101 Hearing dates: 2-3 May 2012 Decision date: 09 May 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) The respondent by 23 May 2012 is to decide whether the surrender the subject of the applicant's notice of voluntary surrender of development consent DA 2100/2007/ZA delivered to the respondent on or about 26 August 2011, will or will not have an adverse impact on any third party or the locality, and:
(a) if the decision is that it will not, is to give the applicant the notification referred to in cl 97(4)(a) of the Environmental Planning and Assessment Regulation 2000, or
(b) if the decision is that it will, is to inform the applicant of its decision and that, consequently, it will not give that notification.
Catchwords: JUDICIAL REVIEW:- surrender of development consent - more than 8 months after notice of voluntary surrender of development consent, council had not decided whether to issue statutory notification required to give it effect - whether council under a duty to exercise statutory notification function - if so, whether reasonable time for exercising function had expired - appropriate relief. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4(4), 80, 80A, 94, 95, 104A, 124
Land and Environment Court Act 1979 s 22
Baulkham Hills Local Environmental Plan 2005 cl 45A
Environmental Planning and Assessment Regulation 2000 cl 97Cases Cited: Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61, 182 CLR 51
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22, 209 CLR 478
Goldie v Commonwealth of Australia [2002] FCA 261
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214
Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees' Federation [1917] HCA 64, 24 CLR 85
Randall v The Council of the Town of Northcote [1910] HCA 25, 11 CLR 100Texts Cited: Department of Planning, Interim Land Release Contribution Policy (October 2005)
DC Pearce and RS Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis ButterworthsCategory: Principal judgment Parties: Mulpha FKP Pty Ltd (Applicant)
The Hills Shire Council (Respondent)Representation: COUNSEL:
Ms S Duggan SC and Mr M Seymour (Applicant)
Mr A Galasso SC and Mr M Fraser (Respondent)
SOLICITORS:
Gadens Lawyers (Applicant)
The Hills Shire Council (Respondent)
File Number(s): 40252 of 2012
Judgment
More than eight months have passed since the applicant delivered notice of a voluntary surrender of a development consent to the respondent council under s 104A of the Environmental Planning and Assessment Act 1979 (EPA Act). Still the council has not responded by giving, or deciding whether to give, the applicant the notification required to give the surrender effect under cl 97(4) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). In these judicial review proceedings the applicant seeks relief aimed at compelling the council to give the notification or make a decision whether to give the notification.
Clause 97(4) provides:
97 Modification or surrender of development consent or existing use right
...
(a) takes effect when the consent authority notifies the person that:
(i) it is satisfied that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and
(ii) that the surrender will not have an adverse impact on any third party or the locality, and
(b) operates, according to its terms, to surrender the consent to which it relates.
The case turns on the construction and application of subparagraph (ii) of cl 97(4)(a). Subparagraph (i) is irrelevant because no part of the development has been carried out.
The council contends that:
(a) under cl 97(4)(a) it is not legally obliged to respond to a voluntary notice of surrender at all. A voluntary surrender cannot take effect unless the consent authority, in its absolute discretion, gives the cl 97(4)(a) notification.
(b) alternatively, if there is any legal obligation on the council under cl 97(4)(a):
(i) it is merely an obligation to "consider" the notice of voluntary surrender - nothing more, such as making a decision whether to notify. There is no evidence that the council has not discharged that obligation;
(ii) if there is an obligation to decide whether to issue a notification, the obligation is to do so within a reasonable time; and
(iii) a reasonable time has not elapsed in this case.
STATUTORY CONTEXT
Section 104A of the EPA Act provides:
104A Voluntary surrender of development consent
(1) A development consent may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the consent.
(2) A development consent may be surrendered under this section even if, on the making of an appeal under section 97 or 98, the consent has ceased to be, or does not become, effective as referred to in section 83 (2).
Section 104A is a voluntary surrender provision and may be compared with the provision in s 80A(5) for compulsory surrender under a condition of development consent:
80A Imposition of conditions
...
(5) Modification or surrender of consents or existing use rights
If a consent authority imposes (as referred to in subsection (1) (b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 10, the consent or right may be modified or surrendered subject to and in accordance with the regulations.
Clause 97 of the EPA Regulation regulates in subclauses (1) and (2) compulsory surrenders under s 80A(5), and in subclauses (3) and (4) voluntary surrenders under s 104A:
97 Modification or surrender of development consent or existing use right
(1) A notice of modification or surrender of a development consent or existing use right, as referred to in section 80A (5) of the Act, must include the following information:
(a) the name and address of the person by whom the notice is given,
(b) the address, and formal particulars of title, of the land to which the consent or right relates,
(c) a description of the development consent or existing use right to be modified or surrendered,
(d) particulars as to whether the consent or right is to be modified (including details of the modification) or surrendered,
(e) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the modification or surrender of the consent or right.
(2) A duly signed and delivered notice of modification or surrender of a development consent or existing use right referred to in subclause (1):
(a) takes effect when it is received by the consent authority, and
(b) operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates.
(3) A notice of voluntary surrender of a development consent, as referred to in section 104A of the Act, is to be given to the consent authority and is to include the following information:
(a) the name and address of the person by whom the notice is given,
(b) the address, and formal particulars of title, of the land to which the consent relates,
(c) a description of the development consent to be surrendered,
(d) if the person giving the notice is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the surrender of the consent,
(e) if development has commenced to be carried out in accordance with the consent-a statement setting out the circumstances that indicate:
(i) that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and
(ii) that the surrender will not have an adverse impact on any third party or the locality.
(4) A duly signed and delivered notice of surrender of a development consent referred to in subclause (3):
(a) takes effect when the consent authority notifies the person that:
(i) it is satisfied that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and
(ii) that the surrender will not have an adverse impact on any third party or the locality, and
(b) operates, according to its terms, to surrender the consent to which it relates.
(emphasis added)
It can be seen that a notice of compulsory surrender of a development consent referred to in s 80A(5) is expressed to take effect when it is received by the consent authority: cl 97(2)(a). In contrast, a notice of voluntary surrender of a development consent under s 104A is expressed to take effect when the consent authority notifies the surrenderor under cl 97(4)(a).
BACKGROUND
On 5 February 2008 the respondent council granted development consent DA 2100/2007/ZA for a proposed subdivision of land at Kellyville to create 32 residential lots and for the construction of roads. It lapses on 5 February 2013.
No part of the development has been carried out.
In relation to the subdivision, by deed of 10 January 2008 between the applicant and the Minister for Planning, the applicant agreed to pay the Minister a land release contribution for regional transport infrastructure by a defined time in the future. As provided for in the deed, the applicant delivered a bank guarantee to the Minister having a face value equal to that sum.
The deed was entered into because of provisions in the Baulkham Hills Local Environmental Plan 2005 and the Department of Planning's Interim Land Release Contribution Policy (October 2005). The subject land is zoned 2(b1) Residential, and cl 45A of the Plan and s 1.2 of the Policy provide that a consent authority must not grant consent for a subdivision of such land if it will create a lot of less than 40 hectares unless the Director-General of the Department of Planning has certified in writing that satisfactory arrangements have been made to contribute to the provision of regional transport infrastructure in relation to that lot. Under the Policy, satisfactory arrangements will be provided by the proposed developer entering into a deed of arrangement with the Minister setting out the arrangements to be made for the provision of transport infrastructure.
In about August 2011, Ms Evian Delfabbro, a director of the applicant, was told by Mr Ron Baker, an officer of the Department, that the Department would: (a) only release the applicant from the said deed if the applicant was able to confirm the surrender of the development consent or that no development consent existed for the land, and (b) call upon the bank guarantee lodged pursuant to the deed if the applicant disposed of the land without being released from the deed. Subsequently, on 28 November 2011, Mr Baker sent an email stating that the Department would relinquish the bank guarantee under the deed only when advice was received from the council that it had accepted the surrender of the development consent. The email indicated that this information had been relayed to the council and the applicant.
On 26 August 2011 the applicant gave the council a notice of voluntary surrender of the development consent pursuant to cl 97(3) of the EPA Regulation. The notice confirmed that no development had been carried out or commenced pursuant to the consent.
On 28 September 2011 the council wrote to the applicant noting the applicant's advice that the purpose of the voluntary surrender of the development consent was to enable the return of the bank guarantee held by the Department. The council also said that it "is working toward a solution that addresses this purpose without the need to surrender the consent".
On 29 September 2011 the applicant wrote to the council confirming that it did not wish to subdivide the land the subject of the consent and had not carried out any development. The applicant contended in the letter that the council's statement that it was working towards a solution that addressed the applicant's purpose without the need to surrender the consent was irrelevant and that the applicant had a statutory right to surrender the consent, which it had exercised.
On 26 October 2011 the council wrote to the applicant saying that it was "currently assessing whether the proposed surrender will have an adverse impact on any third party in the locality".
On 22 December 2011 a contract of sale of the land was entered into between the applicant and a third party. Clause 39.3 requires the applicant, as soon as practicable after the contract date, to lodge a "Surrender Application" and use its reasonable endeavours to have the existing development consent surrendered. Clause 39.4 provides that the purchaser consents to the applicant lodging the surrender application. Clause 40.7 provides that completion is subject to and conditional upon surrender of the consent. Clause 41.3 provides that if completion has not occurred by 30 June 2012 then either party may rescind the contract. Therefore, the applicant submits, its contract is imperilled if the council does not give a cl 97(4)(a) notification by 30 June 2012.
On 17 February 2012 the applicant's solicitors wrote to the council noting that the applicant had exchanged contracts for sale of the land, with the settlement contingent on the surrender of the consent. They said that there was no objective basis to conclude anything other than that the surrender will not have an adverse impact on any third party or the locality.
By letter dated 23 February 2012 the council responded, in summary, that: (a) it was required to "assess" the notice to voluntarily surrender the consent; (b) it was required to be "satisfied" that there would be no adverse impact "on any third party in the locality"; and (c) there was no statutory time limit by which council "must" issue a notice. The council's letter also stated that the purchaser under the contract had a development application before it that appeared to be near identical to the consent, and, assuming that, the voluntary surrender might be considered an "abuse of process" predicated on an "ulterior purpose". The council has pleaded no similar assertion in these proceedings.
It appeared to be common ground in closing submissions, and I accept it should be inferred, that the council acquired knowledge that there was a purchaser of the land at some time between December 2011 and 23 February 2012.
On 5 March 2012 the applicant's solicitors wrote to the council responding to the council's assertions in its letter of 23 February that it was not required to issue the notice confirming the surrender in any particular timeframe, that it was still considering whether there was any impact on any third party in the locality, and that the proposed surrender might be an "abuse of process". The applicant's solicitors again noted that contracts for sale of the land had been exchanged and that completion is subject to and conditional upon surrender of the consent, and stated that losses and damages were likely to flow from the council's delay in recognising the surrender. A copy of the contract was enclosed. Litigation was foreshadowed.
These proceedings were commenced on 13 March 2012.
Ms Delfabbro gave evidence and was cross-examined. Her evidence, which I accept, included the following:
(a) the applicant does not intend to develop the land. The land is not of sufficient size to warrant development by the applicant. Events subsequent to the grant of that consent have frustrated the applicant's original intention to acquire contiguous allotments to consolidate into a sizeable precinct;
(b) the land generates no income for the applicant and the applicant is paying rates and land tax on it. Debt is secured by way of a first mortgage against the land and therefore the applicant incurs substantial interest costs in holding the land;
(c) the applicant intends to sell the land as soon as practicable and use the proceeds to reduce its debt burden and therefore its ongoing interest costs;
(d) there is absolutely no chance of the applicant carrying out any development authorised by the consent before its lapsing date of 5 February 2013;
(e) the bank guarantee provided to the Minister under the 2008 deed is the equivalent of a cash borrowing and incurs an ongoing interest cost until it is returned;
(f) if the development consent is not effectively surrendered by 30 June 2012, the purchaser may rescind the contract; and
(g) as to the reasons for seeking to surrender the development consent, the applicant does not intend to develop the land, the land does not produce income, and the holding costs are significant. Therefore, the applicant believes that the only commercial decision is to sell at an appropriate price. In order for a sale to take place prior to the lapse of the development consent on 5 February 2013, the applicant needs to surrender the development consent. If the surrender is unable to proceed, the applicant will need to wait until the consent lapses before it can sell the land, so as to avoid the Department calling up the bank guarantee. This will require the applicant to bear additional holdings costs. Further, if the current purchaser rescinds, the applicant will need to place the land back on the market and attempt to find another purchaser, which will involve additional costs including holding costs.
Mr Joseph Grech, a director of the purchaser of the land, gave evidence and was cross-examined. His evidence, which I accept, included the following:
(a) the purchaser intends to subdivide the land and sell the individual lots;
(b) he does not like the existing consent and the purchaser has no interest in implementing it for two reasons. First, it expires in February 2013 and the purchaser does not want to be forced to start work on the development earlier than market conditions will allow. Secondly, some of the subdivision allotments in the consent do not suit the shape of the land. Therefore, the purchaser has put in its own development application, preferring it to be considered on a clean slate, on its own merits. He is aware that a new development consent is not the only basis upon which the purchaser could have addressed the shape of the land problem;
(c) he is aware that a new consent will attract lower local infrastructure contributions under s 94 of the EPA Act by about $700,000 compared with the existing consent, but that is not the main driver for the wish to have a new development consent although it is an important driver; and
(d) he is also aware that a new development consent will attract a land release contribution which is a fair amount lower than the amount of over $900,000 provided for in the 2008 deed between the applicant and the Minister.
CONSENT AUTHORITY'S NOTIFICATION FUNCTION
The applicant seeks to knock cl 97(4) of the EPA Regulation out of the equation by submitting that it is inapplicable to a development consent which has not commenced to be completed. The reasoning is that the two subparagraphs of cl 97(4)(a) are in precisely the same terms as the two subparagraphs of cl 97(3)(e), which applies only to a development that has commenced to be carried out in accordance with a consent. The present development has not commenced to be carried out. I do not accept the submission. Although it is curious that the information required by cl 97(3)(e) only has to be supplied by a surrenderor where the development has commenced to be carried out and not where it has not commenced to be carried out, the chapeau of cl 97(4) is clear that it applies to a notice of surrender referred to in subclause (3) - which refers generally to a notice under s 104A of the EPA Act - and is not restricted to the situation upon which paragraph (e) of subclause (3) is predicated.
The applicant submits that under cl 97(4)(a) the council is under a duty to provide the notification referred to therein (upon the statutory criteria in subparagraphs (i) and (ii) being satisfied).
The council submits that: (a) it is under no duty to do anything under cl 97(4)(a) because this provision is merely facultative; (b) the provision simply means that "it shall be lawful" for the council to issue the notification, ie it "may" issue the notification in its discretion; and (c) s 104A gives a right to apply for a surrender but it and cl 97(4)(a) cast no obligation on the consent authority to accept the surrender. The council reasons that cl 97(4)(a) contains no express provision for the consent authority to do anything; it does not even say that the consent authority "may" let alone "must" issue the notification; there is nothing about the nature of the power in the statutory context that requires the importation of a duty to make a decision; and it simply allows the council to issue the notification if it thinks fit, with the matters in the subparagraphs setting out the minimum points which must be present before notification can be given. The council points out that where a consent authority is bound to do something, other provisions of the EPA Act say so expressly (eg in s 80). The council says that the acceptance of a voluntary surrender of a consent is entirely at the discretion of the consent authority.
I do not accept the council's submission.
That a function under the EPA Act may be a duty is recognised in s 4(4) of that Act which provides that: "A reference in this Act to the exercise of a function includes, where that function is a duty, a reference to the performance of that duty".
In Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61, 182 CLR 51 at 88, Brennan J cited Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223 where Cairns LC said:
there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done,something in the conditions under which it is to be done,something in the title of the person or persons for whose benefit the power is to be exercised, which may couple thepower with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.
In Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees' Federation [1917] HCA 64, 24 CLR 85 at 96-97 it was said:
The rule in Julius v. Bishop of Oxford is not that wherever the word "may" is used in connection with a public office it means "shall." Nor, if the Legislature confers a right by the same word and states certain conditions, does it necessarily follow that the word imposes a duty on the proper officer, irrespective of all other considerations. The true rule is thus stated by Lindley M.R. in Southwark and Vauxhall Water Co. v. Wandsworth District Board of Works, speaking of the words "it shall be lawful":-"These words may, no doubt, under certain circumstances impose a duty as well as confer a power, but it is for those who contend that they do both to make good their contention.
Pearce and Geddes state in Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths at [11.3]:
The principal guide adopted by the courts in determining whether a provision imposes a duty or is merely facultative is to examine the effect of interpreting the provision one way or the other. If the court is satisfied that the purpose or object of the Act (or the provision in question) would be defeated if a task were not carried out by a person or body, it will rule that the provision is obligatory and the possessor of the power has no discretion to refuse to exercise it.
The issue is whether the consent authority's function under cl 97(4)(a) is in the nature of a duty or a discretion. Indeed, the council contends for an absolute discretion that is not justiciable. I do not accept that the concept of a non-justiciable discretion of a public authority exists legally. Even if it does, it should not be regarded as having been intended by the legislature in the absence of the clearest words. As Kirby and Callinan JJ said in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22, 209 CLR 478 at 503, "Absolute discretions are a form of tyranny". "There is, of course, no such thing as an absolute discretion in the literal sense": Goldie v Commonwealth of Australia [2002] FCA 261 at [45] per French J.
Section 104A was introduced into the EPA Act in 2003 and provided, for the first time, a right of voluntary surrender of a development consent. Its purpose, in effect, is to provide a trigger for the lapsing of a development consent earlier than the five years maximum period or lesser period determined by a consent authority in granting development consent, as prescribed by s 95 of the EPA Act. Unlike other provisions of the EPA Act, there is nothing to justify describing the voluntary surrender regime as one where a person applies to the consent authority (for a surrender) and the consent authority determines the application. The consent authority has no discretion. Its only function is to address and answer the questions posed by cl 97(4)(a) of the EPA Regulation and, if the answers are in the affirmative, to issue the notification to which the provision refers. The council submits that there is nothing in cl 97(4)(a) which prevents the consent authority from deciding not to issue the notification for reasons other than those specified in subparagraphs (i) and (ii). I do not accept the submission. In my view, the council's notification function is entirely circumscribed by and consequential upon its decision as to the matters in subparagraphs (i) and (ii).
A voluntary surrenderor is peculiarly vulnerable given that it is the function of the consent authority to give effect to the surrender and thereby to affect the interests of the surrenderor. This characteristic of the statutory regime bears on the nature of the consent authority's function and suggests, in my opinion, that it is a duty.
The words in s 104A(1) "subject to and in accordance with the regulations" should not be construed as envisaging regulations that defeat the right of surrender, for example, at the discretion of the consent authority. Clause 97(4)(a) should not be construed so as to defeat the right of voluntary surrender by making the efficacy of the surrender depend on the whim of the council as to whether or not to do something which it is empowered to do and which is essential to the efficacy of the surrender. Clause 97(4)(a) does not say that surrender of a development consent takes effect "if and when" the consent authority notifies the person. It says "when" the consent authority notifies the person. The legislature has created only two potential roadblocks to the efficacy of a notice of surrender. They are to be found in subparagraphs (i) and (ii) of cl 97(4)(a). The legislature has appointed the consent authority to police those two roadblocks. The consent authority's function is to determine whether the two roadblocks have been passed. If that determination is in the affirmative, its function is to give the surrenderor the notification to which the provision refers. Further, if the consent authority determines that either of the roadblocks has not been passed, then implicitly its function is to notify the surrenderor of that fact. The implication is necessary otherwise the surrenderor may never be informed of the fate of its notice of voluntary surrender: that is not sensible and is unlikely to have been the legislative intention.
On the council's submission, the right of voluntary surrender is an extremely weak right. It is merely a right to give a notice of surrender, which the consent authority is entitled to ignore or do nothing about, thus preventing it from having any effect. It is like a right to invite someone to dance, which the invitee is entitled to ignore. I disagree. I think that the right of voluntary surrender is like a right to dance subject to a chaperone determining, as she must, whether two preconditions to dancing are satisfied (the preconditions in subparagraphs (i) and (ii) of cl 97(4)(a)).
In my opinion, the purpose, text and context of the statutory voluntary surrender regime and the vulnerability of the surrenderor show that the consent authority is expected to exercise its statutory function under cl 97(4)(a) and that this function should be characterised as a duty.
A REASONABLE TIME
The council properly concedes that if under cl 97(4)(a) a consent authority is under a duty to do something, it must do it within a reasonable time. The question then is: what is a reasonable time in this case?
The question of what is a reasonable time to perform a statutory task is governed by the nature of the task and the relevant circumstances. The task under cl 97(4)(a)(ii) is to determine whether the surrender "will not have an adverse impact on any third party or the locality".
The council submits that a reasonable time for deciding whether to give the cl 97(4)(a) notification has not yet expired. Other than as discussed below at [43] and following, the council declines to make any submission as to what it has considered, or will or might consider, or how long it will or might take to consider. The council has called no evidence that might bear on those matters or to explain the delay that has occurred or to explain whether any delay will or might occur in the future. So far as the evidence discloses, the council has positively done only two things since it received the voluntary surrender notice more than eight months ago. The first is stated in its letter of 28 September 2011 to the applicant in the context of noting that the purpose of the surrender was to enable the return of the bank guarantee held by the Department. There the council said that it "is working toward a solution that addresses this purpose without the need to surrender the consent". In my view, that is irrelevant to its function under cl 97(4)(a). Secondly, by a letter to the applicant of 23 February 2012 the council submitted that the applicant's "proposed surrender, considered in light of the purchasers [sic] current development application, might properly be deemed by the Court's [sic] an 'abuse of process', predicated on an 'ulterior purpose'". No such allegation was made in these proceedings.
The council submits that although it received the surrender over eight months ago, in August 2011, a reasonable time to respond has not yet elapsed taking into account that it was not until later that it knew about, first, the decision of the Department not to call on the bank guarantee if the development consent is surrendered; secondly, the new development application; and, thirdly, the applicant's decision to sell and that the new development application was lodged by the applicant on behalf of the purchaser.
I note that the council acquired knowledge of the first matter in September 2011, the second matter in December 2011, and the third matter sometime between December 2011 and 23 February 2012.
The council submitted that these three matters bear on two issues which are required to be considered by the council when addressing whether "the surrender will not have an adverse impact on any third party or the locality" under cl 97(4)(a)(ii).
The first issue emerged for the first time in the applicant's written opening submissions. It is that local infrastructure contributions under s 94 of the EPA Act will be approximately $700,000 less if the 2011 development application is consented to and implemented than they would have been if the very similar existing development consent were implemented. The council submitted that as such a reduction in available s 94 funds is likely to result in a reduction in facilities, that would have an adverse impact on the locality. The council submitted that its task in assessing the impact is considerable, and therefore the time that has so far elapsed could not be regarded as unreasonable.
The second issue emerged for the first time in the council's oral submissions. It concerns the Department's agreement on behalf of the Minister to return the bank guarantee under the 2008 deed to the applicant if the consent is surrendered. The land release contributions payable to the Minister under the 2008 deed, if the subdivision the subject of the development consent were to proceed, would be a fair bit more than such contributions if, instead, there were to be a similar subdivision pursuant to a consent to the purchaser's 2011 development application. The council submitted that this would mean that the surrender will have "an adverse impact" on a third party (the Minister) under cl 97(4)(a)(ii).
Later in oral submissions, the applicant submitted that the Court should clear the decks by deciding whether those two issues were relevant under cl 97(4)(a)(ii). In submitting in response that the Court should not make that decision, the council beat a partial retreat from its earlier stance. Now, instead of submitting that they were matters which the council was required to consider, the council submitted that the Court should not decide whether they were relevant under cl 97(4)(a)(ii) because they were merely "examples" of matters that were available for the council to consider if the council chose to do so, that it could not be said that in fact the council had or would or might consider them, and that consequently it would be hypothetical for the Court to determine whether they were relevant under cl 97(4)(a)(ii). The council's ultimate submission is difficult to reconcile with its earlier submission, and the fact that it tendered documents going to those two issues and cross-examined on them. Further, I admitted those documents subject to relevance, and over objection by the applicant as to their relevance.
In the circumstances, I consider that it is open to me to decide whether the two issues are relevant under cl 97(4)(a)(ii).
In my opinion, they are not relevant. As no development has commenced under the consent, no contributions are payable in relation to the consent. Nothing will change following the surrender of the consent. No loss will be suffered by reason of the surrender. All that will occur, in effect, is the lapsing of a consent earlier than by the five year effluxion of time, which is the purpose of the statutory voluntary surrender scheme. If a second, separate and lawful consent is obtained for the land, which includes different contributions payable as a result of the application of the planning law today as compared to when the earlier consent was issued, this will be a lawful consequence of the planning system. This cannot be described as an adverse impact on a third party (the council or the Minister) or the locality, nor can it be causally attributed to the voluntary surrender of the subject consent within the meaning of cl 97(4)(a)(ii). Furthermore, the surrender also cannot be regarded as having an "adverse" impact on the Minister if, as appears to be the case, the Minister is agreeable to the surrender. There has been no suggestion that it is or would be a proper purpose of the council, by doing nothing under cl 97(4)(a), to put pressure on the applicant or a purchaser to proceed with development under the subject consent in order to obtain larger contributions. Putting those two contribution issues aside as irrelevant, in my opinion the council has had more than a reasonable time to perform its duty under cl 97(4)(a).
Even if I am in error and the two contribution issues are relevant under cl 97(4)(a)(ii), I am of the opinion that a reasonable time for the council to discharge its duty has expired. Lamentations in the council's submissions to the effect that its notification function is an enormous and complex task ring hollow given the absence of any evidence on the point from the council and the fact that its submissions identify only the two contribution issues as relevant. Its counsel has said everything that can be said in that regard (at least for the purposes of the trial). On the material before the Court, the council has had ample time to identify, consider and decide the subparagraph (ii) matter. In reaching that conclusion, I assume (without deciding) in the council's favour, as it submits, that: (a) the reasonable time was extended by the matters relating to those issues which came to the council's attention after it received the notice of surrender (see [43] - [44] above); and (b) the personal exigencies of the applicant, such as the sunset clause in its sale contract and its holding costs, are irrelevant to the reasonable time issue.
I therefore propose to order the council to discharge its duty under cl 97(4)(a) within 14 days.
If I am in error as to whether the reasonable time has expired, I would alternatively hold that a reasonable time will expire in a further 14 days and that there is an anticipatory breach of the EPA Act by the council in not recognising its duty. On this alternative basis, the remedy of the same 14 day order would also be justified.
COSTS
The applicant has been successful. Costs normally follow the event in judicial review proceedings such as these. The only matter that the council raises in opposition is that there should be an apportionment because the applicant failed in its argument that cl 97(4)(a) does not apply where the development has not commenced: see above at [26]. That argument took up little time and I do not consider that it is sufficient to warrant an apportionment. The parties have agreed that the applicant is to pay the costs of the respondent thrown away by the applicant's amendments to the points of claim.
ORDERS
The Court is empowered to make such order as it thinks fit to remedy the council's breach of the EPA Act: s 124 EPA Act, s 22 Land and Environment Court Act 1979.
I do not accept the applicant's submission that the Court should declare that its notice of voluntary surrender is effective or alternatively order the council to give the statutory notification. The order cannot go further than to compel the council to do an act which the applicant is entitled to have done: Randall v The Council of the Town of Northcote [1910] HCA 25, 11 CLR 100 at 105. The council has no discretion, it must answer the question posed by cl 97(4)(a)(ii) and, if the surrender will not have an adverse impact, must issue the notification to the applicant to which the provision refers. The appropriate remedy in my view is to order the council to perform its statutory function within 14 days as formulated below.
The orders of the Court are as follows:
(1) The respondent by 23 May 2012 is to decide whether the surrender the subject of the applicant's notice of voluntary surrender of development consent DA 2100/2007/ZA delivered to the respondent on or about 26 August 2011, will or will not have an adverse impact on any third party or the locality, and:
(a) if the decision is that it will not, is to give the applicant the notification referred to in cl 97(4)(a) of the Environmental Planning and Assessment Regulation 2000, or
(b) if the decision is that it will, is to inform the applicant of that decision and that, consequently, it will not give the notification.
(2) As to costs:
(a) the respondent is to pay the applicant's costs subject to (b);
(b) the applicant is to pay the respondent's costs thrown away as a result of the applicant's amendments to the points of claim; and
(c) the costs referred to in (a) and (b) may be set off against each other.
(3) The exhibits may be returned.
Decision last updated: 10 May 2012
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