Pepperwood Ridge Pty Ltd v Newcastle City Council

[2008] NSWLEC 196

Reported Decision: 160 LGERA 164

Land and Environment Court

of New South Wales

CITATION:	Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196
PARTIES:	APPLICANT: Pepperwood Ridge Pty Ltd RESPONDENT: Newcastle City Council
FILE NUMBER(S):	10470 of 2005
CORAM:	Biscoe J
KEY ISSUES:	Development Application :- Whether made under State Environmental Planning Policy (Seniors Living) 2004 even though lodged prior to its commencement. Costs:- Costs in merit appeal proceedings - Costs of determining preliminary question whether development application was made under State Environmental Planning Policy (Seniors Living) 2004 even though lodged prior to its commencement.
LEGISLATION CITED:	Environmental Planning and Assessment Regulation 2000 (NSW), cl 55 Land and Environment Court Rules 2007, Pt 3 r 7 Newcastle Local Environmental Plan 2003 State Environmental Planning Policy No 1 – Development Standards State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability State Environmental Planning Policy (Seniors Living) 2004, cll 4(2)(a), 5(1), 6, 25(1), 26(1), 27(1), 28(1), 74, Ch 3, Sch 1 State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 1), cl 2, Sch 1 cl 4, State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 2) State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Amendment No 3), cl 2 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
CASES CITED:	Currey v Sutherland Shire Council (2003) 129 LGERA 223 Multistar Pty Ltd v Minister for Urban Affairs and Planning (No 2) (2000) 111 LGERA 319 Pepperwood Ridge Pty Ltd v Newcastle City Council [2005] NSWLEC 257 Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340 Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 19 Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 719 The Dubler Group Pty Ltd v Minister (2004) 137 LGERA 78
DATES OF HEARING:	18/06/08
DATE OF JUDGMENT:	19 June 2008
LEGAL REPRESENTATIVES:	APPLICANT: Mr C. McEwen SC and Mr T. Howard SOLICITORS: Mallik Rees RESPONDENT: Mr J. Maston SOLICITORS: Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

19 June 2008

10470 of 2005

PEPPERWOOD RIDGE PTY LTD v NEWCASTLE CITY COUNCIL

JUDGMENT

1 HIS HONOUR: In these proceedings, the applicant Pepperwood Ridge Pty Ltd has appealed against the respondent Newcastle City Council’s deemed refusal of the applicant’s integrated development application to erect serviced self-care housing.

2 The following preliminary question is before me for determination:

Was the development application an application made pursuant to Chapter 3 of State Environmental Planning Policy (Seniors Living) 2004 (GG No 67 of 31/3/2004) in its unamended form, that was lodged with the consent authority (but not finally determined) before the commencement of State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 1) (GG No 157 of 16/12/2005) for the purposes of clause 83 thereof?

3 The applicant submits that the question should be answered in the affirmative. The council submits that it should be answered in the negative.

Background

4 The development site comprises the following parcels of land: Lots 1 and A DP 417903 and Lots A and B DP 417019 known as 164 – 168 Lake Road, Elermore Vale (the property).

5 At all material times the property was in the Local Government area of the respondent council.

6 The property is land to which the Newcastle Local Environmental Plan 2003 (as amended) applies. The property is zoned “7(c) Environmental (Investigation)”.

7 On 18 February 2004 the Minister for Infrastructure and Planning was asked in State Parliament what was the latest information on State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (SEPP 5). In the course of his answer, the Minister said:

…we propose that the State Environmental Planning Policy will be replaced by a new State plan, a plan for seniors living, which will be published in March. The new seniors living policy will set higher standards for independent living and will replace the current SEPP 5. In simple terms, the SEPP will require greater compliance with occupancy restrictions to minimise abuses by developers who use SEPP 5 as a way of introducing medium-density development into local neighbourhoods by stealth.

8 On 25 March 2004 the council received from the applicant a development application numbered DA 04/0673 for “51 SEPP 5 units in ten stages”. The accompanying Statement of Environmental Effects included the following statements:

SEPP 5 is currently under review and the revised SEPP 5 document will need to be considered in relation of this DA. At the moment that revised document has not been gazetted and has not been considered in this report.

It is noted that SEPP 5 is being revised and that the Minister for Infrastructure and Planning stated on 18 February 2004, that any application submitted after that date must comply with the requirements of the soon to be revised SEPP.

9 On 25 March 2004 SEPP 5 was in force.

10 On 31 March 2004 State Environmental Planning Policy (Seniors Living) 2004 (SEPP SL) was gazetted and commenced. Clause 5(1) repealed SEPP 5. Clause 6 contained transitional provisions relating to certain development applications and development. Clause 6(1)(a) provided:

Despite clause 5(1), State Environmental Planning Policy No 5— Housing for Older People or People with a Disability as in force
immediately before its repeal continues to apply to and in respect of the following as if it had not been repealed:
(a) any development application made under that Policy on or before 18 February 2004, but not finally determined before the commencement of this Policy.

11 Chapter 3 (clauses 16 to 37) of SEPP SL made provision for development for seniors housing. A number of clauses within Chapter provided that “A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied” as to various prescribed matters: for example, cll 25(1), 26(1), 27(1) and 28(1).

12 Clause 74 of SEPP SL made provision for serviced self-care housing development on land adjoining land zoned primarily for urban purposes (as in the present case). Clause 74(3) provided:

A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless it is satisfied that the development will result in 70 or more dwellings (whether because of a new development or additions to an existing development) for use as serviced self-care housing.

13 On 27 May 2004, the applicant’s consultant planner (N A and S N Joyce) lodged with the council a State Environmental Planning Policy No 1 – Development Standards (SEPP 1) objection to the 70 unit provision of cl 74(3) of SEPP SL. The letter included the following statement:

This letter is a SEPP 1 objection to the 70 unit provision of cl 74(3) of SEPP Senior Living 2004. This objection has been prepared to support an application for Development Consent No 04/0673 for a 51 SEPP Senior Living 2004 units at No 164 to 168 Lake Road Elermore Vale. The application was lodged in 25 March 2004. The SEPP Senior Living 2004 was gazetted on 31 March 2004, but in an unusual move for the State government, the SEPP actually took effect from 18 February before it was actually gazetted.

14 On 16 June 2004 the council wrote to the applicant’s planner. The letter included the statement:

I refer to the abovementioned application for the erection of aged units under the Senior Living SEPP. Council referred the application to our solicitors having regard to the nature of the zoning under provisions of the new SEPP.

15 On 12 October 2004 the applicant wrote to the council enclosing a copy of the applicant’s legal advice which the applicant said “indicates to us that there is no impediment to council in considering our application on the basis of the Senior’s Living SEPP”.

16 On 13 October 2004 the applicant’s town planner sent a letter to the council stating that on the basis of legal advice, they wished to proceed with the application.

17 On 25 November 2004 the applicant’s solicitors wrote to the council stating:

We have now received instructions from our client to commence Class 4 proceedings in the Land and Environment Court seeking a declaration to the effect that the land in question is amiable to an application under the Senior Living SEPP, notwithstanding the fact that the land is zoned 7(c) Environmental Investigation Zone and that the consent authority can consider an application under the Senior Living SEPP over the land.

18 On 30 November 2004 the council sent a letter to the applicant stating:

I refer to the abovementioned application for the erection of aged units under the Senior Living SEPP. Council has referred your further legal advice regarding your application to our solicitors.

Council’s solicitors have confirmed their previous advice that the current proposal is not permissible under the Senior Living SEPP having regard to provisions of Schedule 1.

…

It is considered that the 7(c) Environmental Investigation Zone qualifies as environmentally sensitive land under Schedule 1. The zone, on balance, is designed to protect that land until further investigation of its use is finalised. While that ultimate use might be urban, it may also be environmental (ie the purpose of the investigation component of the zone) and, as such, it would be pre-empted to allow urban development as proposed by the current SEPP – SL Development.

19 On 18 January 2005 the applicant filed a Class 4 application in this Court seeking, first, a declaration that the subject land is land to which SEPP SL applies and, secondly, an order that the council determine the development application for the erection of seniors housing under SEPP SL in accordance with law.

20 On 25 April 2005 the applicant filed an Agreed Statement of Facts in those proceedings which included the following statement:

In both the 7(c) and 2(a) zones under the LEP, development for the purpose of dwelling houses is permissible with development consent within the meaning of cl 4(1)(f) of the Seniors Living SEPP.

21 On 13 May 2005 the Class 4 application was heard in the Land and Environment Court by Pain J.

22 On 16 May 2005 the applicant filed a Class 1 application in this Court appealing against the council’s deemed refusal of the applicant’s development application. The preliminary question before me arises in those proceedings.

23 On 29 July 2005 Pain J dismissed the applicant’s Class 4 application: Pepperwood Ridge Pty Ltd v Newcastle City Council [2005] NSWLEC 257. It is apparent from her Honour’s judgment that the case was argued on the basis that the SEPP SL then in force applied unless it was excluded by cl 4(2)(a) which precluded its application to land described in Schedule 1 (Environmentally Sensitive Land).

24 On 7 October 2005 the applicant filed a notice of appeal against her Honour’s decision.

25 On 16 December 2005 State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 1) was gazetted and commenced. Clause 2 stated:

The aim of this Policy is to respect the form of seniors housing that is permitted on land adjoining land zoned primarily for urban purposes so that only hostels or residential care facilities will be permitted on that adjoining land.

26 The amendments effected that aim. Consequently, if SEPP SL (Amendment No 1) applied to the subject development application then the applicant’s proposal for self-care dwellings would have been prohibited. However, the parties proceeded as though it did not apply.

27 Clause 83 (introduced by cl 4 of Schedule 1 to SEPP SL (Amendment No 1)) included the following savings and transitional provision:

A development application made pursuant to Chapter 3 that was lodged with the consent authority (but not finally determined) before the commencement of State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 1) is to be determined as if that Policy had not been made.

28 Subsequent to the commencement of SEPP SL (Amendment No 1) the appeal against the decision of Pain J was heard. Judgment was delivered on 14 June 2006: Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340. The Court of Appeal found that SEPP SL did apply to the property and allowed the appeal. The Court held at [3] - [4]:

On or about 24 March 2004, the appellant lodged a development application with the Newcastle City Council (the respondent), proposing to construct 51 aged and disabled units upon the land. That form of development is prohibited in Zone 7(c) of the LEP. However, the appellant maintained that its proposed development was permissible with the respondent's consent pursuant to the provisions of State Environmental Planning Policy (Seniors Living) 2004 NSW (the Policy).

The respondent has not determined the appellant's development application because it contends that the Policy does not apply to the land as it is excluded by cl 4(2)(a) of the Policy, which is set out below. Accordingly, on or about 17 January 2005 the appellant instituted Class 4 proceedings in the Land and Environment Court of New South Wales seeking a declaration that the Policy applied to the land and for consequential orders.

First Amended Plan – 70 Units / 3 buildings

29 On 9 August 2006 the applicant lodged amended plans for the “erection of 72 self care dwellings contained in three buildings”.

30 On 9 October 2006 the council’s solicitors wrote to the applicant’s solicitors stating that it did not agree to the requested amendment because the number significantly exceeds that which was originally included in the development application.

31 On 4 December 2006 the applicant filed a notice of motion in these proceedings seeking leave pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) that the development application be amended as per the said amended plans.

32 On 19 January 2007 Talbot J dismissed the motion: Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 19. His Honour held at [3]: “State Environmental Planning Policy – Seniors Living (SEPP – SL) had the effect of repealing SEPP 5 retrospectively from 18 February 2004 and applied the provisions of SEPP – SL to any application lodged after that date”. If the latter part of that dictum is correct, it would require an affirmative answer to the preliminary question before me.

33 On 8 February 2007, the applicant filed a holding appeal in the Court of Appeal against the judgment of Talbot J. An ordinary summons for leave to appeal together with the White Book were filed on 4 May 2007.

Second Amended Plans – 70 Units / 10 buildings

34 In March 2007, the applicant lodged a further amended set of plans for 70 self-contained dwellings in substantially the same building configuration as the original site layout lodged in March 2004. That indicates a preference for complying with SEPP SL cl 74(3) rather than pressing on with the SEPP 1 objection to its 70 unit requirement.

35 On 30 July 2007 the council advised the applicant that it did not accept that its second amended plans fell within the amendment power in cl 55 of the Regulation.

36 On 21 August 2007 the applicant filed a notice of motion seeking leave pursuant to cl 55 that the development application be amended as per the plans lodged with the council in March 2007.

37 On 28 September 2007 State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 2) was gazetted. It removed the prohibition on serviced self-care housing introduced by Amendment No 1. Clause 74 introduced by Amendment No 2 provided in that regard that:

A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purposes of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority, by written evidence, that residents of the proposed development will have reasonable access to:

(a) home delivered meals;

(b) personal care and home nursing;

(c) assistance with housework

38 Clause 84(1) in Amendment No 2 was a savings and transitional provision in the following terms:

A development application made pursuant to Chapter 3 that was lodged with the consent authority (but not finally determined) before the commencement of State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 2) is to be determined as if that Policy had not been made.

39 A new cl 24B introduced a requirement for site compatibility certificates required for certain development applications made pursuant to Chapter 3 in respect of development for the purposes of seniors housing.

40 On 15 October 2007, Pain J granted the applicant leave to rely on the second amended plans, subject to the applicant discontinuing its appeal: Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 719. Her Honour held at [6] and [8]:

The proceedings have a lengthy history identified in the affidavit of Mr Mallik, having commenced with a development application filed on 25 March 2004 for a SEPP 5 development of 51 self care dwellings. That SEPP was replaced on 31 March 2004 by the SEPP SL which inter alia required a minimum of 70 dwellings for this type of development under cl 74(3). A transitional clause of SEPP SL (cl 6) had the effect of retrospectively applying the terms of SEPP SL, including cl 74(3), to this development application. A moratorium on development of self care housing was also imposed on land next to urban zoned land but this development application was able to continue under the transitional arrangements put in place at the time the moratorium was imposed on 16 December 2005.

…

There has been a further change to the Seniors Living policy effective from last Friday 12 October 2007 which means that there is no longer a moratorium on self care housing in certain locations in place and no minimum limit on the number of dwellings required for development applications of this type. The parties agree that these latest amendments have no legal relevance to this Class 1 appeal.

41 It should be noted that her Honour held that the transitional clause of the original SEPP SL had the effect of retrospectively applying its terms to this development application. If that is correct, it would require an affirmative answer to the preliminary question before me.

42 On or before 22 October 2007, and in accordance with the terms of leave stipulated by Pain J, the applicant filed a notice of discontinuance in the Court of Appeal proceedings.

43 In or about November 2007 the second amended plans were publicly notified in accordance with council’s Public Notification Policy. No objections from the public were received and five submissions were received from public authorities.

44 On 18 January 2008 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Amendment No 3) was gazetted and commenced. As stated in cl 2, its aim was merely to re-insert some provisions which were unintentionally repealed on an earlier occasion. There was therefore no need for and, there was no, savings and transitional provision.

45 On 4 March 2008 the council filed and served its Statement of Facts and Contentions in these proceedings. It identified the relevant statutory control as SEPP SL (unamended version – as gazetted on 31 March 2004).

46 On 18 March 2008 the council filed an Amended Statement of Facts and Contentions which repeated cl 4.2(a) of the original Statement of Facts and Contentions.

47 On 4 April 2008 the council’s solicitors wrote to the applicant’s solicitors stating inter alia:

We have prepared the draft reply to the client’s request for particulars.

It seems to us that a threshold issue has arisen.

Although the development application was made on 25 March 2004, it does not fall within any of the savings provisions (cll 52 and 53) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.

In our opinion, the relevant version of the SEPP that applies to this development will be the version of that instrument, current at the time of the Hearing.

Would you advise, as a matter of urgency, whether your client agrees with this position to enable us to finalise our reply. We foreshadow that we may need to seek leave to rely on a further amended Statement of Facts and Contentions. We are seeking instructions on that point.

48 This was the first time that the council had contended that SEPP SL in its original form was not applicable. From the applicant’s perspective, this proposition set the cat among the pigeons.

49 On 7 April 2008 the applicant’s solicitors replied to that letter stating inter alia that:

In relation to the issues raised in your letter of 4 April 2008, we note your client has had many years to raise these issues if it wished. We do not accept that the current version of SEPP (Housing for Seniors or People with Disability) applies. We say that the original SEPP applies. We note this is admitted in your Facts and we are entitled to rely on this.

We do not accept your argument and if you believe that you need to amend your Statement of Facts and Contentions then we give you notice that we will be opposing any such amendment and will be seeking costs of any amendment.

50 The council’s solicitors forwarded a letter to the applicant’s solicitors on 8 April 2008 which stated inter alia:

We confirm our earlier advice to you that in our view, State Environmental Planning Policy (Housing for Seniors for People with a Disability) 2004…in force at the date of the Hearing will be applicable to this application and not any repealed prior instrument.

51 On 10 April 2008 the applicant’s solicitors wrote to the council’s solicitors stating inter alia:

We note, however, that as a primary point you have belatedly raised the issue of which version of SEPP (SL) applies to this matter. We have already advised you that we do not agree with your view and take the position that the appropriate SEPP (SL) that applies is the unamended version. If you do not agree with this and insist that the latest amended version is the appropriate instrument that applies, then it is incumbent on you to amend your Statement of Facts and Contentions and ask the Court to have it determined as a matter of law which version of SEPP (SL) applies.

Until you do this it appears pointless for our clients to take any steps in this matter until that issue is resolved.

Could you therefore please, as a matter of urgency, advise by return whether you still claim that the relevant version of SEPP (SL) that applies is the version current as at the date of the Hearing and if so, please advise of what steps you intend to take to amend your Statement of Facts and Contentions to incorporate that issue and what steps you intend to take to have that question referred to the Court as a preliminary point of law.

52 On 15 April 2008 the matter was called before the Registrar who made directions granting leave to amend the Statement of Facts and Contentions and listing the matter before the Chief Judge on 28 April 2008 to discuss the issue of which version of the SEPP applied to the development.

53 On 17 April 2008 the council’s solicitors wrote to the applicant’s solicitors stating:

We take it from the election in your letter of 7 April 2008 that your client wishes to treat the development applications having been made pursuant to State Environmental Planning Policy (Seniors Living) 2004 in the form it took on its commencement on 31 March 2004.

We will assume this is in reliance upon the transitional provision (cl 83) in the State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 1) as gazetted on 16 December 2005, please confirm.

We have in anticipation, amended the Statement of Facts and Contentions on this basis and have made some consequential and other amendments. We enclose a marked up amended version and the final amended version by way of service.

In the circumstances the Council will not seek the determination of the separate questions before the Chief Judge.

The letter then proposed that a consent direction be obtained for listing of the matter before the Chief Judge be vacated.

54 On 18 April 2008 the applicant’s solicitors replied stating inter alia:

The amendments you are seeking are substantial in that it changes the whole ball game . We note that in the Statement of Contentions you seem to have wished to have it both ways, relying on unamended SEPP (SL) and the provisions of SEPP (SL) (Amendment 2).

The purpose of the issue of the Statement of Contentions is to clearly define the issues and we do not believe that you can do this in the manner that you have sought to do ie by raising two separate distinctive issues which are mutually exclusive. If your contention is that SEPP (SL) (current version) applies then you should say so in no uncertain terms and should ask the Court to determine that matter as a point of law bearing in mind that until now it has always been accepted by your clients that irrelevant [sic be relevant] SEPP (SL) is the unamended version.

As you have raised this issue we do not believe it is proper for you to now decline to have the matter referred as a separate question before the Chief Judge. We note you have indicated you will not do so and accordingly we are left no alternate other than to ask the Chief Judge to refer the question as a separate question of law which needs to be determined before the matter can proceed.

The simple facts are that you cannot have it both ways, either SEPP (SL) (current version) or SEPP (SL) (unamended version) apply, both of them cannot apply and framing your contentions on the basis that both may apply makes a mockery of the whole process and amounts to an attempt by your client to conduct these proceedings by way of ambush.

55 On 18 April 2008, the council filed a Second Amended Statement of Facts and Contentions. Clause 4.2(a) and (b) of this document now referred to the relevant statutory controls as SEPP SL (unamended version – as gazetted on 31 March 2004) and the current version. Paragraph 11 posed the issue whether in the public interest the proposal should be approved having regard to the purpose and provisions of cll 24 and 25 of SEPP SL as currently in force.

56 On 28 April 2008 the parties appeared before the Chief Judge who ordered that the question of which version of SEPP SL applied to the application should be determined as a separate question of law. At the hearing before me I was provided with a transcript of the hearing before his Honour. What transpired on that occasion is relevant to costs and is considered further below.

Submissions

57 Written submissions were filed by both parties.

58 The applicant submitted that the development application, although originally made pursuant to SEPP 5 on 25 March 2004, should be treated and determined as having been made pursuant to the original SEPP SL on and after 31 March 2004. It was submitted that this outcome accords with:

(a) The savings and transitional provisions the SEPP SL Amendments;

(b) Settled principles of statutory interpretation application applicable to environmental planning instruments;

(c) The manner in which the parties have addressed and treated the development application since 31 March 2004.

59 The applicant submitted that upon the repeal of SEPP 5, SEPP SL became the sole source of power to sustain the validity of the development application. The parties unequivocally treated the development application as made pursuant to SEPP SL unamended. Further, the applicant submitted, the applicability of SEPP SL was a fundamental and agreed premise, the provisions of which gave rise to four separate hearings before the Land and Environment Court and the Court of Appeal. In the circumstances, the only conclusion available is that development application was made pursuant to Chapter 3 of SEPP SL in its unamended form. Moreover, to permit the council to resile from its position would cause prejudice to the applicant who, on the face of the position taken by the council, has foregone the opportunity of lodging a fresh development application since 31 March 2004. The council should not now be permitted to resile from the position that it took throughout the proceedings until its solicitors letter of 4 April 2008: Multistar Pty Ltd v Minister for Urban Affairs and Planning (No 2) (2000) 111 LGERA 319.

60 The council in its written submissions submitted that the applicable version of SEPP SL would be the version in force when the proceedings were determined. That was the normal rule in the absence of any provision to the contrary: The Dubler Group Pty Ltd v Minister (2004) 137 LGERA 78 (CA). The council submitted that there was no such contrary provision. The council submitted that there was no transitional provision in any version of SEPP SL which affected a development application lodged or made after 18 February 2004 but before the making of SEPP SL on 31 March 2004.

61 The applicant submitted that there was little, if any, scope for the concept of a “valid” application: Currey v Sutherland Shire Council (2003) 129 LGERA 223 (CA) at 231. I would say at once that I accept that submission.

62 In oral submissions, following the conclusion of the applicant’s submissions, counsel for the council informed me that the council took the same position as the applicant; that is, that SEPP SL in its unamended form applied to the development application. He submitted that this had been communicated in the council’s solicitors’ letter of 17 April 2008 to the applicant’s solicitors and at the directions hearing on 28 April 2008 before the Chief Judge. He indicated that the council’s written submissions were a kind of “devil’s advocate” submissions to help the Court in its determination of the issue. This was contested by the applicant. I return to this point below in considering the issue of costs.

Decision

63 The development application was originally made under SEPP 5 and lodged with the council on 25 March 2004. SEPP 5 was repealed on 31 March 2004 by SEPP SL.

64 By reason of transitional and savings provisions of SEPP SL or its Amendments:

(a) if a development application was made pursuant to SEPP 5 before 18 February 2004 and was not finally determined before 31 March 2004, SEPP 5 applied to it: cl 6(1)(a) SEPP SL unamended;

(b) if a development application was made pursuant to Chapter 3 of SEPP SL unamended on or after 31 March 2004 and before 16 December 2005, SEPP SL unamended applied to it: cl 83 SEPP SL Amendment No 1.

65 In the absence of a contrary legislative intention, as evidenced by such provisions, a development application is determined on the law as it stands at the date of the determination: The Dubler Group Pty Ltd v Minister (2007) 137 LGERA 178 at [20] (CA). The council submits that, under this principle, SEPP SL in its form at the date of determination of the proceedings will apply, and not SEPP SL in its original unamended form. That is said to be because it is the applicant’s misfortune to have made and lodged the development application pursuant to SEPP 5 during the six week period between 18 February and 31 March 2004.

66 It is difficult to suggest any rational explanation for such a discordant, indeed bizarre, result. It throws into question whether that was the legislative intention. There are also logical difficulties with the council’s submission that the version of SEPP SL in force at the date of determination would apply. First, it is difficult to see why a version of SEPP SL applies if the development application was not made pursuant to SEPP SL but (as the council contends) pursuant to the repealed SEPP 5. Secondly, if it was not made pursuant to SEPP SL yet SEPP SL at the date of determination applies (as the council submits), important provisions of that policy which forbid a consent authority from consenting to a development application “made pursuant to” it unless satisfied as to various prescribed matters, would appear to be inapplicable.

67 It is unnecessary to consider those questions further because, in my opinion, cl 83 of SEPP SL Amendment No 1 applies to the subject development application. Clause 83 provides:

A development application made pursuant to Chapter 3 that was lodged with the consent authority (but not finally determined) before the commencement of State Environmental Planning Policy (Seniors Living) 2004 (Amendment No 1) is to be determined as if that Policy had not been made.

68 The separate use of the words “made” and “lodged” indicate that each has a separate meaning. The word “made” may be ambulatory in this context. In my opinion, an application “made” under SEPP 5 may subsequently be “made” under SEPP SL when the latter commences if the applicant communicated that intention to the consent authority. It is unnecessary for the applicant to instead engage in ritualistic paper shuffling involving formal withdrawal of the application previously lodged and formal lodgement of an identical application pursuant to SEPP SL, in order for an application pursuant to SEPP SL to be “made”.

69 In the present case, with the repeal of SEPP 5, the development application was “made” pursuant to Chapter 3 of the unamended SEPP SL, in my opinion, because:

(a) SEPP SL became the sole source of power to consent to the development application;
(b) the development application said that SEPP 5 was about to be replaced by SEPP SL and communicated an intention that it should then be considered under SEPP SL;
(c) from the time SEPP SL commenced, both parties accepted and treated the development application as made pursuant to the unamended SEPP SL. Thus, if the council’s acceptance of the applicant’s communicated intention was required, the acceptance was in fact provided. That common position of the parties continued for four years through four judgments of this Court and the Court of Appeal. Notwithstanding that the council expressed a contrary position in its solicitors’ letters of 4 and 8 April 2008, it has now informed the Court that it in fact adheres to that common position.

70 For these reasons, I answer the preliminary question “Yes”.

Costs

71 The applicant has been successful and seeks its costs of the preliminary question. The Land and Environment Court Rules 2007 Pt 3 r 7 relevantly provides:

(2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.
(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:
(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:
(i) in one way was, or was potentially, determinative of the proceedings, and
(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings…
(d) that a party has acted unreasonably in the conduct of the proceedings…

72 The applicant submits that r 3(a) and (d) apply in the present case. As to r 3(a), the applicant submits that determination of the question of law was determinative or potentially determinative of the proceedings in that, if decided in the negative, the application could not be determined unless the applicant obtained the prescribed site compatibility certificate. The council submits that this “unless” qualification negates the applicant’s submission.

73 Part 3 r 7(3) is not a code. It is a list of non-exhaustive circumstances which might inform the Court’s discretion under Pt 3 r 7(2).

74 It is necessary to refer to some further facts bearing on costs on which the parties’ submissions focussed.

75 At the directions hearing before the Chief Judge in April 2008, counsel for the council indicated that the council took the beneficial view that the development application was made pursuant to Chapter 3 of SEPP SL. It was indicated that this was “subject to anything the Court might think” and that the Court “will have to form its own view”. Counsel for the applicant commented that the council appeared, at least today, to accept the proposition that applicant had put forward. He noted that if it were to be held that the development application were not made pursuant to Chapter 3 of SEPP SL, then the applicant would be prevented from obtaining consent by cl 24 (introduced by Amendment No 2) until it obtained a site compatibility certificate. His Honour commented that this would be a jurisdictional pre-condition that the Court had to be satisfied of regardless of what the parties thought. Counsel for the applicant agreed and said that even if the council backs down on this proposition, the last thing the applicant wanted was to commence the hearing and have the Court determine that this is not an application which can be the subject of consent without a certificate. Counsel for the council proffered that he did not see the preliminary question process as enlivening the costs process because it went to jurisdiction. His Honour said that he thought that was probably right. I interpolate that his Honour was not seized of all the circumstances as I am. The preliminary question was then formulated.

76 On 4 June 2008 the solicitors for the applicant wrote to the solicitors for the council stating:

We refer to the abovementioned matter and note that you are in possession of all the facts, documents and submissions in which the Applicant relies in support of its argument that the provisions of the unamended SEPP – SL apply to the application currently before the Court.

You recall that Mr Maston, on your behalf, indicated to the Chief Judge when this matter was listed before the Chief Judge that the Council did not believe that in the event of an adverse decision an adverse cost order should be made against the Council, as the matter was being referred as a point of law, but not at the request of the Council.

It is obvious that a point of law was raised purely by the Council in this matter and the raising of such of point of law was belated to say the least.

It is clear from the material that you already have in your possession that council has for the last 4 years at least taken the stance that the appropriate instrument that applies with the current application is the unamended SEPP – SL and it has only recently raised this point of law.

In the event that Council files submissions in reply (rather than a submitting appearance) or participates in the argument by supporting the stance that the SEPP – SL in its unamended form does not apply to this application and in the event that the Court holds that SEPP – SL in its unamended form is the appropriate instrument under the which Application should be dealt with, then we advise that we will be seeking costs against the Council on the basis that Council was a genuine contradictor in this matter and had raised a proposition of law in circumstances where it was not reasonable for the Council to do so. In those circumstances we will be seeking a cost order against the Council, including a cost order on an indemnity basis.

May we suggest that Council consider whether it wishes to actively pursue the proposition that it has raised or whether in the circumstances it is more appropriate for Council to file a submitting appearance when this matter is heard by the Court on 18 June 2008.

This letter will be relied in the issue of costs should the need arise.

77 The council stirred up the issue before me in its solicitors’ letters of 4 and 8 April 2008 in which it contended that the SEPP SL current at the date of the hearing was the relevant version. Otherwise I do not believe the issue would have seen the light of day. The letters were a repudiation of the common position of both parties over four years that SEPP SL in its original unamended form applied, a period which included four judgments of this Court and the Court of Appeal. I am unable to accept the Council’s submission that its solicitors’ letter of 17 April 2008 evidences that by then it had reverted to the previous common position. That letter only noted the applicant’s position. The council’s Second Amended Statement of Facts and Contentions filed next day was equivocal.

78 It is true, however, that at the directions hearing before the Chief Judge ten days later, the council did communicate that it now took the same position as the applicant that SEPP SL unamended applied. Thus it abandoned the position it had taken in the letters of 4 and 8 April 2008. The issue having been stirred up by the council and ventilated before the Court, it was unsurprising that it was the applicant who then pressed at the directions hearing for the preliminary question to be determined.

79 Thereafter in written and oral submissions and notwithstanding the applicant’s solicitors’ letter of 4 June 2008, the council took a position which was indistinguishable from that of a conventional contradictor. I do not think that is negated by the oral indication in the middle of the hearing before me that the council actually took the same position as the applicant but was putting forward contrary submissions to help the Court.

80 In my view, the preliminary question was “potentially” determinative of the proceedings if answered in the negative in the sense submitted by the applicant. Whether or not that is so, I consider that an order that the council pay the applicant’s costs of the preliminary question is fair and reasonable in the circumstances.

Orders

81 The Court orders:

(1) The preliminary question is answered “Yes”.

(2) The respondent is to pay the applicant’s costs of the preliminary question.

(3) The exhibits may be returned.

(4) The parties are to have the matter listed before the Registrar within seven days for directions.