Pselletes v Randwick City Council

[2010] HCATrans 308

[2010] HCATrans 308

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S266 of 2009

B e t w e e n -

GARY PSELLETES

Applicant

and

RANDWICK CITY COUNCIL

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 NOVEMBER 2010, AT 2.08 PM

Copyright in the High Court of Australia

MR G. PSELLETES appeared in person.  (instructed by Newman & Associates)

MR M.S. HENRY:   May it please the Court, I appear for the respondent.  (instructed by Shaw Reynolds Bowen & Gerathy)

GUMMOW J:   Gentlemen, Justice Heydon and I have read the written submissions that have been prepared.  Is there anything you want to add orally, Mr Pselletes?

MR PSELLETES:   Yes, there is, your Honour. 

GUMMOW J:   Go ahead.  It would be helpful if you directed yourself, if you will do so, to page 68 which is your opponent’s – do you have the book there?  Page 68, paragraph 10 there, this is Mr Henry’s submissions.  See the statement at about halfway down the page:

Secondly, that there is a clear distinction –

Well, that is what is on our mind at the moment.

MR PSELLETES:   Thank you, your Honour.  Your Honour, look I am aware of that distinction, but I would like to put to the Court that there is a clear line of authority to support the contention that it is a notice of determination that constitutes the consent, in that when that determination is formally forwarded to the applicant that that notice – the applicant is entitled to presume that document can be relied on and there is that presumption of regularity.

Your Honour, in the Full Court – or the court below – Tobias J referred to Hopkins as his primary support for the contention that the resolution of council would be the appropriate determination.  However, in Hopkins, your Honour, it is distinguishable for a number of reasons.  In Hopkins the development that was approved by Tweed Shire Council was prohibited development and it was subject to a special résumé of environmental assessment pursuant to section 98 of the EPA Act 1979.

It was also a development that threatened the environment.  It was a development that, from one aspect, council stood to gain a financial win in that the excavation of the earth from the site would go towards the creation of a road.  I think it was Kirkwood Road.  So they had a financial interest in getting this application through.  The consent itself was undated, your Honour, therefore it did not even begin to run.  So the Hopkins judgment was really not one just about a resolution, but it was a number of issues.

The applicants in that case also referred to the fact that this approval for those particular works was not a technical breach of planning.  It was a serious breach on a number of fronts whereas in our case, your Honour, it is a mere balcony.  It is not threatening the environment.  It was formally and properly forwarded.  It was dated and it read that the balcony was approved.  It also had something else on that particular document, your Honour, and that is at the head of the document there is a reference to how a determination is made and forwarded. 

That determination is made and forwarded, according to that document under an Act.  It says “Development Application - Notice of Determination issued under the Environmental Planning and Assessment Act 1979, sections 80(1)(a)”, et cetera.

When a person, a lay person or any person receives a document such as this he is entitled to presume that it is what it is and it is what it says and if it is not what it says he is entitled to presume that council would immediately take the options available and open to it, such as approaching the court for an injunction immediately before any work commences, writing to the applicant at least and saying look we have made an error, please do not continue construction or please do not construct.  But what I think council is not entitled to do is to forward this document and then sit on it for 12 months before it issues a notice of order under section 121B.

The line of cases that are for and against my argument seem to divide where you have some judges agreeing that once a notice of determination has been forwarded and it is clear on its face there is no recourse by council to say that that development application is not effective.  There are other cases which say that there are times when a resolution of council does take precedence. 

Your Honour, I will just go to Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206, New South Wales Land and Environment Court. This is the Land and Environment Court, your Honour, the same court that Hopkins ‑ ‑ ‑

GUMMOW J:   Yes, we have it.

MR PSELLETES:   In that case and in J R Hunt Real Estate Pty Ltd v. Hornsby Shire Council, your Honour, unreported, 10 April 1997, in both those cases the broad legal principles that were found was that consent cannot be revoked once formally communicated and internal administrative error cannot vitiate a consent or approval issued by a consent authority and development consents create rights in rem which attach to the land.

That is very important, your Honour, because in many, many instances a development application is attached to a contract and the contract is forwarded to a person who is purchasing and he relies on that contract.  The lawyers very, very rarely, if at all, would ever go behind that development application to see whether council meant what it really said on the approval.

It is a document that goes to somebody in everybody’s family perhaps in this country.  It is a document that a lot of people rely on and, of course, the general public relies on.  Not only that, your Honour, but this document is, in fact, the document which the council relies on as its register of consents.  I happened to speak to the head of town planning in Randwick Council recently who said that this is how they present their register of consents in the form of this development application.  So that when the public goes along to council that is what it gets as its register.  So what it says here in my case DA964/2006:

Alterations and additions to existing dwelling including construction of new bedroom and balcony at front of dwelling at first floor and extension of existing garages –

Then there are a number of conditions, your Honour.  One of those conditions is condition 1, the most important condition:

The development must be implemented substantially in accordance with the unnumbered plan dated 7th November 2006 and received by Council on 9th November 2006, the application form and on any supporting information received with the application, except as may be amended by the following conditions and as may be shown in red on the attached plans.

Now, your Honour, the plans are stamped by Council and form part of the consent and that goes back to the case of Stebbins v Lismore Municipal Council.  In this particular case, your Honour, and the plans are in front of me and I could hand them up if your Honour wishes.

GUMMOW J:   No, I do not think that is necessary.

MR PSELLETES:   There is no notification of the balcony having been deleted by Council in red, as its own condition states it must, if it was deleted.  So, your Honour, you have a conflict.  You either go by the plans as the development application says, or you do not and there is ambiguity between the consent and the plans and the conditions.  Your Honour, in a later ‑ ‑ ‑

GUMMOW J:   Just a minute.  With reference to Stebbins what do you say about paragraphs 43 and 44 in the Court of Appeal at page 37?  Just find page 37.  You had the book a minute ago.

MR PSELLETES:   It has done a disappearing act, your Honour.

GUMMOW J:   Mr Henry will give you his.  Page 37.

MR PSELLETES:   Yes, your Honour.

GUMMOW J:   Paragraphs 43 and 44 over to page 38.

MR PSELLETES:   Yes, your Honour.  With Stebbins I think it was Priestley J who was the judge in that case who wrote the judgment and what happened there was there was a set of plans approved by council in the same fashion as our application.  The notice of determination came out approving an entrance to Bruxner Highway and what happened was that although a notice of determination came out approving the entrance to Bruxner Highway, there was also a note on the plan stamped in the same way as I pointed to that condition 1 of 964, of our drawings.  Their stamp was a stamp saying “Amendment required here”.

So in the judgment of Priestley J he identified that he was prepared to accept the first stage of the argument that the consent was in the notice of determination.  But because he was able to go to the plans and find that there was a council stamp on it saying amendment required here he was able then to find in favour of the council because council had alerted the applicant that an amendment was required.

In my case, your Honour, there is no mark on those drawings referring to any amendment and that is the basic difference.  Your Honour, it is not just Stebbins that comes to that decision.  In Mirvac Projects v Ku‑Ring‑Gai Council and Michael William Inglis [2007] NSWLEC 540, a case after Hopkins, at paragraph 17 – I will just briefly read this.

GUMMOW J:   Just a minute, we have it here.  Paragraph?

MR PSELLETES:   Paragraph 17.  It says:

I am inclined to the view, without deciding, that a person who receives a Notice of Determination is entitled to rely on the Notice and its contents, including any conditions, and to presume that the council has acted with regularity, unless there is some fact which indicates to the contrary.  In my opinion the applicant was entitled to assume that the Note appearing under the heading of the Building Conditions was a proper reflection of the council’s intention.  In a practical sense it would be entirely unworkable if upon receipt of a Notice of Determination it would be then necessary to plough back into the records of the council to check the contents of the Notice against the resolution.  The difficulties would be compounded further where consent is granted under delegated authority as in many cases the decision may not be recorded in the same clear‑cut fashion that one expects to see in a formal resolution of a council.

That basically sums up the position, your Honour.  But more than that this goes on further and in Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2009] NSWCA 273 ‑ ‑ ‑

GUMMOW J:   [2006], is it not?

MR PSELLETES:   [2006], yes, your Honour.  Your Honour, it was a judgment by Basten JA and his Honour referred to the House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR where Mason P said, when referring to the relevant principles of development consent:

“Emphasis upon the use as distinct from the person using the land reminds that a consent operates in rem.  In an oft‑cited dictum, Else‑Mitchell J described a development consent as ‘not personal to the applicant but enur[ing] for the benefit of subsequent owners and occupiers, and in some respects . . . equivalent to a document of title’ -

Ryde Municipal Council v Royal Ryde Homes and Eaton & Sons v Warringah Shire Council (1972).  Stephen J described a consent as:

‘essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject.  Once granted it makes lawful, in a town planning context what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor’.

Then at 36:

His Honour also approved the principles of interpretation expounded by Hope J in Auburn Municipal Council v Szabo (1971) 67 LGRA 427. If it be relevant, the discussion in Szabo, and in House of Peace, concerned consents given under the Local Government Act 1919 (NSW) . . .

“It is apparent from these decisions that in determining what a Council has approved, one primarily looks at the document constituting the approval, and construes it . . . it would create a confusing and difficult, if not impossible, position if in order to determine what a Council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the Council intended to incorporate in its approval. 

That above analysis by Basten J is not disturbed by the High Court in Weston Aluminium v Environmental Protection Authority & Ors.  Your Honour, in a case in South Australia – a simple case, I could not get the judgment downloaded, but in a very simple case before Justice White - it was Decca Pty Ltd v City of Adelaide (1982) 52 LGRA 85 - in that case, your Honour, it was simply held that where a consent is unambiguous it should be construed without reference to other documents, correspondence or evidence.

GUMMOW J:   Now, the yellow light is on so you had better collect yourself for your final couple of minutes, I think.

MR PSELLETES:   Yes, your Honour.  In Woolworths v Campbells Cash and Carry, your Honour, at page 9 – and on this one there are no paragraph numbers, but about a third of the way down - Campbells was the respondent in that case and it argued that:

in construing this consent, because of the provisions of the introductory words and condition 1, it was legitimate to have regard to the terms of the development application, and thus take into account the wider scope of activities for which consent was sought in the application rather than being limited to construction of the consent by reference to the description of the proposal provided by Council in the consent document.

In my opinion that is not so.  The law concerning the regard which may be had to either the application, or documents accompanying the development application, in construing a consent was summarised by Wilcox J, after reviewing the authorities, in Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia.

‘The authorities clearly establish that it is legitimate, in construing a development consent, to look at the plans that accompanied the application.  However, that may be done only where the consent document expressly or inferentially incorporates the terms of the application and only where this is necessary for the purpose of interpreting the consent.

Finally, your Honour, there is a case called Tipfast Pty Ltd v South Sydney City Council.

GUMMOW J:   That is No 11. 

MR PSELLETES:   In that case, your Honour, at paragraph 20 it refers to the decision of Winn v Director General of National Parks and Wildlife and Ors and it says:

A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms.  It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers.  It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security.  In some respects it is equivalent to a document of title.  It must be construed in accordance with its enduring functions.

GUMMOW J:   The red light is on.

MR PSELLETES:   Yes, your Honour, thank you.

GUMMOW J:   We do not need to hear from you, Mr Henry.

There are insufficient prospects of success in establishing error on the part of the New South Wales Court of Appeal in the interpretation and application of the relevant legislation to warrant a grant of special leave.

Special leave is refused with costs.

We will adjourn to reconstitute.

AT 2.30 PM THE MATTER WAS CONCLUDED