Roden v Bandora Holdings Pty Ltd

[2016] NSWCA 220

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Roden v Bandora Holdings Pty Ltd [2016] NSWCA 220

Hearing dates:

11 August 2016

Decision date:

24 August 2016

Before:

McColl JA at [1];
Basten JA at [2];
Payne JA at [64]

Decision:

(1)   Allow the appeal from the judgment of the Land and Environment Court given on 7 December 2015.

 

(2)   Set aside orders 1-3 made by the Land and Environment Court and in place thereof:

 

(a)   declare that the development consent 10.2014.230.1 dated 13 October 2014 given by the Byron Shire Council to the first respondent is invalid and of no effect;
(b)   order that the first respondent (Bandora Holdings Pty Ltd) pay the appellant’s costs of the proceedings in the Land and Environment Court.

 

(3)   Order that the first respondent (Bandora Holdings Pty Ltd) pay the costs of the appellant in this Court.

 

(4) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW), if not disqualified.

 (5)   Remit the matter to the Land and Environment Court for the purpose of any application for relief consequential on order (2)(a) above.

Catchwords:

APPEAL – civil – error of law – construction of environmental planning instrument – whether proposed development prohibited

 

ENVIRONMENT AND PLANNING – development application – rural tourist facility – whether wedding function venue permissible use – “tourist facilities” prohibited development – “rural tourist facility” innominate permissible use – whether definition of “tourist facility” exclusive of “rural tourist facility”

 

ENVIRONMENT AND PLANNING – development consent – successful challenge to validity – terms of relief – absence of interlocutory orders – whether discretion as to operative date of invalidity

 

STATUTORY INTERPRETATION – environmental planning instrument – indicators of illustrative non-exhaustive uses – whether “recreation” has different meanings in two provisions in the same instrument

  WORDS AND PHRASES – “recreation”, “tourist facilities”, “rural tourist facility”

Legislation Cited:

Byron Local Environmental Plan 1988
Environmental Planning Assessment Act 1979 (NSW), s 124
Land and Environment Court Act 1979 (NSW), s 25B

Cases Cited:

ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67
Botany Bay City Council v Saab Corp Pty Ltd(2011) 82 NSWLR 171; [2011] NSWCA 308
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Egan v Hawkesbury City Council (1993) 79 LGERA 321
Hawkesbury City Council v Sammut [2002] NSWCA 18; 119 LGERA 171
Marshall Rural Pty Ltd v Hawkesbury City Council (No 2) [2015] NSWLEC 210
Rydge v Byron Shire Council [2012] NSWLEC 155
Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Wingecarribee Shire Council v De Angelis [2016] NSWCA 189
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422

Category:

Principal judgment

Parties:

Colin Roden (Appellant)
Bandora Holdings Pty Ltd (First Respondent)
Byron Shire Council (Second Respondent)

Representation:

Counsel:
Mr J Sexton SC / Mr F G Kalyk (Appellant)
Mr S Nash / Ms Z Shahnawaz (First Respondent)
Submitting appearance (Second Respondent)

  Solicitors:
Wilshire Webb Staunton Beattie (Appellant)
McCartney Young Lawyers (First Respondent)
Marsdens Law Group (Second Respondent)

File Number(s):

2015/375990

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2015] NSWLEC 191

Date of Decision:

7 December 2015

Before:

Pain J

File Number(s):

2015/40019

headnote

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

On 13 October 2014, Byron Shire Council granted consent to a development application lodged by Bandora Holdings Pty Ltd (“Bandora”), for what was described as a “rural tourist facility” on a 10.88 hectare property in Talofa, comprising an occasional wedding function venue servicing up to 26 weddings a year involving 60-120 people in attendance. The application involved modification to an existing residence, construction of a car park for up to 30 cars, and the erection of a non-permanent marquee on a ridgeline. The land was zoned 1(a) General Rural Zone pursuant to the Byron Local Environmental Plan 1988, cl 9 Table, in force at the date of the development application.

The application was objected to by a neighbour, Colin Roden, who brought proceedings in the Class 4 jurisdiction of the Land and Environment Court challenging the validity of the consent.

On 7 December 2015 the summons was dismissed by Pain J. Mr Roden appealed.

The issues for determination on appeal were:

(i)    whether the approved development was for a “tourist facility”, prohibited in land zoned as 1(a) General Rural Zone, relevant to the subject land;

(ii) whether the primary judge had erred in not making findings as to the application of cl 31 of the Byron Local Environmental Plan (“BLEP”), which involved factual considerations relevant to the required construction or development near a ridgeline as per the development application.

(iii)    whether the Court should stay the operation of a declaration of invalidity.

The Court held (per Basten JA, McColl JA and Payne JA agreeing), allowing the appeal,

In relation to (i)

1. The primary judge erred in construing the BLEP by falling into error in reading down “tourist facility” with respect to land zoned 1(a).

2. The inclusion of the words “may include”, at the start of a list of prohibited uses within the definition of “tourist facilities” and “rural tourist facilities” indicates that the list is not exhaustive, but illustrative. The inclusion of “low scale” in the definition of “rural tourist facility” does not qualify the non-exhaustive list of examples included within the definition, following the disjunctive “or”: [14], [15], [22].

3. The primary judge erred in finding that the definition of “tourist facility” is exclusive of “rural tourist facility” in order to give cl 34 of the BLEP work to do. It is possible, but unusual, for a defined phrase to be given a meaning broadly defined but then to limit the meaning to specific cases. A finding that weddings were not included in “tourist facility”, would require the inclusion of words such as “other than such facilities as are included in the definition of ‘rural tourist facility’” in its definition. There is no justification for such an exercise in redrafting in this case. No principle of statutory interpretation warrants an approach which results in the assumption that that which is specifically prohibited should be read down so as not to prohibit that which might otherwise be permissible: [19], [24], [26], [27], [29].

In relation to (ii)

4. The question whether the prohibition on ridgeline development in cl 31 was engaged required a finding as to the availability of an alternative location; whether that involved a jurisdictional fact to be decided by the court, as argued by the appellant, was not squarely raised at trial and therefore could not be raised on appeal: [44]-[45].

In relation to (iii)

5.    Principles articulated in the “guidelines” per Kirby P, Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, are of limited assistance to a consideration of the discretion of the Court to delay the operation of a declaration of invalidity, as opposed to an injunction. The Court should not grant an injunction but remit the matter to the Land and Environment Court, which can grant consequential relief, if necessary.

Judgment

1. McCOLL JA: I agree with Basten JA.

2. BASTEN JA: On 8 May 2014 the first respondent, Bandora Holdings Pty Ltd, lodged a development application with the second respondent, Byron Shire Council for a proposed development on its property at Bangalow Road, Talofa. [1]

   1.    References to “the respondent” hereafter are references to Bandora Holdings.

3. The development was described as “a Rural Tourist Facility comprising an occasional wedding function venue (up to 26/year) with between 60-120 persons in attendance.” It also noted that “each wedding [will] involve activity on the site over 4-5 days”. [2] The development included modification to an existing residence on the property, being a two storey dwelling, construction of a car park for up to 30 cars and, controversially, a non-permanent marquee. The development was controversial because it was to occur on a ridgeline. The appellant, a neighbouring land owner, objected to the application.

   2.    Statement of Environmental Effects, p 9.

4. On 13 October 2014 the Council granted consent. The appellant brought proceedings in the Class 4 jurisdiction of the Land and Environment Court, challenging the validity of the consent. On 7 December 2015 Pain J dismissed the summons. [3]

   3. Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 (“Judgment”).

5. A number of grounds of challenge were raised by the appellant in the Land and Environment Court. In this appeal, only two matters were pursued. The first was the finding of the primary judge that the development was not a “tourist facility” within the meaning of the Byron Local Environmental Plan 1988 (“Byron LEP”), which, although since repealed, is the relevant planning instrument governing the development application.

6. The second ground concerned the construction and application of cl 31 in the Byron LEP which required the Council not to consent to the erection of a building or the carrying out of other development on or near any ridgeline, unless no alternative location was available. The appellant contended that the judge made no finding as to the unavailability of alternative locations, in circumstances were there was evidence that other locations on the 10.88 hectare property were potentially available.

Whether development prohibited

7. The land was zoned under the Byron LEP as “1(a) General Rural Zone”. Amongst the prohibited purposes of development was that identified as “tourist facilities”. The Byron LEP contained a definition of “tourist facilities” in the Dictionary (referred to in cl 5(1)) in the following terms:

“tourist facilities” means an establishment providing holiday accommodation or recreation and may include a boat shed, boat landing facility, holiday cabin, hotel, house-boat, marina, motel, playground, primitive camping ground, restaurant, water sport facility or a club used in conjunction with any such facility.

8. Putting to one side the examples given in the definition, the prohibited development is, relevantly for present purposes, “an establishment providing holiday accommodation or recreation”. There was no dispute that the development proposal included the provision of accommodation for up to 12 persons attending any wedding, which constituted “holiday accommodation”. There was also common ground with respect to the concept of “recreation”. The judge stated:[4]

“Both parties embrace or at least do not dispute the broad meaning given to the term ‘recreation’ in the definition of ‘tourist facilities’ in the same LEP in Rydge [5] which term was found to include attendance at an enjoyable social gathering in a beachside setting with family and friends whether incidental to holidaying or not. Lloyd AJ was determining whether the proposed wedding use was for the purpose of ‘tourist facility’ in the 2(t) Tourist Area zone. His Honour determined firstly that the definition of ‘tourist facilities’ was not inclusive … and should be read as ‘an establishment providing (i) holiday accommodation or (ii) recreation’. Secondly, in considering recreation as a separate purpose, recreation included weddings. The proposed wedding venue and use the subject of that case was found to be recreation at [19] and permissible as a tourist facility.”

4. Judgment at [50].

5. Rydge v Byron Shire Council [2012] NSWLEC 155 (Lloyd AJ) at [16]-[19].

9. Accepting that reasoning, the proposed development was prohibited in the 1(a) zone. For the respondent’s reasoning to prevail, it was therefore necessary to give the defined term “tourist facilities” a different meaning in relation to zone 1(a) from that which it had in relation to zone 2(t).

Prohibited development - Meaning of “recreation”

(a)   applying the statutory language

10. In fact the primary judge went further, concluding that “recreation” had a different meaning in the definitions of “tourist facilities” and “rural tourist facility”. The reasoning to that conclusion involved four steps. The first was to conclude that, apart from developments which could take place without development consent (of which the present development was not one), any development could be carried out with development consent if it were for a purpose other than a prohibited purpose. [6] Because the permissible purposes were not specified in this zone, they are widely, but somewhat confusingly, referred to in the argot of planning regulation as “innominate permissible uses”.

    6. Byron LEP, cl 9, zone No 1(a), item 3.

11. The second step was to look to the definitions of the various uses to find a purpose or use which was not prohibited and determine whether the proposed development fell within that purpose or use. The use identified was “rural tourist facility”, which was thus characterised as “an innominate permissible use”. [7] The third step was to determine whether the development constituted a “rural tourist facility”; that was accepted. [8] If it did, the fourth step required a reading down of the definition of “tourist facilities” to exclude the proposed development.

    7. Judgment at [28].

    8. Judgment at [67].

12. To address this reasoning, it is convenient to set out first the definition of “rural tourist facility”:[9]

"rural tourist facility" means an establishment providing for low-scale holiday accommodation, or used for recreational or educational purposes and may consist of a bed and breakfast establishment, boat landing facilities, environmental facilities, holiday cabins, horse riding facilities, a picnic ground, a primitive camping ground or a restaurant or the like.

9. Byron LEP, Dictionary.

13. This definition appears to be both broader and more limited than the definition of “tourist facilities”. It is more limited in that it permits only “low-scale” holiday accommodation; it is broader in that it includes establishments providing for educational purposes. The overlap apparent from the use of identical terminology is, however, large. Both deal with establishments providing for recreation, and each contain specific reference to boat landing facilities, holiday cabins and primitive camping grounds.

14. As the appellant contended, the approach adopted by the respondent and accepted by the primary judge in construing an environmental planning instrument was flawed. Before identifying the specific errors, it is to be noted that the reference in the definition of “tourist facilities” to “an establishment providing … recreation” is, on the reasoning adopted in the Court below, given a different meaning to the language in the definition of “rural tourist facility”, “an establishment … used for recreational … purposes”. The differences in these expressions are immaterial; to give them different meanings when used in a single instrument, would require clear justification, an exercise not undertaken, because the precise effect of the construction adopted was not explored.

15. The first specific error was to assume that the whole set of prohibited uses, in the definition of “tourist facilities”, was identified by the specific examples. By way of contrast, the definition of “rural tourist facilities” provided examples with a list commencing “may consist of” and ending “… or the like”. The respondent accepted that this list was illustrative. However, the examples in the definition of “tourist facilities” were introduced with the words “may include”, which also contradicted the assumption that the list was exhaustive. [10]

    10. See Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [42]-[45] (McColl JA); [92]-[93].

16. The second problem with the approach was to assume that each of the uses identified in the zoning tables (which are all defined in the Dictionary) involved mutually exclusive categories. That was a superficially false assumption with respect to “tourist facilities” and “rural tourist facility”, as the judge accepted. The primary judge appears to have been persuaded to a contrary view, however, by the need to give work to cl 34 of the Byron LEP, which imposed conditions on the grant of consent to development for the purpose of “rural tourist facility” on land within rural zones, where rural tourist facilities are permissible. The primary judge accepted that, if a rural tourist facility could not be built within zone 1(a), cl 34 would have no operation. [11] That was because all other rural zonings prohibited “rural tourist facilities” (as well as “tourist facilities”).

    11. Judgment at [47].

17. This reasoning assumed a greater degree of coherence and logic in the construction of the Byron LEP than was apparent. For example, in some zones both rural tourist facilities and tourist facilities are excluded (see zones 1(b1) and (b2) and (c1)). On the other hand, in the tourist area zone, zone 2(t), recreation establishments and tourist facilities are permissible, but there is no reference to rural tourist facilities. In zone 1(d), bed and breakfast establishments are permissible, although they also fall within the definition of rural tourist facility, which is not a permissible category in that zone. Not only does that example contradict the assumption of discrete categories, it is at least arguable that such activities are subject to cl 34.

18. Clause 34 would also have work to do without the assumption that every use which falls within the definition of “rural tourist facility” is permissible in zone 1(a); it would have work to do if those uses not prohibited as “tourist facilities”, but within the category of “rural tourist facility”, such as educational establishments, were accepted to be permissible. No reason was proffered to reject that approach.

19. However, following the logic that cl 34 can have work to do only if “rural tourist facility” is entirely separate from “tourist facilities”, [12] the judge then reasoned that the term “recreation” must have different meanings in each clause. The judge said that “[w]hether the definition of ‘tourist facilities’ is inclusive or exclusive determines if a wedding use can fall into both categories.”[13] If cl 34 could only have work to do if everything covered by the definition of “rural tourist facility” is available in zone 1(a), where tourist facilities constitute a prohibited use, the fourth step was to conclude that “[t]he only way that the whole of the [Byron LEP] can be made to function in relation to a rural tourist facility is if I find that the definitions are mutually exclusive.”[14] She therefore held that “[w]eddings are not included in the definition of ‘tourist facilities’.”[15]

    12. Judgment at [49].

    13. Judgment at [56].

    14. Judgment at [61].

    15. Judgment at [58].

20. This process of reasoning, defended by the respondent on the appeal, was artificial and implausible. It started with the premise that cl 34 must be given work to do, no matter what tortured construction of other language may result. Such reasoning would at least have required attention to the planning history of the Byron LEP to ensure that some operation which cl 34 had when enacted has not been lost: this exercise was not undertaken by the parties and may be disregarded for present purposes.

21. Acknowledging that there was clearly overlap in the kinds of use identified in each definition, the judge concluded:[16]

“To the extent the scope of the definitions overlap, a ‘rural tourist facility’ is limited to low-scale uses, whereas a ‘tourist facility’ is for uses greater in scale than a ‘rural tourist facility’.”

16. Judgment at [62].

22. The basis for that distinction was found in the opening words of the definition of “rural tourist facility” as meaning “an establishment providing for low-scale holiday accommodation, or used for recreational or educational purposes”. The term “low-scale” was understood to qualify everything which followed, including all of the non-exhaustive list of examples. This reading, again supported by the respondent in this Court, is untenable.

23. There are three elements in this definition, holiday accommodation, use for recreational purposes and use for educational purposes. The syntax denies any connection or relationship between the adjective “low-scale” and the words following the disjunctive “or”. Indeed, while it makes sense to describe accommodation as “low-scale”, it is by no means clear that to describe a purpose as “low-scale” is meaningful. If “low-scale” had qualified “establishment” the construction adopted by the primary judge may have been tenable, but that rewriting of the instrument was neither proposed in the judgment below, nor was it relied on by the respondent in this Court. That was no doubt because such an approach would have been inconsistent with the general principles of statutory construction found to apply to environmental planning instruments, which require close attention to the text of the instrument and would not justify rewriting the instrument. [17]

    17. Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20].

24. Finally, the characterisation of the definitions was based on a false premise. Each definition included two limbs. The first commenced with the word “means”, which is apt to indicate an exhaustive and not merely an illustrative meaning. That meaning may comply with the ordinary English meaning of the defined phrase, or it may not: in either case, it is the statutory language which is to be applied in the instrument. That part of each definition is exhaustive, although the language in it, which is not otherwise defined, may involve evaluative judgment.

25. It is the second limb of each definition, giving examples of what may be found within the first limb, which was the subject of the discussion in the judgment below as to whether it was exhaustive or illustrative. The primary judge concluded that the word “includes” in the definition “tourist facilities” was intended to give an exhaustive statement of the uses covered by that definition.

26. It might be possible for a defined phrase to be given a meaning broadly defined but then to limit the meaning of that broad language to specific cases. Whilst theoretically possible, it would be an unusual way to proceed. In other words, if “tourist facility” is taken to cover only those things identified in the list of examples, the first limb, namely “an establishment providing holiday accommodation or recreation”, would be otiose. (The principle requiring that cl 34 be given some work to do appears to have been forgotten.) Even if the implausible exercise of defining a term in broad language, followed by an exhaustive list of specific uses, is open, it is not possible to achieve that result by introducing the list with the words “may include”.

27. It is then necessary to introduce into the definition of “tourist facilities” some exclusionary phraseology such as “other than such facilities as are included in the definition of ‘rural tourist facility’”. There is no textual basis to justify that exercise in redrafting. In short, the exercise in construction promoted by the respondent and adopted by the primary judge fails at every step.

(b)   existing authority

28. The judge was confronted with a decision in the Land and Environment Court, Rydge v Byron Shire Council [18] in which Lloyd AJ had expressly found that an establishment which provided weddings was an establishment providing recreation within the definition of “tourist facilities” in the Bryon LEP. The primary judge declined to follow that authority on the basis that it had not been necessary in Rydge to consider whether a wedding facility was permissible in zone 1(a), where “tourist facilities” were prohibited as compared with zone 2(t), where “tourist facilities” were permissible. The point of distinction was valid, but there was no attempt to explain how the construction preferred by the primary judge, which would exclude wedding facilities in the tourist zone, could be rationally justified.

    18. [2012] NSWLEC 155.

29. The reasoning was also flawed because it assumed that that which was specifically prohibited should be read down so as not to prohibit that which might otherwise be permissible. No principle of statutory construction (as applicable to such an instrument) warranting such an approach was identified.

30. To the contrary, the exercise of construction pursued by the respondent was similar to that rejected by this Court in Egan v Hawkesbury City Council. [19] In that case, the question was whether a prohibition on “industries” included a prohibition on an “extractive industry”. Although “industries” was contained in the prohibition, so were different kinds of industries, including “light industries” and “offensive or hazardous industries”. Mahoney JA explained: [20]

“Therefore, if ‘industry’ is to be given its ordinary meaning, it would not be necessary to specify such kinds of industries in the prohibition as the specification of ‘industry’ would include these particular kinds of industries. It is suggested that the inference to be drawn is that each of the defined activities was intended to be dealt with separately and that the prohibition was not intended to apply to something which, though falling within ‘industry’ also falls within another kind of activity separately defined.

I find difficulty in accepting such a qualification upon the meaning of the terms used in the prohibition …. As the submission accepts, the problem arises because the definitions are so drawn that some activities may fall within not merely one but two or more of them. The submission for the respondents would involve that, if an activity for which development approval is sought is within a definition of an activity which is proscribed, it would yet not be proscribed if it also fell within a definition or class of activity not so prescribed [sic - proscribed?]. I do not think that that is how the Local Environmental Plan was intended to operate. It intended to remove from use with Council approval the kinds of activities falling within the definition as proscribed. The fact that a proscribed activity might fall within another definition was not intended to have the effect that it could be carried on, or carried on with consent.”

19. (1993) 79 LGERA 321.

20.    Egan at 328.

31. In Hawkesbury City Council v Sammut [21] this Court declined to depart from the reasoning in Egan. [22] In short, the prohibition should be given effect according to its terms and should not be read down by reliance upon the existence of another defined use, which is not expressly proscribed or permitted. Indeed, the application of that reasoning is stronger in this case than in Egan and Sammut. That is because the structure of the defined terms differs in the present case because the definitions of “industry” and various forms of industry discussed in Egan readily allowed for the specification of a genus (industry) of which the other forms were species of the genus.

    21. [2002] NSWCA 18; 119 LGERA 171.

    22.    Sammut at [24] (Mason P).

32. The reasoning of the primary judge conflicted with the reasoning of this Court in Egan, and in Sammut. While the primary judge was entitled to distinguish those cases on the basis that the Byron LEP differed in some material respect from the instruments considered in those cases, that exercise was undertaken only by reliance on cl 34 (in a way which should not be accepted for the reasons given above) but which in any event failed to accept the approach adopted in those cases.

33. In applying these cases what needed to be construed as the primary factor was the phrase “an establishment providing … recreation”. That phrase was not a defined term, but the Dictionary did contain a definition of “recreation establishment” which was as follows:

“recreation establishment” means a health farm, religious retreat house, rest home, youth camp or the like, but (in the table to clause 9) does not include a building or place elsewhere specifically defined in this Dictionary or a building or place used or intended for use for a purpose elsewhere specifically defined in this Dictionary.

34. The zoning requirements are identified in the table to cl 9, so that the qualification in this definition is operative. The term “recreation establishments” is to be found in the Table, for example, as a permissible development in a tourist area zone. Whether the definition applies to the different terminology used in zone 1(a) need not be determined, it being common ground that an establishment providing for weddings was an establishment providing for recreation. However, the definition is significant in that it recognises the possibility that, because it is a broad category, it could swallow up other defined terms and expresses an intention not to do so. There is no such intention expressed in the definition of “tourist facilities”.

(c)   prohibited development - conclusion

35. For all these reasons, the conclusion that the development proposal was not prohibited must be rejected. Accordingly, the appeal should be upheld and the development consent declared to be invalid.

Application of clause 31

36. The foregoing conclusion renders it unnecessary to consider the second ground of appeal raised by the appellant, namely that, if otherwise a permissible use of the land, the specific proposal was subject to the prohibition for development on ridgetops contained in cl 31. It is, however, appropriate to explain briefly why the challenge should not succeed.

37. There was no dispute that the proposed development involved the carrying out of work on or near a ridgeline. Clause 31 of the Byron LEP was in the following terms:

31   Development on ridgetops

The council shall not consent to the erection of a building or the carrying out of other development on or near any ridgeline on land to which this plan applies unless no alternative location for the building or other development is available, in which case the following objectives to lessen the impact are to be considered before consent is granted:

(a)   whether there will be adequate existing or proposed landscaping, trees or other vegetation which assist or are likely to assist in mitigating visual impact, and

(b)   whether the proposed building design elements, materials of construction and proposed colours will mitigate potential adverse visual impact, including the reflectivity of materials to be used.

38. The appellant’s complaint was that, although the trial judge had regard to the factors which had to be considered, set out in pars (a) and (b), no finding was made with respect to the condition on which the prohibition in the chapeau was lifted, namely the absence of an alternative location.

39. The appellant did not seek to challenge the consideration by the trial judge of the discretionary factors set out in pars (a) and (b) of cl 31. His submission was limited to the proposition that the first limb of cl 31 contained a jurisdictional fact which needed to be determined, before the discretionary evaluation could be undertaken. That required that the judge be satisfied that no alternative location was available.

40. However, the point was not so crisply defined in the Court below. The primary judge noted a submission that “the Council did not give proper consideration to cl 31 because the Council did not determine whether there was ‘no alternative location’ for the marquee.” [23] The judge also noted that the amended summons asserted as a factual matter that alternative locations were available. [24] She then dealt with the question of “proper consideration” on the part of the Council. The appellant accepted that the heading to section 2 of the amended summons used that language, but noted that sub-par (c) asserted as a fact that alternative locations were available. The judge treated that allegation as inappropriate in proceedings for judicial review, on the basis that the proceedings were only directed to the Council’s consideration of the matter.

    23. Judgment at [82].

    24. Judgment at [83].

41. In his written submissions in reply, the appellant contended that the issue of an alternative location was raised as a question of jurisdictional fact in submissions before the primary judge. However, the reference relied upon was preceded by the statement that “Council's satisfaction that there is ‘no alternative location’ was a precondition of its power to grant the consent.” [25]

    25.    Applicant’s outline submissions in Land and Environment Court, filed 15 October 2015, par 28.

42. The respondent objected to the factual matter being raised in this Court for the first time, on the basis that, had it appreciated that it was a matter of fact to be determined by the Court, it could have called evidence.

43. There was also a question as to whether it truly was a jurisdictional fact. The appellant relied upon the reasoning of Spigelman CJ in Woolworths Ltd v Pallas Newco Pty Ltd. [26] The respondent noted, however, that the Chief Justice had drawn a distinction between a fact which was an essential preliminary to the decision-making process and a fact to be adjudicated upon in the course of the inquiry. [27] The respondent said that a prohibition contained in the zoning tables was an essential preliminary to the evaluative process, but that the prohibition in cl 31 constituted an element undertaken in the course of the evaluative inquiry.

    26. (2004) 61 NSWLR 707; [2004] NSWCA 422.

    27. Woolworths at [46].

44. The distinction is not self-evidently correct, but there is a larger question as to the proper approach to construing a precondition to the exercise of a power as involving a factual element to be determined by the reviewing court. The application of Woolworths v Pallas Newco was considered by this Court in Trives v Hornsby Shire Council. [28] Although Pallas Newco was applied in that case, the correct approach to some of the factors which had been identified by the Chief Justice required reconsideration in the light of subsequent High Court authority. [29] These issues were not addressed in argument.

    28. (2015) 89 NSWLR 268; [2015] NSWCA 158.

    29.    Trives at [45]-[49] and [52]-[55].

45. On the basis that the jurisdictional fact question was not squarely raised in the Land and Environment Court, either in the pleadings or in submissions, and for the further reasons noted above, that ground should be rejected, but the outcome of the appeal is unaffected.

Relief

46. There remains a question as to the appropriate relief to be granted by this Court. On the basis that the appellant has succeeded on the construction of the Byron LEP, rendering the development proposal a prohibited development in the zone applicable to the land, the respondent accepted that there was no need for the matter to be remitted to the Land and Environment Court for it to consider whether relief should be withheld on a discretionary basis. The relevant power to withhold relief, provided in s 25B of the Land and Environment Court Act 1979 (NSW), was not engaged as it was not a question of specifying terms compliance with which would validate the consent. (Although the respondent appeared to renege on this concession in its submissions filed after the hearing,[30] its initial position was correct.)

    30. First Respondent’s Note on Discretion and Section 25B, par 9 (“respondent’s note”).

47. Nevertheless, the respondent did submit that the Court should delay the granting of relief on the basis that, as it was submitted but without evidence, the respondent had constructed the necessary facilities and was conducting weddings on the land and had bookings into the future. The respondent relied upon a decision of Moore AJ in the Land and Environment Court in Marshall Rural Pty Ltd v Hawkesbury City Council (No 2) [31] as authority for the appropriateness of delaying the grant of final relief.

    31. [2015] NSWLEC 210.

48. As the matter had not been raised prior to the final moments of oral argument, both parties were given leave to file brief written submissions addressing the authority relied upon. The respondent’s note also sought to rely on dicta of this Court with respect to s 124 of the Environmental Planning Assessment Act 1979 (NSW).

49. For a number of reasons, Marshall Rural did not assist the respondent. First, the issue concerned the application of s 124(1) of the Environmental Planning Assessment Act 1979 (NSW), which deals with orders required to remedy or restrain a breach of the Act. It is appropriate to note the operation of s 124 more generally.

124   Orders of the Court

(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

…

(3)   Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:

(a)   adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

(b)   in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

(4)   The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.

(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.

50. The reference in s 124(5) is to the part of the Court Act which includes s 25B. The relevance of s 124 will be considered below.

51. Secondly, while Moore AJ, in circumstances very similar to those sought to be relied upon in the present case, took the step of delaying the grant of injunctive relief, he made a declaration (the effect of which was immediate) as to the invalidity of the consent granted in that case.

52. Thirdly, it is by no means clear that that case was not one in which s 25B might have been invoked. The case involved consent by the Council to “the temporary use” of certain premises as a function centre, including for weddings. The judge appears to have accepted that consent might have been properly obtained and noted that fresh development applications had already been lodged and were to be considered by Council, in circumstances where the Council indicated that there was “a reasonable expectation that the fresh development applications may be determined during the March meeting cycle” of the Council. [32]

    32.    Marshall Rural at [10] and [11].

53. In the present case, there was no submission that a fresh development application would be made in the event that the appeal was allowed. Indeed, the assumption appeared to be that the respondent needed to rely on the since repealed Byron LEP. The basis on which delay was sought was purely to accommodate the reliance by the respondent on the validity of the development consent granted by Council and the absence of any interlocutory orders preventing it conducting its business on the basis of the extant consent.

54. It may be accepted that the respondent was entitled to conduct its affairs as it did in reliance on the Council’s consent, absent an interlocutory injunction. Nevertheless, in doing so, it took the risk that the appellant might succeed, either in the Land and Environment Court or in this Court. (The timing of the steps taken by the respondent in reliance on its development consent is not in evidence before this Court.)

50. The terms of s 124 of the Environmental Planning Assessment Act are directed to orders necessary to restrain a breach of the Act. Although the appellant sought in his notice of appeal an order restraining the respondent from using the land for the purpose of wedding receptions and associated purposes, that relief was not necessary to give effect to a successful appeal. The appellant did not present evidence that the development had taken place, nor evidence that, in the event that the appeal were allowed, there was a threat that the use, then found to be unlawful, would continue.

51. The respondent’s note sought assistance from dicta of this Court in Warringah Shire Council v Sedevcic,[33] ACR Trading Pty Ltd v Fat-sel Pty Ltd [34] and Botany Bay City Council v Saab Corp Pty Ltd. [35] However, these are of limited assistance in the present case. The “guidelines” for the exercise of the discretion conferred by s 124, set out by Kirby P in Sedevcic, articulate broad principles which are not specifically directed to temporary delay. Further, their focus is on the remedy of injunctive relief. Other members of the Court (Mahoney JA and Clarke JA) did not expressly adopt the “guidelines”.

    33. (1987) 10 NSWLR 335.

    34. (1987) 11 NSWLR 67 at 82D.

    35. (2011) 82 NSWLR 171; [2011] NSWCA 308 at [156]-[157].

52. In ACR Trading, Kirby P returned to the principles he had set out in Sedevcic and noted of the discretion conferred by s 124(1): [36]

“That discretion is a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction.”

Samuels JA and Hunt AJA agreed with Kirby P.

36.    ACR Trading at 82D.

58. The reference by Tobias AJA in Botany Bay City Council to the principles established in Sedevcic and the passage quoted above in ACR Trading [37] did not lead to relief being withheld but, subject to an issue arising from the winding up of the respondent, a conclusion that the Council was entitled to the relief it sought. [38] These authorities deal primarily, if not solely, with injunctive relief; they include no clear statements as the appropriateness of “suspending” the effect of a declaratory order.

    37.    Botany Bay Council at [156] and [157].

    38.    Botany Bay Council at [179(g)].

59. If the Court makes the declaration of invalidity sought by the appellant, it would be open to the Council or the appellant to take separate steps to restrain a continuing unlawful use. Given that the appellant had not sought an interlocutory injunction, it may be expected that a negotiated arrangement, satisfactory to all parties can be achieved.

60. Against the event that no agreement can be negotiated, two procedural steps would be available to the aggrieved party or parties. One would be to allow for further steps to be taken in these proceedings, which would require a remittal of the proceedings to the Land and Environment Court; the other would be to simply allow the appeal, without remitter, thereby requiring an aggrieved party to commence fresh proceedings in the Land and Environment Court to restrain unlawful use of the land, if it continued. The latter course would impose an unnecessary burden on the successful appellant and the Council; to remit the matter would allow for further relief to be granted at short notice and in final form. Accordingly, the matter should be remitted, for that limited purpose.

Costs

61. The success of the appellant on the appeal entitles him to costs in this Court. His failure on the cl 31 ground does not affect the outcome and costs should follow that event.

62. In the event of success in the appeal, the appellant’s written submissions sought costs in this Court and in the Land and Environment Court. The respondent having made no submission to the contrary, the appellant should have his costs in both courts.

Orders

63. The Court should make the following orders:

1. Allow the appeal from the judgment of the Land and Environment Court given on 7 December 2015.

2. Set aside orders 1-3 made by the Land and Environment Court and in place thereof:

1. declare that the development consent 10.2014.230.1 dated 13 October 2014 given by the Byron Shire Council to the first respondent is invalid and of no effect;

2. order that the first respondent (Bandora Holdings Pty Ltd) pay the appellant’s costs of the proceedings in the Land and Environment Court.

3. Order that the first respondent (Bandora Holdings Pty Ltd) pay the costs of the appellant in this Court.

4. Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW), if not disqualified.

5. Remit the matter to the Land and Environment Court for the purpose of any application for relief consequential on order (2)(a) above.

64. PAYNE JA: I agree with Basten JA.

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Endnotes

Decision last updated: 24 August 2016