Scouts Australia v Ryde City Council
[2002] NSWLEC 56
•04/24/2002
Reported Decision: 120 LGERA 98
Land and Environment Court
of New South Wales
CITATION: Scouts Australia v Ryde City Council [2002] NSWLEC 56 PARTIES: APPLICANT
RESPONDENT
Scouts Australia
Ryde City CouncilFILE NUMBER(S): 11073 of 2001 CORAM: Talbot J KEY ISSUES: Development Application :- amendment following lodgement of appeal - power of Court to agree to amendment of plans
Practice and Procedure:- Land and Environment Court Act 1979 s 39(2) - power of Court to agree to amendment of plans
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 80A(1)(g)
Land and Environment Court Act 1979 s 39(2), s 68
Environmental Planning and Assessment Regulation 2000 cl 55
Land and Environment Court Rules 1996 Pt 13 r 16(b1)
Ryde Development Control Plan No 15ACASES CITED: Basemount Pty Limited v Baulkham Hills Shire Council [2001] NSWLEC 95;
Ervin Mahrer and Partners v Strathfield Council [No 2] (2001) 115 LGERA 259;
Gibson v Mosman Municipal Council (2001) 114 LGERA 416;
McDougall v Warringah Shire Council (1993) 30 NSWLR 258;
North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 66 LGRA 352;
R v Shanahan and Others; Ex parte Northern Territory Planning Authority (1984) 54 LGERA 255;
Ross Karp Pty Limited v Randwick City Council (1999) 106 LGERA 397 ;
Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261;
Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147 Willoughby Municipal Council v Manchil Pty Limited (1974) 29 LGRA 303DATES OF HEARING: 08/03/2002, 15/04/2002 (final written submissions) DATE OF JUDGMENT:
04/24/2002LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Ms J M Studdert (Solicitor)
SOLICITORS
Deacons Lawyers
Mr TF Robertson SC
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND Matter No. 11073 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 24 April 2002
Respondent
1. By form of application class one filed on 20 December 2001 the applicant, Scouts Australia, has appealed against the determination of development application DA 805/01 by Ryde City Council (“the council”) on 20 November 2001, by the refusal of consent.
2. The development application was lodged with the respondent on 2 September 2001.
3. Prior to the consideration of the application by the council, amended plans were prepared on behalf of the applicant in an attempt to address the reasons for the prospective refusal of the application raised by the officers of the council. By letter dated 15 November 2001 the council returned the amended plans to the applicant advising that as the development application had been fully assessed the council did not agree to the submission of amended plans at that time. Following rejection of the amended plans, the applicant advised the council by letter dated 20 November 2001 that should the original application be refused by the council, Scouts Australia would ask the Land and Environment Court to accept the amended plans as part of the application to the Court.
4. On 12 June 2001 the council adopted Notification of Development Applications - Development Control Plan No 15A (“the DCP”). The DCP makes provision for notification and advertisement of development applications according to the category of development proposed.
5. By notice of motion dated 22 February 2002 the applicant now seeks leave to rely on the amended plans pursuant to Pt 13 r 16(b1) of the Land and Environment Court Rules 1996 (“the LEC Rules”) and an order that the respondent is to arrange for the amended plans to be publicly exhibited and notified as required. The notice of motion is opposed.
6. The Team Leader in the Environmental Assessment Division of the council, Sandra Hicks, has expressed an opinion that the amended plans constitute a substantially different application and that it will be necessary to undertake a complete re-assessment and to re-advertise the application as well as advising those persons who made submissions in respect of the original application.
7. The original plans lodged in support of the development application and the amended plans are before the Court. The major change brought about by the amended plans is a reduction of the number of proposed villas from 13 to 11. Moreover, the remaining villas have been repositioned with consequential changes in floor levels, building design, collection and discharge of stormwater and the landscape plan. Despite the change in the number of units, the Court is satisfied that the proposal has the same essential underlying characteristics as the original development. Although it will be necessary to re-advertise the application if the applicant is given leave to rely on the amended plans, the re-orientation of aspects of the development within the site are not such as they justify categorising the development described in the amended plans as being a different development, such that a new application is required.
9. Rule 16(b1) of the LEC Rules provides:-8. However, that is not an end to the matter. Contrary to conventional wisdom reflected in Pt 13 r 16(b1) of the LEC Rules, Mr TF Robertson SC, appearing on behalf of the respondent, submits that the Court does not have the power to exercise the function of the council created by cl 55 of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”).
- 16. Where proceedings are not referred to mediation or conciliation or where the proceedings remain unresolved following mediation or conciliation, they will be fixed for hearing. Where proceedings have been fixed for hearing the following requirements apply –
- (a) …
(b) …
(b1) except with the consent of the respondent, or by leave of the Court, the applicant at the hearing shall not be entitled to rely upon any amended plans of the development proposal which the applicant initiates;
(c) …
(d) …
(e) …
(f) …
(g) …
(h) …
(i) …
10. Clause 55(1) of the Regulation is in the following terms:-
- 55. (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.
The respondent’s argument in opposition to the notice of motion
12. The respondent makes the following three submissions:-11. It is convenient to deal, first of all, with the submissions made by Mr Robertson as for all practical purposes they raise the issues of law which fall for determination before the leave which the applicant seeks can be granted. In summary, the council challenges the jurisdiction of the Court to entertain the application for leave to amend the plans.
(a) s. 39(2) does not extend to functions of consent authorities relating to the processing of development applications as distinct from their determination;
(b) alternatively, it does not extend to defining the development application itself as that is the fact upon which the jurisdiction of the Court is founded and is the predicate for the exercise by the Court of the consent authority’s functions; moreover the making of the application and its amendment is not a function at the heart of the consent;
(c) if it does so extend, then the power of amendment was exercised by Council by refusing the amendment and is now exhausted by dint of Council’s refusal of the development application.
14. Section 39(2) of the Land and Environment Court Act 1979 (“the Court Act”) provides as follows:-13. Mr Robertson makes a distinction between the administrative decisions that must be made by a council, as consent authority, in the course of processing a development application and the substantive or evaluative decisions in determining the application. The administrative decisions are tasks which are not part of the consent authority’s determination functions but are antecedent to them. Accordingly, he says, the satisfaction of procedural requirements which enliven the power to determine the development application are not themselves part of the appeal unless a procedural requirement is also a substantive pre-condition to the grant of consent such that it raises an issue for determination by the consent authority. For instance, the decision to consent to the lodgement of a development application where the council is an owner or to the opening or closing of a road or the variation of a building line relate directly to the subject matter of the determination and are not merely matters of administration divorced form the council’s evaluative functions.
- (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
15. The Court agrees with Mr Robertson that decisions concerning the attraction of council functions to the Court under s 39(2) are to be made on a case by case basis. He submits that the distinction between administrative decisions made in the course of processing a development application and substantive or evaluative decisions is a principled distinction that will avoid the Court attracting duties to it (which are part of the defined “functions” under s 39(2)) of a managerial or administrative nature which it is ill-equipped to discharge. Those duties include such matters as the imposition of fees, the notification of development applications, consultation with Precinct Committees and other matters of a procedural nature which may be required to be performed in the course of processing a development application. Mr Robertson claims that Parliament could not have intended that the Court exercise the council’s non-evaluative functions.
16. Alternatively, he argues, that the power to consent or refuse consent to the amendment of a development application does not lie at the heart of the appeal because it defines a fact upon which the jurisdiction of the Court depends. Thus the power to amend a development application is appurtenant to the power to “make” the development application by determining the scope of the subject matter before the consent authority and, on appeal, the Court. It is, therefore, according to the argument, necessarily antecedent to the exercise of power “in respect of” the subject of the appeal because the exercise of the power brings “the subject” into existence. Moreover, logically it is claimed the power to consent to a re-definition of the subject is not a power in relation to a particular development application but a power in relation to the making of a development application which is entirely different to the powers which are engaged once the development application is made (or notionally re-made after amendment).
18. Given that Mr Robertson recognises the remarks by Kirby P, as he then was, in McDougall v Warringah Shire Council (1993) 30 NSWLR 258 as the widest statement of the scope of s 39(2) but nevertheless does not embrace the current matter, it is appropriate to set out what His Honour said in that case at p 264:-17. The test for the application of s 39(2) has sometimes been described as whether the function of a council was at the heart of the matter which is the subject of the appeal (see for example North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 66 LGRA 352 at 368 and the discussion of authorities in Gibson v Mosman Municipal Council (2001) 114 LGERA 416).
- My impression of s 39(2) by its language and apparent purpose in the scheme of the Act is that it was intended that the Land and Environment Court be placed fully in the shoes of a council at the time an application is lodged. This impression derives, in part, from the use of the past tense in the word “had”, and the fact that s 39(3) of the Land and Environment Court Act directs that an appeal to the Land and Environment Court shall be by way of “rehearing”. The result of this interpretation is that all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval.
19. Notwithstanding the broad compass of the last sentence, Mr Robertson still contends that the council’s power to consent to an amendment is not exercised when “considering the application”, but in determining whether the applicant should be permitted to alter the application, that is, to re-make the application.
20. In replying to a succinct submission on behalf of the applicant, which relies upon the proposition that s 39(2) of the Court Act invests the Court, in hearing and disposing of a development appeal, with the power conferred upon the consent authority by cl 55 of the Regulation, Mr Robertson argues that the present application to amend the plans is merely an attempt to appeal the decision by the council to refuse the earlier application for amendment. He returns to the question whether the Court is the consent authority, or whether it is merely exercising the consent authority’s powers and performing its duties for the purpose only of reviewing the consent authority’s decision.
21. Mr Robertson makes it clear that it is not his submission the Court has no power to determine, on an appeal, that consent should be granted to the development application, subject to a condition requiring an amendment to the proposed development. He recognises that such a condition is expressly authorised by s 80A(1)(g) of the Environmental Planning and Assessment Act 1979 but only to the extent that it “modifies details of the development the subject of a development application” .
The applicant’s response
22. The applicant asserts that the combined effect of s 39(2) of the Court Act and cl 55 of the Regulation gives the Court a wide power to accept the amendment of a development application.
Does the Court have power to amend a development application following the lodgement of an appeal
24. In delivering reasons for judgment in Ervin Mahrer, Bignold J comprehensively reviewed the authorities and carefully analysed the relationship between s 39(2), in particular, as well as s 68 of the Court Act and cl 55 of the Regulation. After referring to the decisions of Cowdroy J in Ross Karp Pty Limited v Randwick City Council (1999) 106 LGERA 397, the Chief Judge in Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261 (including two decisions referred to by Her Honour, namely Willoughby Municipal Council v Manchil Pty Limited (1974) 29 LGRA 303 and R v Shanahan and Others; Ex parte Northern Territory Planning Authority (1984) 54 LGERA 255) and a later ex tempore decision by Cowdroy J in Basemount Pty Limited v Baulkham Hills Shire Council [2001] NSWLEC 95, unreported, His Honour made the following finding:-23. It is interesting to note that although the applicant’s submissions refer to the decision of Bignold J in Ervin Mahrer and Partners v Strathfield Council [No 2] (2001) 115 LGERA 259, Mr Robertson makes no comment in respect of that decision.
83. The following basal propositions may, I think, legitimately be derived from the foregoing discussion—
- (i.) the Court’s jurisdiction is relevantly enlivened by an appeal brought pursuant to the EP&A Act, s 97 , such an appeal encapsulating the following jural facts—
- (a) an appeal to the Court brought by an applicant;
(b) who is dissatisfied with the determination of a consent authority;
(c) made with respect to the applicant’s development application; and
84. My conclusion that cl 55 of the Regulation is included in the powers relevantly available to the Court “in hearing and disposing of an appeal” necessarily involves a finding of the satisfaction or fulfilment of the second of the two conditions essential for the operation of the LEC Act, s 39(2) earlier postulated, ie the power conferred by cl 55 of the Regulation was relevantly available to the Council when it was considering the Applicant’s development application.
85. However, this finding is arrived at, not without some difficulty, because it is to be recalled that the relevant power conferred upon a consent authority is not the power to amend a development application, but the power to agree (or not to agree) to an amendment made by the applicant. Accordingly, absent any such proposed amendment by the applicant, the question arises as to whether there is any relevant power vested in the consent authority. In the present case, where the amendment has been proposed for the first time by the Applicant only after it had appealed the Council’s determination of its development application (being relevantly a deemed refusal of consent by virtue of the EP&A Act s 82), it is an obvious fact that the relevant power conferred by cl 55 of the Regulation lay dormant throughout the period that the development application was lodged with the Council until, by virtue of the EP&A Act, s 82, it was deemed to have been determined by the Council refusing development consent.
86. The question that arises is whether, in the light of these facts, it can be said that the Council relevantly possessed the power conferred by cl 55 of the Regulation in respect of the Applicant’s development application, when factually the power lay dormant. After some hesitation, I think that the question can be answered affirmatively. The power conferred by cl 55 of the Regulation upon a consent authority is, by its nature, only a responsive power in the sense that it is only enlivened by an applicant seeking to amend the development application.
87. Nonetheless, the power, albeit lying dormant, is possessed by a consent authority, and it is possession of the power, rather than its activation or exercise, which is relevant to the operation of the LEC Act, s 39(2).
88. Since the power was relevantly possessed by (or vested in) the Council in respect of the Applicant’s development application, albeit unactivated because the Applicant had not sought to amend the development application before it was determined, it is likewise relevantly available to the Court by virtue of the LEC Act, s 39(2) and where, as in the present case, the power has been activated by virtue of the Applicant’s proposed amendments to its development application, the Court in hearing and disposing of “the appeal”, by itself determining in the exercise of original jurisdiction whether or not to grant development consent, may exercise the available power conferred by cl 55 of the Regulation to agree (or not to agree) to the amendment of the development application.
89. In so concluding, I do not find it necessary to delve deeply into the power conferred upon the Court by the LEC Act, s 39(2) which has been much discussed and expounded in many decided cases. Just a few days ago, in his judgment in Gibson v Mosman Municipal Council (2001) NSWLEC 134 Talbot J cited some 21 reported cases and his judgment contains a helpful survey of many of them.
90. What emerges from the decided cases is that they have tended to focus attention upon the concluding words of s 39(2), namely “had in respect of the matter the subject of the appeal”, as providing the solvent to the question whether a particular power is available to the Court, in any given case.
91. In McDougall v Warringah Shire Council (1993) 80 LGERA 151, which contains the most extensive discussion and exposition of s 39(2) to be found in the decided cases, Kirby P (as he then was) held at 154 the concluding words of the statutory provision to be “wide and ambiguous” and at 161 to be “words of extremely broad connection and wide denotation”. His own impression, initially expressed at 157 and sustained in his conclusions at 161 and 162, was that “it was intended that the Land and Environment Court be placed fully in the shoes of a council at the time an application is lodged”.
92. In respectfully adopting Kirby P’s interpretive approach, it would be appropriate to conclude (as I do) that “the matter the subject of the appeal” is relevantly the Applicant’s development application seeking development consent for the proposed development, recognising that a wider interpretation is possible, namely the “proposed development” cf Ross v Town and Country Planning Appeal Board at 220, where Cooke J suggested, of a similar provision in the New Zealand town planning legislation, that “the matter” was “the land” comprising the development site.
93. For all the foregoing reasons, I hold that the Court, by virtue of the LEC Act, s 39(2) is invested with the power conferred by cl 55 of the Regulation to agree (or not to agree) to the Applicant’s proposed amendment to development application as applied for in the Applicant’s Notice of Motion.
25. The Court has not been persuaded that the fine distinction between the power to consider the application and the so-called administrative function antecedent to the exercise of the power now raised by the council in this matter can be maintained to the extent necessary that would justify the Court not following or even distinguishing the decision by Bignold J in Ervin Mahrer. Bignold J had no difficulty in applying the broad approach taken by Kirby P in McDougall that the Court be placed fully in the shoes of the council “at the time an application is lodged” . In my view, nothing turns on the question of whether the appeal is in respect of a deemed or actual refusal of the development application. There is no cause to elaborate beyond the comprehensive analysis and reasons given by Bignold J in order to hold that the Court by virtue of s 39(2) of the Court Act is invested with the power conferred by cl 55 of the Regulation.
Whether the power is available in the circumstances of the case
26. Once again, the respondent raises the sceptre of the administrative difficulties raised by the recent amendments made to the Regulation, which introduced procedures relating to development applications which confer additional rights and obligations on a council in order to improve the efficiency of processing development applications and, presumably, to ensure the consent authority, the applicant and those entitled to participate in the process are fully informed. The Court is not persuaded that these changes justify divergence from the course the Court has heretofore taken in dealing with amendments made to plans, and hence development applications, following the lodgement of an appeal. So far as my experience extends, the Court has been able to facilitate the opportunity for the council to fulfil its administrative and notification obligations by giving leave to make amendments on conditions which facilitate that being done.
27. Finally, the council claims that the relevant power pursuant to cl 55, was exercised by it when the same proposed amendments were rejected by it in November last year. In those circumstances it is alleged the council is functus officio because the power to consent to the amendments sought has been exercised and the repository of the power no longer has any function in relation to the development application. Accordingly, the power of amendment is not a power which the council “had” in the relevant sense because it was exhausted. It is not submitted that the power to consent pursuant to cl 55 is incapable of exercise from time to time but rather that it is not a power that may be exercised after the council has determined the development application. It is suggested that cl 55 contemplates one particular decision by the council which finally disposes of the question of consent to any amendment or variation.
28. The Court has some difficulty in understanding this submission. If it is correct that whilever the final determination of the development application is extant the council may consent to an amendment of the application, then the same position must surely prevail following an appeal which has the effect of suspending the final determination until the Court delivers judgment. Furthermore, the Court is not persuaded that the position should be regarded differently simply because the applicant now seeks to rely upon the same set of amended plans. It is true that cl 55, on a strict reading, contemplates a particular decision by the council which disposes of the question of agreement to a particular amendment or variation. Nevertheless, if it is right, as the Court has held, that s 39(2) of the Court Act enlivens the Courts power to act in the shoes of the council for the purposes of cl 55 after the council has become functus officio in respect of the development application before it then it must be open for the Court to re-address whether an agreement should be forthcoming in respect of the amended plans having regard to the circumstances at the time the amended plans are re-submitted. The Court only assumes this power if and when the applicant re-activates the process by making a fresh approach by seeking leave of the Court pursuant to r 16(b1). It is now for the Court to consider whether, under current circumstances, the applicant should be permitted to rely on the amended plans. It is worth noting that the reason given by the council for requesting the amended plans in November 2001 explained in paragraph 3 of this judgment had regard to the circumstances prevailing at that time.
Should the power be exercised for the present case
29. The Court has already made a brief reference to the nature of the changes. The Court is satisfied that the amendments fall within the parameters identified in Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147, unreported. The application is not, in truth, a new application. The council will be able to fulfil the obligatory and discretionary administrative functions that arise as a consequence of the Court’s agreement to the amendments if the grant of leave is made subject to appropriate conditions to allow this to occur.
31. The parties are directed to lodge a form of appropriate orders for consideration by the Court within seven days.30. The Court proposes to grant leave for the applicant to rely upon amended plans now exhibited before the Court.
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