Sell and Parker Pty Ltd v NSW Minister for Planning

Case •

[2015] NSWLEC 130

•

30 July 2015

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Sell & Parker Pty Ltd v NSW Minister for Planning [2015] NSWLEC 130
Hearing dates:30 July 2015
Date of orders: 30 July 2015
Decision date: 30 July 2015
Jurisdiction:Class 1
Before: Preston CJ
Decision:

(1)   The proceedings are dismissed.

 (2)   The applicant is to pay the costs of the proceedings of the respondent.
Catchwords:

PRACTICE AND PROCEDURE – motion for summary dismissal of proceedings – appeal regarding State significant development application – competency of appeal – whether any determination of development application – whether letter from respondent constituted notice of determination of the development application by the consent authority – no actual determination of development application – letter did not constitute notice of determination – at the time appeal was commenced development application not taken to have been determined by refusal – no determination of the consent authority against which the applicant could appeal – proceedings dismissed

  COSTS – Court not to make order for costs in Class 1 appeal unless fair and reasonable in the circumstances – whether order for costs fair and reasonable in the circumstances – question of competency of appeal a question of law preliminary to evaluation of merits of application and potentially and actually determinative of proceedings – respondent made offer to applicant prior hearing to discontinue proceedings with no costs order – sufficiently clear that there was no notice of determination that could found an appeal – fair and reasonable to order applicant to pay costs of the respondent
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 78A, 81, 82(1), 89C, 89D, 89E, 89F, 89H, 97
Environmental Planning and Assessment Regulation 2000 cll 51, 83-85B, 85A, 100, 113(1)
Land and Environment Court Rules 2007 rr 3.7(2), 3.7(3)(a)
Category:Principal judgment
Parties: Sell & Parker Pty Ltd (Applicant)
NSW Minister for Planning (Respondent)
Representation:

Counsel:
Mr P N Lalich (Solicitor) (Applicant)
Mr A Shearer (Barrister) (Respondent)

  Solicitors:
Allens Linklaters (Applicant)
NSW Department of Planning & Environment (Respondent)
File Number(s):10416 of 2015
Publication restriction:No

Judgment

  1. Sell & Parker Pty Ltd wish to expand a waste metal recovery processing and recycling facility (‘the facility’) on land at 23-43 Tattersall Road, Kings Park. The land includes the site where Sell & Parker currently operate a waste metal facility at 45 Tattersall Road and the adjoining site to the east at 23-43 Tattersall Road.

  2. The facility is for a class of development that has been declared to be State significant development under s 89C(2) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) and State Environmental Planning Policy (State and Regional Development) 2011 (cl 8(1)(b) and item 9 of sch 1). The Minister for Planning is the consent authority for State significant development (s 89D(1) of the EPA Act).

  3. On 17 March 2014, Sell & Parker lodged with the Department of Planning and Infrastructure on behalf of the Minister for Planning as consent authority a development application seeking consent to carry out the facility (‘the first DA’). The first DA was, as required by s 78A(8A) of the EPA Act, accompanied by an environmental impact statement.

  4. After the lodging of the first DA and the placing of it on public exhibition, enquiries were made with Blacktown City Council (‘the Council’) and various governmental agencies. The Department liaised with Sell & Parker about the answers to those enquiries.

  5. In response, on 31 July 2014, Sell & Parker lodged a revised environmental impact statement dated 30 July 2014 (‘the revised EIS’) to accompany the first DA. On 26 August 2014, the revised EIS was sent to the Council and governmental agencies and, from 27 August 2014 to 10 October 2014, the first DA and revised EIS were publicly exhibited (as required under s 89F of the EPA Act and cll 83-85B of the Environmental Planning and Assessment Regulation 2000 (‘EPA Regulation’)).

  6. On 8 January 2015, following the receipt of submissions during the exhibition period, Sell & Parker provided the Department with its response to the submissions (as required by cl 85A(2) of the EPA Regulation).

  7. On 4 February 2015, Sell & Parker commenced proceedings in this Court by filing a Class 1 application to appeal against the deemed refusal of the first DA. On 25 March 2015, the Minister filed a motion for the summary dismissal of the proceedings on the basis that the appeal was incompetent. The Minister had not yet made a determination of the first DA under s 89E(1) of the EPA Act, against which Sell & Parker could appeal under s 97(1) of the EPA Act.

  8. Furthermore, although by operation of s 82(1) of the EPA Act and cl 113(1)(c) of the EPA Regulation, the Minister was taken to have determined the first DA by refusing consent 90 days after it was lodged (ie. by 16 June 2014), Sell & Parker had commenced proceedings seeking to appeal under s 97 of the EPA Act later than six months after the date on which the first DA was taken to have been determined under s 82(1) of the EPA Act (see s 97(1)(b) of the EPA Act). Sell & Parker would have had to have appealed by 16 December 2014, rather than 4 February 2015.

  9. Hence, Sell & Parker could not appeal against any actual determination of the first DA (because there had not been one) and were out of time to appeal against the deemed determination by way of refusal of consent.

  10. As a consequence, on 6 May 2015, Sell & Parker discontinued the proceedings with the consent of the Minister.

  11. Before that happened, however, Sell & Parker had lodged with the Department on 23 April 2015 another application seeking consent to carry out the same development of the facility on the same land (‘the second DA’). The second DA was constituted by a letter from Mecone Pty Ltd (on behalf of Sell & Parker) dated 31 March 2015 and the accompanying documents of the revised EIS dated 30 July 2014 and the response to submissions dated 8 January 2015 that had been provided in relation to the first DA.

  12. The letter referred to the “existing SSD application (SSD 5041) currently being assessed by the Department of Planning and Environment (DP&E)” but said that “this proposed SSD application, which is the subject of this letter, is a new and separate SSD application to that already lodged (SSD 5041)”.

  13. On 7 May 2015, the Department wrote to Sell & Parker asserting that the proposed application was not an application for the purposes of s 78A of the EPA Act. The letter said:

I refer to your letter dated 31 March 2015 and attached documents delivered to the Department on 23 April 2015 (Proposed Application).

Your letter claims to be “a new and separate SSD application” to the application already lodged with the Department in respect of the above facility (SSD 5041) (Existing Application).

However, your Proposed Application relies upon the same environmental impact statement dated July 2014 submitted in connection with the Existing Application. It is made by Sell & Parker, the same person as the Existing Application, and is made in respect of the same development as the Existing Application. As you aware, the Existing Application has not yet been determined and is the subject of continued assessment.

The Department considers that the Environmental Planning and Assessment Act 1979 (NSW) (Act) does not allow a person to make multiple applications for the same development while an application in respect of that development is before a consent authority and has not been determined.

Section 78A of the Act permits a person, subject to the regulations, to “apply to a consent authority for consent to carry out development”. The legislation, together with the regulations, then provides a process for that application to be assessed. By way of the Existing Application, your client has applied to the Minister for consent to carry out the development. There is no scope for it to make a second application for consent to carry out the same development while the Existing Application is under assessment.

Further, clause 50(1)(b) of the Environmental Planning and Assessment Regulation 2000 (NSW) provides that any relevant application must be in the form approved by the consent authority. The Proposed Application has not been made in accordance with the approved form.

In these circumstances, the Department considers that the Proposed Application is not an application for the purposes of s 78A of the Act.

  1. On 14 May 2015, Sell & Parker commenced these proceedings by filing a Class 1 application to “appeal against refusal (dated 7 May 2015) of the Development Application contained in the letter dated 31 March 2015”.

  2. On 1 July 2015, the Minister filed a notice of motion seeking that this appeal be summarily dismissed. Again, the Minister asserts that the appeal is incompetent although for different reasons.

  3. The Class 1 application in terms seeks to appeal against the refusal of the second DA said to have been made on 7 May 2015. The Minister submits firstly that the Department’s letter of 7 May 2015 is not a determination by the Minister as the consent authority of the second DA at all. Nowhere in the letter of 7 May 2015 is there any statement that the Minister has made a determination of the second DA as required under s 89E(1) of the EPA Act. Instead, the Department’s letter asserts what the Department (and not the Minister) considers and this was that the second DA was not an application for the purposes of s 78A of the EPA Act and as a consequence, it is to be implied, will not be determined at all.

  4. The Minister notes that none of the procedures which the EPA Act and the EPA Regulation prescribe before the making of a determination of a development application for State significant development under s 89F of the EPA Act, in considering and determining the development application under s 89H and s 89E of the EPA Act respectively, or after determining the development application including giving notice of the determination to the applicant under s 81 of the EPA Act, have been undertaken.

  5. The Minister submits, therefore, that there is no actual determination of the second DA against which Sell & Parker could appeal under s 97(1)(a) of the EPA Act.

  6. The Minister submits secondly that the Department’s letter of 7 May 2015 is not a notice of the determination by the Minister of the second DA given in accordance with the regulations. The right of appeal under s 97(1)(a) of the EPA Act is triggered by the applicant having “received notice, given in accordance with the regulations, of the determination of that application” (being the applicant’s development application that has been determined by the consent authority).

  7. The notice referred to is the notice that the consent authority is required by s 81(1) of the EPA Act to give to the applicant in accordance with cl 100 of the EPA Regulation. That regulation prescribes the information that the notice of determination of a development application must contain. The Minister submits that the Department’s letter of 7 May 2015 does not purport to be a notice of determination under s 81(1) of the EPA Act and does not contain the information required by cl 100 of the EPA Regulation.

  8. The Minister notes that Sell & Parker’s proceedings do not purport to be an appeal under s 97(1)(b) of the EPA Act against any deemed refusal of the second DA, as the timeframe for such an appeal had not accrued when Sell & Parker commenced the appeal. The second DA was lodged on 23 April 2015. The earliest date on which that application could be taken to be determined by refusing consent was 90 days afterwards (22 July 2015). Sell & Parker commenced the proceedings on 14 May 2015, well prior to this date.

  9. The Minister also submits that the appeal was incompetent because the second DA was not an application under s 78A of the EPA Act and hence could not be the subject of a determination by the Minister as consent authority under s 89E of the EPA Act. However, the Minister conceded that this argument is not determinative of the present motion and need not be decided.

  10. Sell & Parker contested the Minister’s motion and they submit that the Department’s letter of 7 May 2015 did constitute notice of a determination of the second DA by refusal of consent. Sell & Parker submit:

The 7 May Letter demonstrates a clear intention on the part of the Minister to never grant consent to the Second Proposed DA. The only way the Court can interpret the 7 May Letter consistently with the Minister’s obligation to determine the Second Proposed DA is by treating the 7 May letter as a determination of the Second Proposed DA by way of refusal.

  1. Sell & Parker submit that the 7 May 2015 letter is not a rejection of the second DA. A consent authority may reject a development application in the limited circumstances set out in cl 51(1) and (2) of the EPA Regulation. If an application is rejected, it is taken for the purposes of the EPA Act never to have been made (cl 51(3) of the EPA Regulation). However, the Department’s letter of 7 May 2015 neither expressly nor impliedly rejects the second DA on any ground available under cl 51 of the EPA Regulation.

  2. Sell & Parker therefore submit that the Minister as consent authority had a duty to consider and determine the second DA. The Department’s letter of 7 May 2015 should be construed as a constructive determination of the second DA by way of refusal.

  3. I find that the appeal is incompetent, as at the time the proceedings were commenced there was no determination actually made or taken to be made, which could be appealed against under s 97(1)(a) or (b) of the EPA Act. The Minister as consent authority had not made an actual determination under s 89E of the EPA Act of the second DA and, as the period prescribed by cl 113(1)(c) of the EPA Regulation had not expired, the Minister could not be taken under s 82(1) of the EPA Act to have determined the application by refusing consent.

  4. The Department’s letter of 7 May 2015, on a proper construction, does not give notice of any determination by the Minister as consent authority of the second DA. Indeed, by asserting the Department’s view that the second DA is not an application for the purposes of s 78A of the EPA Act, the letter implies that there will not be any determination of it. For this reason, the letter does not purport to be a notice of determination given under s 81(1) of the EPA Act and in accordance with cl 100 of the EPA Regulation.

  5. Hence, at the time the proceedings were commenced there was no “determination of a consent authority with respect to” the second DA with which Sell & Parker could be dissatisfied and against which they could appeal under s 97(1) of the EPA Act.

  6. The Minister’s motion should therefore be upheld and the proceedings dismissed.

  7. The Minister seeks an order for costs on two bases. First, the Minister submits an order for costs is fair and reasonable in the circumstances. Under r 3.7(2) of the Land and Environment Court Rules 2007, “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”.

  8. One of the circumstances in which the Court might consider the making of a costs order to be fair and reasonable is:

(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 (r 3.7(3)(a)).

  1. The Minister submits that this circumstance is applicable. The question of the competency of the appeal was a question of law, preliminary to and not involving any evaluation of the merits of the application the subject of the proceedings and potentially and actually determinative of the proceedings.

  2. Secondly, the Minister made an offer to Sell & Parker before the hearing of the Minister’s motion that Sell & Parker discontinue the proceedings with no order as to costs. The basis of the offer was that:

There is no notice of determination on which to ground an appeal under s 97(1)(a) of the Act. The Department advised your client in its letter of 7 May 2015 that the proposed application was not considered to be an application for the purposes of s 78A of the Act and was not in the approved form. Therefore no application had been lodged, let alone determined.

  1. The Minister submits that the fact that there was no notice of determination on which to ground an appeal was the basis of the Court’s decision to uphold the Minister’s motion.

  2. Sell & Parker submit that no order for costs should be made. Sell & Parker submit that the circumstances are not such as would justify departure from the usual rule in r 3.7(2) that there be no order as to costs. Sell & Parker submit that the circumstances leading up to this appeal, including the continued non-determination of the first DA, the discontinuance of the first appeal because of the expiry of the period for appeal against the deemed refusal of the first DA, Sell & Parker’s lodging of the second DA, and the Department’s letter of 7 May 2015, provide an explanation and justification for Sell & Parker commencing the second appeal.

  3. Sell & Parker also submit that the 7 May 2015 letter was not plain and could be interpreted as a determination by way of refusal of the second DA.

  4. I consider that an order for costs is appropriate in the circumstances, essentially for the two reasons given by the Minister. Whilst Sell & Parker’s actions in lodging the second DA and commencing the second appeal are understandable, they do not provide sufficient rebuttal of the Minister’s arguments for a costs order. I consider that the 7 May 2015 letter is sufficiently clear and does not constitute a notice of determination of the second DA. It could not found an appeal under s 97(1)(a) of the EPA Act. Time for appeal against a deemed refusal had not arisen at the time the proceedings were commenced.

  5. I therefore make the following orders:

  1. The proceedings are dismissed.

  2. The applicant is to pay the costs of the proceedings of the respondent.

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Decision last updated: 14 August 2015

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