Skyton Holdings No 5 Pty Ltd v Strathfield Municipal Council

[2023] NSWLEC 61

Land and Environment Court

New South Wales

Medium Neutral Citation:

Skyton Holdings No 5 Pty Ltd v Strathfield Municipal Council [2023] NSWLEC 61

Hearing dates:

4 May 2023

Decision date:

07 June 2023

Jurisdiction:

Class 1

Before:

Pain J

Decision:

See below in [50]

Catchwords:

QUESTION OF LAW – chair of local planning panel not appointed by Minister administering Environmental Planning and Assessment Act 1979 (NSW) as approved independent person – validity of decision of planning panel to refuse development consent upheld in light of s 52(1) of Interpretation Act 1987 (NSW) – no contrary intention in Environmental Planning and Assessment Act 1979 (NSW) to exclude application of s 52(1) of Interpretation Act 1987 (NSW) in circumstances of case

Legislation Cited:

Administrative Decisions Tribunal Act 1997 (NSW), s 4.3

Education Act 1902 (UK), Sch 1 Pt B cl 3

Environmental Planning and Assessment Act 1979 (NSW), ss 2.17, 2.18, 2.19, 2.20, 4.16, 9.5, 9.7 Sch 2 Pt 1 cl 1, Pt 4 cll 11, 12, 13, 14, 16, 17, 18, Pt 5 cll 21, 22, 23, 24, 25

Interpretation Act 1987 (NSW), ss 5, 50, 52

Land and Environment Court Act 1979 (NSW), s 37

Legislation Act 2001 (ACT), s 212

Local Government Act1993 (NSW), s 355, 368, 371, 375A

Medical Practitioners Act 1938 (NSW)

Medical Practitioners (Amendment) Act 1987 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 28.2, Sch 1 Col 2

Cases Cited:

Attorney General of NSW v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261

Ball v Pearsall (1987) 10 NSWLR 700

Carlewie Pty Ltd v Roads and Maritime Services (2018) 98 NSWLR 233

Edelsten v Richmond [1989] NSWCA 71

GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503

Harries v Crawfurd [1918] 2 Ch 158

Hill v Council of the Law Society of ACT [2019] ACTSC 79

Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2015] NSWLEC 125

Levenstrath Community Association Incorporated v Council of the Shire of Nymboida (1999) 105 LGERA 362; [1999] NSWSC 989

Melrose Farm Pty Ltd t/as Milesaway Tours v Milward (2008) 175 IR 455; [2008] WASCA 175

Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Steuart v Oliver (No 2) (1971) 18 FLR 83

Category:

Procedural rulings

Parties:

Strathfield Municipal Council (Applicant on motion)
Skyton Holdings No 5 Pty Ltd (Respondent on motion)

Representation:

Counsel:
D T Miller SC with S J Thomson (Applicant on motion)
C Gough (Respondent on motion)
C Novak (Amicus curiae)

Solicitors:
Strathfield Municipal Council (Applicant on motion)
Storey & Gough Lawyers (Respondent on motion)

File Number(s):

2022/320290-002

JUDGMENT

1. Skyton Holdings No 5 Pty Ltd (the Respondent on the motion) has commenced a Class 1 appeal against the decision of the Strathfield Local Planning Panel (the Panel) to refuse development consent for DA2021.272 pursuant to s 4.16(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Separate questions of law have arisen in this proceeding because Strathfield Municipal Council (the Council) concedes that when the decision to refuse was made on 6 October 2022 (the Decision) the Panel was not correctly constituted under s 2.18 of the EPA Act.

2. The Respondent on the motion did not make any submissions on the separate questions of law. Ms Novak of counsel provided substantial assistance as amicus curiae, who I appointed in light of the absence of a contradictor on a matter of importance for the administration of the planning system in the Strathfield local government area and beyond.

Further Amended Notice of Motion

3. The Council’s Further Amended Notice of Motion filed in Court on 4 May 2023 and relied on with leave provides:

ORDERS SOUGHT

1 The Court orders that the proceedings be referred to a Judge of the Court to determine the following separate questions of law:

Noting the:

1. concession by the Respondent that the Strathfield Local Planning Panel (Panel) had a chairperson who was not an “approved independent person” by the Minister under s 2.18(2)(a) and (4) of the Environmental Planning & Assessment Act 1979 (EPA Act) at the time the Panel determined to refuse the development application the subject of this appeal (the Decision); and

2. facts set out in the affidavits by Melissa Mallos and dated 24 March 2023, 31 March 2023, and 24 April 2023 filed in support of this Motion,

does s 52 of the Interpretation Act 1987 operate, and/or does the common law de facto officer doctrine apply, such that that the Decision is not invalid at law?

2. The Court notes the Respondent’s undertaking to pay the reasonable costs incurred by the Applicant in relation to this motion.

Legislation

Uniform Civil Procedure Rules 2005 (NSW)

4. A separate question is enabled by r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provides as follows:

Part 28 Separate decision of questions and consolidation

…

Division 2 Separation of questions

28.2 Order for decision

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

5. Rule 28.2 applies in Land and Environment Court of NSW Class 1 proceedings pursuant to r 1.5 and Sch 1 Col 2.

Environmental Planning and Assessment Act 1979 (NSW)

6. The relevant sections of the EPA Act provide as follows:

Part 2 Planning administration

…

Division 2.5 Local planning panels

2.17 Constitution of local planning panels

(1) A council may constitute a single local planning panel for the whole of the area of the council.

(2) The following councils must constitute a single local planning panel for the whole of the area of the council—

(a) the council of an area that is wholly within the designated Sydney districts,

…

(6) A local planning panel is subject to any directions of the Minister under section 9.1.

(7) A local planning panel is not subject to the direction or control of the council, except in relation to any matter relating to the procedure of the panel (or to the time within which it is to deal with a matter) that is not inconsistent with any directions of the Minister under section 9.1.

2.18 Members of local planning panels

(1) The members of a local planning panel are to be appointed by the relevant council.

(2) Each local planning panel is to comprise (subject to this section) the following 4 members—

(a) an approved independent person appointed as the chairperson of the panel with relevant expertise that includes expertise in law or in government and public administration,

(b) 2 other approved independent persons with relevant expertise,

(c) a representative of the local community who is not a councillor or mayor.

(3) A person is not eligible to be a member of a local planning panel constituted by a council if the person is—

(a) a councillor of that or any other council, or

(b) a property developer within the meaning of section 53 of the Electoral Funding Act 2018, or

(c) a real estate agent within the meaning of the Property, Stock and Business Agents Act 2002.

However, a person is not ineligible to be a member of a local planning panel merely because the person carries on the business of a planning consultant.

(4) For the purposes of this section, an approved independent person is an independent person approved by the Minister for appointment to the local planning panel or a person selected from a pool of independent persons approved by the Minister for appointment to the local planning panel. The Minister may approve different pools of independent persons.

…

(7) Relevant expertise for the purposes of this section is expertise in at least one area of planning, architecture, heritage, the environment, urban design, economics, traffic and transport, law, engineering, tourism or government and public administration.

2.19 Functions of local planning panels

(1) A local planning panel constituted by a council has the following functions—

(a) the specified functions of a council as a consent authority under Part 4 that are conferred on it under this Act,

(b) to advise the council on any planning proposal that has been prepared or is to be prepared by the council under section 3.33 and that is referred to the panel by the council,

(c) to advise the council on any other planning or development matter that is to be determined by the council and that is referred to the panel by the council.

(2) The Minister may give directions to councils under section 9.1 (either to particular councils or to councils generally) on the planning proposals that are required to be referred to a local planning panel for advice.

(3) This section does not limit the functions that may be exercised by a local planning panel under this Act.

2.20 Miscellaneous provisions relating to local planning panels

(1) Schedule 2 contains provisions with respect to the members and procedure of local planning panels.

(2) A local planning panel is required to give written reasons for its decisions and make them publicly available on a website of or used by the panel. A decision is not invalid merely because of a failure to give or publish the reasons or all of the reasons for the decision.

(3) The regulations may make provision for or with respect to the following—

(a) the functions conferred under this Act on local planning panels, including the procedures of panels in exercising their functions,

(b) without limiting paragraph (a), providing that parties are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances,

(c) the provision of information or reports by councils with respect to the exercise of functions by local planning panels.

(4) The council is to provide staff and facilities for the purpose of enabling a local planning panel to exercise its functions.

(5) The council is to monitor the performance of local planning panels constituted by the council.

(6) A council that has constituted a local planning panel must provide a report to the Planning Secretary, each year or other period directed by the Planning Secretary, as to the following—

(a) whether a local planning panel had been constituted by the council during the reporting period,

(b) the matters referred to the panel in the reporting period,

(c) the persons appointed to the panel,

(d) any other matters relating to the exercise of functions by the panel as directed by the Planning Secretary.

(7) Legal proceedings by or against a local planning panel are to be taken in the name of the panel and not by or against the members of the panel.

(8) A local planning panel may delegate any function of the panel under this or any other Act (other than this power of delegation) to the general manager or other staff of the council. Section 381 of the Local Government Act 1993 does not apply to any such delegation.

(9) For the avoidance of doubt, a member of a local planning panel is a public official for the purposes of the Independent Commission Against Corruption Act 1988.

…

Schedule 2 Provisions relating to planning bodies

Part 1 Preliminary

1 Definitions

In this Schedule—

appoint means nominate in relation to a council nominee of a Sydney district or regional planning panel.

member means the chairperson, council nominee or other member of a Planning body.

planning body means any of the following—

…

(d) a local planning panel,

…

Part 4 Provisions relating to members of planning bodies

11 Terms of office of members

(1) A member of a planning body holds office, subject to this Act and the regulations, for such period (not exceeding 3 years) as is specified in the member’s instrument of appointment.

(2) That period may be determined by reference to the occurrence of a specified event or the completion of the exercise of particular functions of the planning body.

(3) A member is eligible (if otherwise qualified) for re-appointment.

(4) A member of the Independent Planning Commission may not hold office as a member for more than 6 years in total.

(4A) Despite any other provision of this clause, the Minister may, by instrument in writing, extend the term of appointment of a member of the Independent Planning Commission for the purpose of enabling the member to complete a function as a member after the time that the term would otherwise end.

(5) A State member of a Sydney district planning panel may not hold office as a member of that panel for more than 9 years in total.

(6) A member of a local planning panel may not hold office as a member of that panel for more than 6 years in total.

12 Full-time or part-time office

(1) The Minister may appoint a member of the Independent Planning Commission on either a full-time or part-time basis. The Minister may change the basis of the appointment during the member’s term of office.

(2) The office of a member of any other planning body is a part-time office.

13 Deputy chairperson—Sydney district or regional planning panels

Sydney district planning panel or a regional planning panel may elect a deputy chairperson from among its State members (either for the duration of the person’s term of office as a member or for a shorter term).

(2) The deputy chairperson vacates office as deputy chairperson if he or she—

(a) is removed from that office by the panel, or

(b) resigns that office by instrument in writing addressed to the panel, or

(c) ceases to be a member of the panel.

14 Remuneration of members

(1) A member of a planning body (other than a full-time member of the Independent Planning Commission) is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

(2) A full-time member of the Independent Planning Commission is entitled to be paid—

(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and

(b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of the member.

…

16 Removal from office of members

(1) The Minister may remove a member of a planning body (other than a local planning panel) from office at any time for any reason and without notice. However, the Minister must provide a written statement of the reasons for removing the member from office and make the statement publicly available.

(2) The Minister may remove a member of a planning body from office if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the removal of the member from office because of corrupt conduct by the member.

(3) In the case of a council nominee of a Sydney district or regional planning panel, the applicable council may remove the member from office at any time for any reason and without notice. However, the general manager of the applicable council must provide a written statement of the reasons for removing the council nominee from office and make the statement publicly available.

(4) In the case of a member of a local planning panel, the applicable council may remove the member from office at any time for any reason and without notice. However, the general manager of the applicable council must provide a written statement of the reasons for removing the member from office and make the statement publicly available.

17 Vacancy in office of member

(1) The office of a member becomes vacant if the member—

(a) dies, or

(b) completes a term of office and is not re-appointed, or

(c) resigns the office by instrument in writing addressed to the Minister or, in the case of a council nominee of a Sydney district or regional planning panel or a member of a local planning panel), addressed to the applicable council, or

(d) is removed from office under this or any other Act, or

(e) is absent from 3 consecutive meetings of the planning body of which reasonable notice has been given to the member personally or by post, except on leave granted by the planning body or unless the member is excused by the planning body for having been absent from those meetings, or

(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

(g) becomes a mentally incapacitated person, or

(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or

(i) in the case of a member of a Sydney district planning panel, a regional planning panel or a local planning panel—becomes a councillor, property developer or real estate agent and for that reason is not eligible to be appointed as a member of the panel.

(2) If the office of a member becomes vacant, a person may, subject to this Act and the regulations, be appointed to fill the vacancy.

18 Chairperson—vacation of office

(1) If the chairperson of a planning body is appointed by the Minister or the Planning Secretary from among a number of members of the body, the person vacates office as chairperson if he or she—

(a) is removed from the office of chairperson by the Minister or the Planning Secretary, or

(b) resigns the office of chairperson by instrument in writing addressed to the Minister or the Planning Secretary.

(2) A person vacates office as chairperson of a planning body if the person vacates office as a member of the body.

…

Part 5 Provisions relating to procedure of planning bodies

21 General procedure

(1) The procedure for the calling of meetings of a planning body and for the conduct of business at those meetings is, subject to this Act, to be as determined by the planning body.

(2) Subject to this clause, a planning body is not bound by the rules of evidence.

(3) Nothing in this Schedule derogates from any law relating to Crown privilege.

22 Quorum

The quorum for a meeting of a planning body is a majority of its members for the time being.

23 Presiding member

(1) The chairperson or, in the absence of the chairperson, the deputy chairperson (if any) or a person elected by the members is to preside at a meeting of a planning body.

…

(3) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.

24 Voting

A decision supported by a majority of the votes cast at a meeting of a planning body at which a quorum is present is the decision of the planning body.

25 Meetings

…

(2) A planning body (other than the Independent Planning Commission) is required to conduct its meetings in public.

(3) A planning body is required to record meetings conducted in public (whether an audio/video record, an audio record or a transcription record). The record is required to be made publicly available on the website of or used by the planning body.

(4) A planning body may carry out any of the planning body’s business at a meeting held wholly or partly by audio link, audio visual link or other electronic means, but only if a member who speaks on a matter before the meeting or the part of the meeting can be heard by the other members.

…

Interpretation Act 1987 (NSW)

7. The relevant sections of the Interpretation Act 1987 (NSW) provide as follows:

Part 1 Preliminary

…

5 Application of Act

…

(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

…

Part 8 Statutory bodies

…

52 Proceedings of statutory bodies

(1) Any act or proceeding of a statutory body shall not be called into question merely because of—

(a) any vacancies in the membership of the body,

(b) any defects in the appointment of any members of the body,

(c) any disqualifications of any members of the body,

(d) any minor irregularities in the manner in which any meetings of the body have been convened or conducted, or

(e) the presence or participation at any meetings of the body of any persons not entitled to be present or to participate at those meetings.

(2) This section applies to a statutory body in addition to, and without limiting the effect of, any provision of the Act by or under which the body is constituted.

Evidence

8. The Council read three affidavits of Ms Mallos solicitor affirmed 24 March 2023, 31 March 2023 and 24 April 2023 from which the details of the chronology below in [9] were drawn by the Council.

Chronology

9. The Council’s chronology provides as follows:

Date

Event

Prior to 1 July 2021

Mr Stein KC held the position of Chair of the Strathfield Independent Hearing and Assessment Panel (SIHAP) and later the Strathfield Local Planning Panel (Panel), where necessary with the Minister’s approval

Prior to 1 July 2021

The Minister for Planning and Public Spaces (Minister) advised the Respondent of a different person approved as chair of the Panel for approximately 3 years

About 14 May

2021

Mr Stein KC contacts Council to indicate that he has been approved as chair for other councils’ panels but not for the Panel

14 May 2021

The Department of Planning & Environment (Department) confirms to Council that it intends to approve a different Chair for the Panel, together with two alternates

14 May 2021

Council seeks clarification given that the Minister’s approved Chair for the Panel is General Counsel of a neighbouring council

18 May 2021

Council formally requests the Department to review the Minister’s decision

19 May 2021

The Department indicates that it would revert regarding the Minister’s approved Chair once internal advice had been received

26 May 2021

Mr Stein KC emails Council stating that his last Panel meeting will be held in June 2021

28 May 2021

By this date, the Minister’s approved independent person had declined to become Chair of the Panel, but because there remained two approved alternate Chairs, proposed not to request the Minister appoint a replacement Chair

3 June 2021

Council requests the Department review the decision and Mr Stein KC be reappointed as permanent Chair for the Panel

10 June 2021

An internal Council memorandum notes that “we are currently in negotiations with the Department to re-instate Mr Stein KC as the chair for the [Panel]”. In the interim, it recommends the nomination of Mr Stein KC to Council’s purported “expert list for the [Panel]”

11 June 2021

Council’s Chief Executive, Henry Wong, purported to approve the 10 June 2021 recommendation

15 June 2021

Mr Wong sends a letter to Mr Stein KC ostensibly appointing him as Chair of the Panel

18 June 2021

Mr Stein KC sends a letter to Mr Wong purporting to accept the appointment as Chair, attaching completed a pecuniary disclosure form

24 June 2021

The Department confirms that it does not consider it necessary to approve a replacement Chair

24 June 2021

Mr Wong writes an internal email stating “based on [the Department’s] previous advice, [w]e’ve already appointed [Mr Stein KC]”

From 1 July

2021

Mr Stein KC commences to act as Chair of the Panel without a proper appointment

20 October

2021

The Applicant lodges DA2021.272, the development application the subject of this proceeding

20 December

2021

The date of a deemed refusal of DA2021.272 (if any)

From mid-2022

Council appoints a new General Manager, a new Director of Planning, a new Director of Engineering & Operations, a new Director Corporate & Community, and a new General Counsel

12 September

2022

Emails sent between the Council and the Department confirm that Mr Stein KC was not validly appointed

6 October 2022

The Panel purports to refuse DA2021.272

26 October

2022

The Applicant [the Respondent on the Motion] files the present appeal from the Panel’s purported actual refusal of DA2021.272

15 December

2022

Council writes to the Department and confirms that Mr Stein KC was not lawfully appointed as Chair from 1 July 2021 onwards

15 December

2022

Council’s General Manager, Mr Mamo, writes to Mr Stein KC advising he did not meet the statutory criteria for an “approved independent person” for the purposes of s 2.18 of the Environment Planning and Assessment Act and that he was no longer required as Chair of the Panel

20 December

2022

The date 12 months after a deemed refusal of DA2021.272 (if any)

10. I observe that when this chronology was prepared the Council anticipated that it would be relying primarily on the de facto officer doctrine. By the time of the hearing the Council’s primary case was based on the application of s 52 of the Interpretation Act, which largely requires the application of statutory construction. Some of the events identified in the chronology are relevant to the application of the de facto officer doctrine. As I conclude below in [49] I do not need to consider that doctrine some events in the chronology have little role to play.

Exhibits

11. The Council tendered the following exhibits:

1. Letter from Ms Hoult principal legal officer Department of Planning and Environment (the Department) to Ms Mallos general counsel of the Council dated 14 April 2023 that stated the Department’s position was that as the Council was taking an active role it would not seek to be heard on this motion (Ex A);

2. Email from Mr Mamo General Manager of the Council to Ms Mallos dated 30 January 2023 forwarding an email chain between Mr Stein KC and Mr Mamo dated 16 December 2022 and 26 January 2023 about Mr Stein KC’s qualifications and the validity of his appointment (Ex B); and

3. Minutes of the Panel meeting held on 6 October 2022 recording the unanimous Decision of Mr Stein KC, Mr Vergotis, Ms Warton and Ms Inglis to refuse and the reasons for refusal of DA2021.272 (Report No. 30) (Ex C).

12. It is agreed Mr Stein KC was not qualified for appointment as a chairperson of the Panel by reason of the fact that he was not an ‘approved [by the Minister] independent person’ pursuant to s 2.18(4) of the EPA Act [emphasis added]. The unfortunate circumstances that have arisen are a result of actions by the then General Manager of the Council.

13. The parties accept that Mr Stein KC was otherwise an independent person for the purposes of s 2.18(4). Mr Stein KC previously held the position of chair of the Panel from 1 March 2018 to 31 June 2021. The Minister for Planning and Public Spaces approved Mr Stein KC as chairperson of the Waverley Local Planning Panel for the period 1 July 2021 to 29 February 2024 in an undated letter annexed to the affidavit of Ms Mallos dated 31 March 2023. It is agreed that Mr Stein KC was a member of the Mosman and Cumberland Local Planning Panels as at July 2020.

Questions for Determination

14. Under s 52 of the Interpretation Act an act of a statutory body cannot be challenged ‘merely because of’ any defects in the appointment of a member (subs (1)(b)), any disqualifications of any members of the body (subs (1)(c)) and/or the participation of a person not qualified to be present (subs (1)(e)). I note that Ms Novak made submissions on whether the circumstances of the case meet the description of subs (1)(b) concerning defects in appointment. Ms Novak agreed that subs (1)(c) would apply. As it is agreed that s 52 does apply I do not need to finally resolve whether one or more of the subsections applies in these particular circumstances. The questions that arise for determination are:

1. Is the Panel a statutory body as referred to in s 52 of the Interpretation Act?

2. If yes, was the Panel’s Decision invalid despite s 52(1) of the Interpretation Act due to other provisions in the EPA Act suggesting to the contrary as provided by s 5(2) of the Interpretation Act?

3. If neither (1) or (2) give rise to validity of the Panel Decision, does the common law de facto officer doctrine apply to render the Panel’s Decision valid?

15. In Melrose Farm Pty Ltd t/as Milesaway Tours v Milward (2008) 175 IR 455; [2008] WASCA 175 at 475 Le Miere J stated:

The de facto officer doctrine is a principle of the common law that where an office exists but the title to it of a particular person is defective, the acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office: GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 525; 17 IR 134 at 151 (McHugh JA). The doctrine requires that there be a de jure office: that is, one that exists in law, and that the challenged actions be within the powers of that office. The official must have the reputation of being the officer he assumes to be.

1. Is the Panel a statutory body?

16. The first question is whether the Panel is a statutory body as referred to in s 52 of the Interpretation Act.

17. As the Council advised, there is no definition of statutory body in the Interpretation Act. Statutory corporations are separately defined in s 50. Section 52(2) makes it plain that a statutory body is an entity of legislative creation. The phrase ‘by or under which’ in s 52(2) is important as it means that subs (1) applies not only to acts and proceedings of a statutory body expressly created by a statute but also applies where the statutory body has come into existence through (under) processes set up by a statute. A local planning panel is a body whose legal existence arises under s 2.17(2)(a) of the EPA Act and is a body constituted under the EPA Act. It is clearly a statutory body. Ms Novak agreed with the Council that the Panel was a statutory body. The answer to the first question is that the Panel is a statutory body and s 52(1) of the Interpretation Act can apply, subject to resolution of the next question.

2. Any statutory indicators ousting application of s 52?

18. The second question is whether other provisions in the EPA Act suggest contrary to the application of s 52(1) that the Panel’s Decision is invalid as provided by s 5(2) of the Interpretation Act. If s 52(1) applies in the absence of contrary statutory indicators, any disqualification of a member of the Panel (subs (c)) need not give rise to invalidity.

Submissions

19. The Council adopted Ms Novak’s submissions which follow. Section 2.18 of the EPA Act identifies the requisite membership of a local planning panel. The question for consideration then becomes whether the EPA Act evinces a legislative intention that full and proper constitution of the membership of a local planning panel was a condition precedent to the valid exercise of its statutory functions under s 2.19 (see by analogy Edelsten vRichmond [1989] NSWCA 71 (Edelsten) per Mahoney JA at p3(18-19)) and it does not. If it were found to be otherwise the consequence is that there would be a legislative intention that s 52 of the Interpretation Act does not apply.

20. The fact that s 2.18 of the EPA Act uses clear language directing what is to be done is not determinative, it must be considered in its statutory context. In Edelsten Priestley JA (in obiter at p7) found that the consequences of an appointment to membership of a statutory board contrary to an express provision which made a person over 70 years of age ‘not eligible to be appointed as a member of the Board or to act in the office of a member’ would be cured by reason of s 52(1) of the Interpretation Act. This case in its use of direct language is not dissimilar to that considered by Priestley JA. However, even more so there are other statutory indicators which suggest that a full and proper constitution of the membership of a local planning panel was not a condition precedent to the valid exercise of its statutory functions.

21. Schedule 2 to the Act makes further provisions for planning bodies including a local planning panel (Sch 2 cl 1 Definitions) and the requirements for a quorum (Sch 2 cl 22 Quorum). That a quorum for a meeting does not require all four members of the panel, but rather only a majority, supports an interpretation that a meeting of a panel constituted by all four (validly) appointed members was not a condition precedent to the valid exercise of its functions (Edelsten per Priestley JA at p3). A provision stipulating a quorum is an enabling measure, in the absence of which all members of the body would have to participate in its decision making (Levenstrath Community Association Incorporated v Council of the Shire of Nymboida (1999) 105 LGERA 362; [1999] NSWSC 989 (Levenstrath) at [6] citing Young J in Ball v Pearsall (1987) 10 NSWLR 700 (Ball)).

22. Other provisions which support the conclusion that there is no intention that a meeting of a panel must be constituted by four members include:

1. Sch 2, cll 17–18: provision for vacancies in membership (Edelsten per Mahoney JA at p3); and

2. Sch 2, cl 16(4) - ability to remove a member from office at any time for any reason and without notice.

23. It is also relevant that the EPA Act makes provision for oversight as to the operation and membership of a local planning panel. Under s 2.20(5) a council is to monitor the performance of a local planning panel it constitutes. Under s 2.20(6) a council must report to the planning secretary annually about whether a panel has been constituted, matters referred to the panel and the persons appointed to the panel inter alia. Coupled with other Ministerial powers such as s 9.7 of the EPA Act, the statute provides for mechanisms to ensure compliance with the requirements of s 2.18.

24. In Steuart v Oliver (No 2) (1971) 18 FLR 83 (Steuart) Joske J in the Federal Court of Australia at 84 stated that there is no general rule that if a person who is not a member of a body participates in proceedings or even votes that automatically invalidates a decision of that body. In Harries v Crawfurd [1918] 2 Ch 158 (Harries), referred to in Steuart, the Court of Appeal of the United Kingdom considered a broadly similar provision to s 52 in the Education Act 1902 (UK) in deciding that the decision to dismiss a teacher by a school board that included two people who were not qualified to sit on the board at the time the decision was made did not give rise to invalidity of the decision.

25. Ms Novak placed particular emphasis on the term ‘merely because of’ in s 52 in submitting that the circumstances in a case must otherwise suggest a valid act of a statutory body. A quorum of properly constituted members as found in s 22 of the EPA Act must otherwise have existed at the time the Decision was made in order for s 52 to apply. The EPA Act evinces an intention that a vacancy in the office of chairperson does not mean that a local planning panel cannot carry out its functions provided it otherwise has a quorum of properly appointed members, cll 17, 18(2) of Sch 2 of the EPA Act.

26. The participation of Mr Stein KC can be disregarded and treated as a vacancy in the office of chairperson. There is no evidence that the participation of the chairperson influenced the decisions of the other properly appointed members of the panel (Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2015] NSWLEC 125 per Craig J at [148] in the context of voting by councillors).

27. It is noted that the Decision was made by unanimous resolution of members Mr Stein KC, Mr Vergotis, Ms Warton and Ms Inglis. It is agreed that the remaining members of the Panel during the period in question were otherwise properly appointed by the Council (being by resolution of the majority of councillors at a meeting of the council at which a quorum is present). In circumstances where the meeting of the Panel on 6 October 2022 had a requisite quorum (not counting the chairperson) and the Decision was supported by a majority of votes (also not counting the chairperson’s vote), the Decision otherwise sufficiently answers the description of an ‘act…of a statutory body’ in the chapeau to s 52 of the Interpretation Act. Consequently the scheme relating to local planning panels in the EPA Act is consistent with s 52 applying, and does not evince a contrary intention.

28. The Council submitted, essentially by way of contrast within the statutory scheme, if a property developer were to be appointed to a local planning panel such would be a direct contravention of s 2.18(3) of the EPA Act which makes plain that no such person could ever be appointed. The specific disqualification provision in s 2.18(3) in light of the requirement of independence that underlies appointments of members of local planning panels under ss 2.18(1)-(2), (4) of the EPA Act would evince a contrary intention to the application of s 52(1).

29. The circumstances of this case can be contrasted with the consideration of s 52 in other cases where a contrary intention was found to exist which resulted in s 52 not applying to render valid a decision of a statutory body. The parties are only aware of s 52 being referred to in three Court of Appeal cases and one unreported NSW Supreme Court case. Two decisions are most relevant for present purposes. Attorney General of NSW v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 (World Best) concerned a decision of the NSW Administrative Decisions Tribunal where two non-judicial members of the tribunal participated in the formulation and making of a decision in a manner prohibited by the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) that limited non-judicial members to an assisting role only.

30. In Carlewie Pty Ltd v Roads and Maritime Services (2018) 98 NSWLR 233 (Carlewie), the statutory role of a commissioner sitting with a judge in the Court was identified as to advise (expressly ‘not adjudicate’) in s 37(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The Court of Appeal found that in light of statements in the judgment the acting commissioner was engaged impermissibly in adjudication. Citing World Best, the Court of Appeal found the adjudication on the rights of a party by a body that was not empowered by legislation to undertake that curial task was invalid as the statutory scheme evinced an intention whereby s 52(1) (there subs (e)) could not apply.

31. The key point of distinction between the present facts, and those that were material in World Best and Carlewie, is that Mr Stein KC (as chairperson of the Panel) was not exercising a statutory function expressly prohibited in the underlying legislation. He was not a commissioner exercising determinative functions that were reserved exclusively for a judge. He was not a lay tribunal member doing the same where a similar statutory prohibition existed on such persons ever exercising such a statutory power. He was an otherwise qualified and independent person entitled to exercise the functions of a member of the multi-member Panel save only for a defect in his appointment (in s 52(1)(b) terms). This is evidenced by the fact that Mr Stein KC was entitled to be and was appointed to other local planning panels (see above in [13]) at the same time as there was a defect in his appointment to the Panel.

32. In GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 (GJ Coles) at 525 an assessor’s role in the Retail Trade Industrial Tribunal was specified in the relevant statute as not to include adjudication. A decision of the tribunal in which assessors did adjudicate was found to be invalid. GJ Coles considered the application of the de facto officer doctrine.

Consideration

33. By virtue of s 2.17(2)(a) of the EPA Act the Council has to constitute a local planning panel, it being agreed that the Council is within the designated Sydney districts. A local planning panel is subject to any directions the Minister makes under s 9.1 (none arise in this matter) (s 2.17(6)). A local planning panel is not subject to the direction or control of a council except in relation to procedure or the time for dealing with a matter that is not inconsistent with a direction under s 9.1 (s 2.17(7)). Section 2.18 provides for the appointment of members to a local planning panel (s 2.17(1)), specifies the composition of the four members of a planning panel (s 2.17(2)) and provides for the necessary approval of the Minister of an approved independent person for appointment to a local planning panel inter alia (s 2.17(4)). As already noted above in [12], the Council accepts that the necessary appointment by the Minister of Mr Stein KC to the Panel did not take place in June 2021. Rather the Council’s then General Manager wrote to Mr Stein KC on 15 June 2021 ostensibly appointing him as chair of the Panel. Mr Stein KC purported to commence as chair of the Panel on 1 July 2021. There is no suggestion that Mr Stein KC could have been aware of the irregularity in the purported appointment by the then General Manager. The Decision under appeal was made by the Panel on 6 October 2022.

33. Reference to much earlier cases of Harries and Steuart underscores how rarely the kinds of circumstances I am considering apparently arise. In Steuart Joske J (Spicer CJ and Smithers J agreeing) held at 84-85 that:

There is no general rule that where a person who is not a member of a body, whether this is due to disqualification or lack of qualification or otherwise, is present at a meeting of the body, participates in its proceedings or even votes, this necessarily invalidates either the vote or the whole of the proceedings at the meeting. The circumstances of each particular case have to be considered. Thus the presence of so many unqualified persons at, and their participation in, a meeting may be such that a court would hold that it could not be regarded as a meeting of the particular body. So also, where the presence of the unqualified person is relied upon to constitute a quorum and unless he is counted the meeting is short of a quorum, there is no quorum and no meeting or, in other words, the proceedings at the meeting, if it is held, are ineffectual. The presence of a quorum means a quorum competent to transact and vote upon the business before the meeting. If some of those present are disqualified from voting and there is not otherwise a quorum, no business can be validly done.

35. Joske J also referred to the decision of Harries. In Harries, the Court of Appeal of the United Kingdom was considering a challenge to a decision of managers of a school board to terminate a teacher’s appointment on the basis that the managers who so acted did not satisfy the qualification requirements set out in the Education Act inter alia. Two persons who did not meet the qualification requirements participated in the decision under challenge. Three other validly appointed members participated who satisfied the statutory quorum for the decision. The Court of Appeal of the United Kingdom ultimately held that the decision was valid. The Education Act provided ‘[t]he proceedings of a body of managers shall not be invalidated by any vacancy in their number, or by any defect in the election, appointment, or qualification of any manager’. This provision whilst not identical to s 52 of the Interpretation Act is of similar effect. The Court of Appeal of the United Kingdom found that the provision protected the act of the body of managers so that a defect in the qualification of some managers did not invalidate the decision (by way of notice of dismissal), per Swinfen Eady MR at 173-174, Warrington LJ at 174, 177, Duke LJ at 178. Warrington LJ observed that there was otherwise a sufficient number of qualified managers who voted in favour of the resolution, at 177.

36. At issue in Edelsten was whether the NSW Medical Board was properly constituted under the Medical Practitioners Act 1938 (NSW) as amended by the Medical Practitioners (Amendment) Act 1987 (NSW) for various reasons. Relevantly for this matter, one member appointed was over 70 years of age which was contrary to the statute under which the board was created. The consequence was argued to be that the board was not properly constituted as all 18 members were not in place at the time the relevant decision was made. Provisions considered by the Court of Appeal included the operation of the board in the event of vacancies in membership, the ability to function with a quorum of ten and provision for filling of casual vacancies. The Court of Appeal concluded that the statutory scheme did not require all 18 members to be in place at all times before any decision of the board could be valid and that s 52(1) applied to cure any defects in the appointment of an over-age member. Similar considerations arise given the provisions in Sch 2 of the EPA Act for the operation of local planning panels, particularly cll 17-18, 22.

37. In World Best the Court of Appeal considered the application of a provision of the ADT Act defining the role of non-judicial tribunal members as assisting, not adjudicating. Spigelman CJ found at 576:

This provision [s 52(1)(e) of the Interpretation Act] does not avail the Attorney. Participation in the adjudication, contrary to the provisions of cl 4(3) of Pt 3B of Sch 2 of the Administrative Decisions Tribunal Act, is not “participation at a meeting” of the Tribunal. What was involved was not a “meeting”, but the formal exercise of a statutory power by a person not entitled to exercise the power.

38. Accordingly the decision of the ADT under scrutiny was found to be invalid and reliance on s 52(1) of the Interpretation Act not allowed to preserve its validity.

39. In Carlewie the application of s 38(2) of the LEC Act as to how the Court was to be constituted was at issue in the context of the role of a commissioner when sitting with a judge. Section 52(1) was not relied on by the respondent. The section was identified as relevant by the Court of Appeal in the course of considering World Best.

40. GJ Coles pre-dates the Interpretation Act and the reasoning focussed on the de facto officer doctrine inter alia and is therefore of less assistance.

41. Consideration of Steuart, Harries, Edelsten, World Best and Carlewie emphasises that the particular circumstances and statutory scheme in each case requires close consideration in determining whether a statutory intention exists contrary to the application of s 52(1).

42. The intent of the provisions in the EPA Act concerning the operation of local planning panels is to ensure the independence of members of a local planning panel. In this case, the Decision was made by unanimous resolution of the four panel members. The Council confirms that the other three members of the Panel during the period in question were otherwise properly appointed by the Council (being by resolution of the majority of councillors at a meeting of the Council at which a quorum is present), as provided by the Local Government Act1993 (NSW) ss 355, 368, 371, 375A.

43. In considering the scheme in the EPA Act matters concerning the presence of a quorum (Sch 2 cl 22), provision for vacancy in membership (Sch 2 cl 17), removal of members being provided for (Sch 2 cl 16) and oversight of a panel by a council that has constituted it (ss 2.20(5), (6)) are all relevant to consider in relation to the effect of one member of a local planning panel not being correctly appointed. Reference to such factors occurred in several of the cases considered above.

44. The purpose of a provision stipulating a quorum is an enabling measure, in the absence of which all members of the body would have to participate in its decision making (Levenstrath at [6] citing Young J in Ball). Accordingly, in circumstances where the meeting of the Panel on 6 October 2022 had a requisite quorum (not counting the chairperson) and the Decision was supported by a majority of votes (a unanimous resolution) not counting the chairperson’s vote, I agree that the Decision sufficiently answers the description of an ‘act…of a statutory body’ in the chapeau to s 52.

45. In addition to requirements for a quorum, provisions for vacancies in membership, removal of members and oversight of a local planning panel also exist. These are relevant considerations in determining that the scheme in the EPA Act does not oust the application of s 52(1) of the Interpretation Act in the circumstances of this case concerning the disqualification of a member of the Panel.

46. The cases discussed at [34]-[39] above are also instructive in identifying matters that, by way of contrast, inform a decision whether a statutory scheme does exclude the application of s 52(1), in particular explicit requirements for who may sit on a particular statutory body in addition to the fact of their appointment. The various cases support the Council’s submissions made in reference to s 2.18(3) which specifies persons who may not be appointed to a local planning panel, including someone engaged in property development or a real estate agent as defined. If s 2.18(3) was applicable (it is not) I consider this would be more likely to give rise to a contrary intention in the statutory scheme that s 52(1) of the Interpretation Act would not apply. As the Council submitted Mr Stein KC was otherwise qualified and an independent person entitled to exercise the functions of a member of a multi-member panel save only for a defect in his appointment. Mr Stein KC was a member of other panels at the relevant time period as identified above in [13].

47. For completeness I note that the Council submitted that the Court could also undertake a purposive test to discern whether there was a legislative purpose to invalidate any act that fails to comply with a condition in light of the approach in Hill v Council of the Law Society of ACT [2019] ACTSC 79 (Hill) at [28]-[29] citing Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [91]. In Hill the application of s 212 of the Legislation Act 2001 (ACT), the ACT equivalent to s 52 of the Interpretation Act, was considered in light of Project Blue Sky. None of the other cases referred to above sought to apply Project Blue Sky considerations in their reasoning. I do not consider there is any warrant under statutory construction principles to do so on the question of whether statutory indicators suggest an intention contrary to the application of s 52 arises.

48. In answer to the second question the EPA Act contains no contrary statutory indicators to suggest that s 52 of the Interpretation Act does not apply in the circumstances of this matter. I find that s 52(1) can apply so that the Decision of the Panel when a panel member was not qualified to sit in accordance with the requirements of the EPA Act need not be called into question. Accordingly the Decision was valid.

49. In view of my findings above it is unnecessary to determine the application of the de facto officer doctrine in question three.

Finding made

50. The finding sought in the Further Amended Notice of Motion filed in Court on 4 May 2023 is made, namely that s 52 of the Interpretation Act operates such that the Decision of the Panel to refuse development consent for DA2021.272 is valid at law.

51. The Court notes the Respondent’s undertaking to pay the reasonable costs incurred by the Applicant in relation to this motion.

**********

Decision last updated: 08 June 2023