Stokes v Waverley Council (No 2)

[2019] NSWLEC 174

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stokes v Waverley Council (No 2) [2019] NSWLEC 174
Hearing dates:	7 August 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Jurisdiction:	Class 1
Before:	Robson J
Decision:	The Court orders: (1) The appeal is upheld. (2) Orders (1), (2) and (3) made by Commissioner Bish on 3 April 2019 are set aside. (3) The proceedings are remitted to Commissioner Bish to be determined in accordance with these reasons for judgment. (4) No order as to costs.
Catchwords:	APPEAL – appeal against a Commissioner’s judgment on questions of law – whether Commissioner erred in finding that she did not have jurisdiction to grant consent to the development application – whether Commissioner erred in finding that the consent of the owner of adjoining land was required pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) – whether Commissioner erred in finding that the location of existing piles used for structural stability raised an issue of jurisdiction – whether the Commissioner erred in finding that jurisdiction to determine the appeal was only provided if the piles were structurally isolated from the proposed development – whether Commissioner erred in dismissing the appeal without giving the parties an opportunity to make submissions as to whether the consent of the owner of adjoining land was required and whether she had jurisdiction to grant consent to the development application – appeal upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) ss 4.12, 4.15, 4.16, 4.17, 77 Environmental Planning and Assessment Regulation 2000 (NSW) cll 49, 50, Sch 1 Land and Environment Court Act 1979 (NSW) s 56A
Cases Cited:	Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 233 LGERA 170 Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118; (2018) 236 LGERA 256 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20 Owners Strata Plan 37762 v Pham [2005] NSWLEC 500 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Rose Bay Afloat Pty Ltd v Woollahra Council [2002] NSWLEC 208; (2002) 126 LGERA 36 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Stokes v Waverley Council [2019] NSWLEC 1137
Category:	Principal judgment
Parties:	Stephanie Stokes (Appellant) Waverley Council (Respondent) (Submitting Appearance)
Representation:	Counsel: A Galasso SC with J Farrell (Appellant) M Hanna, solicitor (Respondent) (Submitting Appearance)   Solicitors: Boskovitz Lawyers (Appellant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2019/00133622
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWLEC 1137 Date of Decision: 3 April 2019 Before: Bish C File Number(s): 2018/00220827

Judgment

Nature of appeal and outcome

1. On 22 September 2017, Stephanie Stokes lodged development application DA 404/2017 (‘DA’) with Waverley Council (‘Council’) seeking consent for alterations and additions to an approved five-storey building for use as a dual occupancy and for additional excavation on Lot 43 DP 10771 and known as 21 Thompson Street, Tamarama (‘site’). On 28 March 2018, the Waverley Development Assessment Panel (‘Panel’) refused the DA.

2. On 18 July 2018, Ms Stokes filed a Class 1 application in this Court appealing against the Panel’s refusal of the DA. The appeal was heard by Commissioner Bish on 18-19 February and 5 March 2019. On 3 April 2019, the Commissioner delivered judgment dismissing the appeal: Stokes v Waverley Council [2019] NSWLEC 1137 (‘Judgment’).

3. The Commissioner found that the proposed development relied upon existing piling, including two piles located on an adjoining property, being Lot 44 DP 10771 and known as 19 Thompson Street, Tamarama (‘Lot 44’). As no owner’s consent had been provided by the owners of Lot 44, in light of cll 49(1)(b) and 50(1)(a) of the Environmental Planning and Assessment Regulation 2000 (NSW) (‘EPA Regulation’), the Commissioner concluded that “a fundamental jurisdictional hurdle” had not been overcome (Judgment [56]), and disposed of the appeal.

4. On 30 April 2019, Ms Stokes commenced this appeal by way of summons pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (‘Court Act’). Ms Stokes seeks orders that the decision of the Commissioner be set aside; that the appeal be remitted to a different Commissioner for determination according to law; and costs.

5. As appeals under s 56A are limited to errors on questions of law, the grounds of appeal were that the Commissioner erred in:

1. finding that she did not have jurisdiction to grant consent to the DA before the Court;

2. finding that the consent of the owner of adjoining land was required pursuant to cl 49 of the EPA Regulation;

3. finding that the location of two existing piles used for structural stability raised an issue of jurisdiction;

4. finding that jurisdiction to determine the appeal was only provided if the two piles were structurally isolated from the proposed development; and

5. dismissing the appeal without giving the parties an opportunity to make submissions as to whether the consent of the owner of adjoining land was required pursuant to cl 49 of the EPA Regulation and whether she had jurisdiction to grant consent to the DA before the Court.

6. The grounds of appeal fall into two categories: first, an error as to a purported lack of jurisdiction; and, second, a denial of procedural fairness.

7. On 5 August 2019, Council filed a submitting appearance in these appeal proceedings. The hearing proceeded on 7 August 2019 with Mr A Galasso of senior counsel with Mr J Farrell of counsel, appearing for Ms Stokes, and Mr M Hanna, solicitor, confirming Council’s submitting appearance.

8. For the reasons that follow, I have determined that the Commissioner erred on a question of law in relation to jurisdiction and in denying Ms Stokes procedural fairness; that the appeal should be upheld; and the matter remitted to Commissioner Bish for determination in accordance with these reasons for judgment.

Background

9. The site is rectangular and adjoins Thompson Street to the south; Tamarama Drive to the north; Lot 44 to the west, on which a residential dwelling is located; and Lot 42 DP 10771 (being 23 Thompson Street) to the east, on which a residential dwelling is located.

10. The foundation of the site is primarily sandstone, which has been excavated to a depth below the surface of approximately 13m in the south of the site and approximately 8m in the centre of the site: Judgment [3].

11. The site has steep sandstone rock faces along its southern, eastern and western boundaries. From the southern to central portion of the site, the sandstone walls are self-supporting, after which the rock faces are supported by steel joists and shotcrete on the eastern boundary, and piles along the north-western boundary: Judgment [4].

12. In the central portion of the site, a mound of fill has been placed. No buildings are located on the site: Judgment [5].

13. Relevant development consents relating to the site include:

1. Development application DA 494/2011 approved on 7 June 2012 for the demolition of an existing dwelling and the construction of a new four/five-storey dwelling and swimming pool;

2. Development application DA 444/2013 approved on 18 June 2014 for alterations and additions to the existing dwelling including a car lift with basement parking and swimming pool; and

3. Development application DA 365/2014 approved on 23 December 2014 for modifications to the design of the approved dwelling on the site under DA 444/2013 (‘2014 Consent’). Excavation has been carried out pursuant to the 2014 Consent.

14. The 2014 Consent was modified on 18 September 2015 (DA 365/2014/A) to change the lift overrun height, windows, side fencing and internal layout, and to increase the floor areas (‘Modified 2014 Consent’).

15. The DA seeks to retain the building envelope, façade, height and floor space ratio (‘FSR’) approved by the Modified 2014 Consent, and to amend the internal layout to accommodate two dwellings for dual occupancy use; to subdivide the land into two strata lots; to deepen the existing excavation for a lift extension and sump; and to fill previously over-excavated areas undertaken under the Modified 2014 Consent.

16. On the third day of the hearing before the Commissioner, further documentation was provided to: correct errors in the architectural plans; amend the survey plan; amend the stormwater plans; update the cl 4.6 written requests for variation of development standards in relation to FSR and height; and address structural integrity. The updated material collectively became ‘Exhibit K’ before the Commissioner.

17. As noted above, Exhibit K contained a survey prepared by CMS Surveyors Pty Ltd dated 28 February 2019 (‘Survey’) which identified concrete piling along the western boundary and showed two piles on the boundary between the site and Lot 44.

18. At Judgment [24], the Commissioner stated:

The amended survey plan also identified a jurisdictional issue relating to at least two of the piles, used for structural stability along the western boundary of the site, being located on an adjoining property, 19 Thompson Street. The respondent sought leave during the hearing, with no objection from the applicant, and granted by the Court, to provide the adjoining resident with the amended survey plans. No response, and in particular no owners consent has been received by the Court on this issue (emphasis added).

19. The “jurisdictional issue” referred to is at the heart of Ms Stokes’ first four grounds of appeal.

20. As considered below, the Commissioner’s consideration of and findings in relation to the two piles, summarised at Judgment [29]-[30] (extracted below), were fundamental to the outcome of her decision.

21. The issue before the Court is whether, on the facts before the Commissioner, and as a matter of law, there needed to be landowner’s consent in circumstances where no works were proposed on Lot 44.

22. As a result of a concern expressed by the Commissioner in relation to the piling, there were discussions over the course of the third day of the hearing as to two possible treatments of the western extent of the proposed development, including:

1. retention of a void between the sandstone face and the wall on the site to be filled with free draining gravel; or

2. a possible reinforced concrete wall, including the option of a 300mm concrete wall that would not need to rely on the encroaching piles for structural support.

23. Mr Patterson, solicitor for Council, and Mr McDonald, town planner for Council, suggested a deferred commencement condition to regularise any reliance on structures off-site, and draft conditions of consent were prepared, including condition 12 (recorded at Judgment [44]) relating to excavation and backfilling.

24. At the hearing before the Commissioner, Ms Stokes’ position was that no work was to be carried out on Lot 44.

The Commissioner’s decision

25. Having described the site and the background to the DA, the Commissioner noted that excavation on the site had commenced under previous consents and that the architectural plans before the Court had changed from those which were before the Panel: Judgment [13], [16]. Having summarised the conduct of the hearing with reference to the updated documentation which became Exhibit K (Judgment [21]-[23]), as noted at [18] above, the Commissioner raised a “jurisdictional issue”.

26. At Judgment [28], the Commissioner noted that at the conclusion of the hearing, the only remaining contentions of Council related to the sufficiency of the cl 4.6 written requests (for variation of development standards in relation to FSR and height); the structural integrity of the excavation and depth thereof; and public interest.

27. Relevantly, at Judgment [29]-[30], the Commissioner stated:

[29] It is accepted that the Council have formulated their contentions in relation to the proposed development and were at the time of filing their contentions, not aware of the location of existing piles. However, I must first deal with the jurisdictional requirement of owners consent as it relates to the proposed development, which relies on the existing piles located on 19 Thompson Street, before the Court can issue a consent. This matter alone necessarily disposes of the appeal.

[30] For the reasons provided below, I have no power to approve this development without the requisite owners consent. In this instance, the adjoining owners consent from 19 Thompson Street continues to, and remains to this day outstanding and I find that the proposed conditions of consent do not satisfy this requirement.

28. Under the heading “Have the jurisdictional requirements for owners consent to rely on works on adjoining land been satisfied?” at Judgment [35], the Commissioner stated:

Although not a contention in the SoFC, as a consequence of information received in evidence during the hearing, namely the amended survey plan, the parties agree that there are (at least) two piles identified and constructed as part of commencement of a previous DA consent for the site, which are located on adjoining land, being 19 Thompson Street.

29. The Commissioner thereafter (at Judgment [38]) made reference to and recited cll 49(1) and 50(1)(a) of the EPA Regulation and, having noted that the Statement of Environmental Effects (‘SEE’) and plans (architectural, structural and stormwater) “...rely on a width of up to 900 mm of sandstone between the designed building envelope and the site boundary, consistent with the most recent DA consent for the site”, stated at Judgment [39]:

It is however clear from the amended survey plan, and agreed by the parties that the extent of sandstone relied upon for the proposed development is now primarily a ‘void’ between the sides of the excavation and the building envelope, particularly in the southern portion of the site.

30. The Commissioner thereafter noted (Judgment [40]) that senior counsel for Ms Stokes contended (with no dispute from Council’s solicitor) that:

…the piles and overexcavation that has created the void are a result of a previous consent and structural reliance by the proposed development on these factors is resolvable through an engineering design by way of condition.

31. The Commissioner recorded that after the hearing, the parties provided draft conditions of consent and written submissions in relation to two of the draft conditions which remained in dispute: Judgment [26]-[27].

32. The Commissioner then recorded (Judgment [41]-[44]) that the documents supporting the DA and the documents provided in Exhibit K did not address what she considered to be the “the absence of the sandstone rock that now forms this void nor the piles located on the adjoining property”: Judgment [42].

33. At Judgment [43]-[44], the Commissioner noted that there had been an “acknowledgment” at the hearing that the treatment of the void to the (western) boundary could be addressed by way of a condition, and that to address “the issues generated by over excavation of the site and incorrect location of piling”, a condition (‘condition 12’) had been “proffered by the parties”. She recorded that condition 12 provided:

12    EXCAVATION AND BACKFILLING

a)   The extent of excavation approved is strictly limited to that detailed in the approved drawings for DA-404/2017, including drawing numbers A10.07/1 and A10.08/1.

b)   To the extent that the site, through previous action prior to the issue of the consent, has been over-excavated greater than necessary to accommodate approved Level 0, as approved under this consent, then the site is to be back-filled to comply with the land profile and levels approved in this consent.

c)   Geotechnical engineering drawings prepared by a suitably qualified and experienced geotechnical engineer are to be submitted and approved by Council detailing the back-filling consistent with this condition, prior to the lodgement of any Construction Certificate.

d)   All back-filling, including any approved method of support for the backfilling under (c), is to occur prior to any other works occurring on the site.

e)   Upon completion of the back-filling, the works are to be certified in writing by a suitably qualified and experienced geotechnical engineer as being consistent with the terms of this consent, including confirmation of finished levels and the structural stability of the fill to sustain the proposed construction of the development. This certification must be issued to the Council prior to the lodgement of any Construction Certificate.

f)   The issue of any Construction Certificate must include details of the certified approved fill.

34. At Judgment [48], the Commissioner stated that “The proposed conditions do not respond at all to the issue of reliance on the piles which are located on the adjoining property. The conditions are silent with respect to this issue…”

35. At Judgment [45], the Commissioner recorded that in addition to condition 12, a further structural assessment “with detail of back filling works to support proposed condition 12” was provided by the applicant and that Council “made no application to the Court to address the applicant’s structural engineer’s response to the proposed filling of the void”.

36. At Judgment [46]-[49], the Commissioner, in response to the material that had been provided after the hearing, including the proposed conditions, stated:

[46] …The plans and structural design do not resolve how the retaining wall will be fixed in locations where the sandstone does not exist. The proposed structural solution does not fully address the actual void shown on the amended survey plan, and therefore the proposed condition (12) is uncertain in resolution of this issue.

[47] I am not satisfied that the proposed conditions, together with the detail from the structural engineer, adequately address the treatment of the void created by the overexcavation, nor does it address the piles located on the adjoining property from the proposed development.

[48] The proposed conditions do not respond at all to the issue of reliance on the piles which are located on the adjoining property. The conditions are silent with respect to this issue. It is unclear from the plans or the structural assessment how the backfilling relates to the piles located on the adjoining property and whether there are structures, such as the retaining wall, that would be placed upon the piles. The plans before the Court appear to suggest that this would be the case.

[49] I am not satisfied that the proposed conditions of consent provide a solution to structurally isolate the piles located on 19 Thompson Street. There is sufficient uncertainty as to whether the piles have been isolated and that would remove the proposed developments’ reliance upon them. Therefore, the proposed conditions do not resolve the requirement for owners consent from the adjoining property.

37. Having expressed a concern in relation to reliance on “such a poorly defined condition of consent” and after reference to the principles in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (‘Mison’), at Judgment [52], the Commissioner stated:

I find that the proposed development relies on the piles located on an adjoining property and therefore requires evidence of owners consent for application of the DA before development consent can be granted by the Court, pursuant to cl 49(1) of the EPA Reg.

38. At Judgment [53]-[55], the Commissioner referred to the analysis in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 233 LGERA 170 (‘Al Maha’) at [90]-[91], [93]-[95] in relation to the relevant information that must support a development application and the legal requirements for requiring owner’s consent.

39. At Judgment [56]-[58], the Commissioner concluded:

[56] I find that the proposed development relies on existing piling including piles located on 19 Thompson Street and that there is no owners consent provided to do so. This is a fundamental jurisdictional hurdle that has not been overcome.

[57] I need evidence at the time of the assessment to be satisfied that the works can be isolated to the applicant's land and that impacts on the adjoining properties are satisfactorily addressed, particularly in circumstances where an adjoining owner has raised a concern about cracking of structures on his site and suggested generated by the excavation to date. There is insufficient information before me to satisfy the assessment of s 4.15 of the EPA Act.

[58] I find that I have no power to grant consent to DA 404/2017, as cll 49(1)(b) and 50(1)(a) of the EPA Reg have not been satisfied.

Ms Stokes’ submissions

40. While I note that there are subtle differences in relation to grounds 1-4 raised by Ms Stokes, and although the wording is somewhat infelicitous, they each relate to the Commissioner’s finding of a lack of jurisdiction to determine the appeal on the basis that landowner’s consent was required pursuant to cll 49(1)(b) and 50(1)(a) of the EPA Regulation in circumstances where the proposed development was said to rely on two piles “on” Lot 44 for structural stability.

41. Given my view as to the overlapping nature of grounds 1-4, I will note the primary submissions of Ms Stokes in relation to each, and then consider them together. At the hearing, Mr Galasso similarly submitted that the first four grounds relate to the “principal defect”, that being in relation to jurisdiction, expressed in different ways.

42. The fifth ground of appeal raises a denial of procedural fairness on the basis that the Commissioner failed to identify to the parties that a reason for refusal of the DA could be the failure to obtain landowner’s consent for off-site works.

Ground 1: error of law in finding no jurisdiction to consent to the DA

43. Ms Stokes submits that the Commissioner found that she did not have power to approve the DA without the requisite owner’s consent from the landowner of Lot 44: Judgment [29]-[30], [56], [58]-[59].

44. Ms Stokes contends that there are four errors relating to the Commissioner’s finding that she did not have jurisdiction to approve the DA. First, the Commissioner misdirected herself by conflating “the land to which the development application relates” for the purposes of cll 49 and 50 of the EPA Regulation with “works that the development relies upon”.

45. Ms Stokes submits that nowhere in cll 49, 50, 1(1)(b) or 1(1)(i) of Pt 1 in Sch 1 of the EPA Regulation is there any reference to works that the development “relies upon”. Ms Stokes submits that the test is whether the development application “relates” to the land on which development particularised in the application is to take place. Ms Stokes contends that this misdirection amounts to an error of law.

46. Second, Ms Stokes submits that the Commissioner does not distinguish between off-site works within the scope of the DA which require landowner’s consent pursuant to cl 49 of the EPA Regulation, and off-site works that are proposed to be carried out pursuant to a condition of consent imposed under s 4.17(1)(f) of the EPA Act. Ms Stokes says that the Commissioner fails to recognise that off-site works may be approved pursuant to a condition of consent imposed under s 4.17(1)(f) of the EPA Act, citing Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 (‘Rosemount’) at 96.

47. Mr Galasso submitted that the Commissioner misunderstood the power of a consent authority to impose conditions to require work on other land (in accordance with s 4.17(1)(f) of the EPA Act). That is, even if work was required to be done on Lot 44, Mr Galasso contended that the Commissioner did not appreciate that it was within her power to impose a condition with respect to the adjoining property, irrespective of whether the owner would ultimately permit any work to be undertaken.

48. Third, Ms Stokes submits that the Commissioner does not make a finding as to whether off-site works are within the scope of the DA, and that this was fundamental to a determination of whether landowner’s consent from the owner of Lot 44 was required. Rather, Ms Stokes says that the Commissioner erroneously finds that the proposed development “relies on the piles located on an adjoining property” (emphasis added). Ms Stokes says that this is not the correct test for the reasons outlined above.

49. Finally, Ms Stokes submits that the scope of the DA did not extend to the concrete piles on Lot 44, and accordingly, cl 49(1)(b) of the EPA Regulation was not triggered with respect to Lot 44 as the development did not relate to that land.

50. In the absence of proposed works on Lot 44 as part of the DA, Ms Stokes submits that the Court had jurisdiction to uphold the appeal and approve the DA, and to find otherwise was an error of law. Ms Stokes contends that it was not open to the Court to find that it did not have jurisdiction on the basis of a failure to obtain landowner’s consent, and the Commissioner erred in law in so finding.

Ground 2: error of law in finding the consent of the owner of adjoining land was required

51. The Commissioner found that the proposed development “relied on” the piles located on Lot 44 and therefore required evidence of owner’s consent before development consent could be granted pursuant to cl 49(1) of the EPA Regulation: Judgment [52]. In this regard, Ms Stokes submits that the Commissioner wrongly relied on the decision in Al Maha in making findings as to the relevant information required to support a development application.

52. Mr Galasso submitted that the western edge of each of the two piles did not remain within Ms Stokes’ property and while the two piles traversed the boundary (that is, the boundary “bisected” the piles), the eastern edge of each pile remained on Ms Stokes’ property.

53. Mr Galasso further submitted that [28]-[30] and [35] of the Judgment were factually wrong in terms of the evidence before the Court, including the plans and the Survey. Mr Galasso stated that there was no proposal before the Court to carry out work on another’s land, and to find, as the Commissioner did, that there was a jurisdictional constraint to the consideration of the appeal because there was an absence of landowner’s consent, was wrong at law. Mr Galasso submitted that because the factual foundation was wrong, what followed in relation to the jurisdictional finding was wrong.

Ground 3: error of law in finding the location of two existing piles for structural stability raised an issue of jurisdiction

54. The Commissioner found that the proposed development relied on existing piles, including piles located on Lot 44, and that there was no owner’s consent provided to do so: Judgment [56]. Ms Stokes says that the “reliance” on the piling can only be understood as a reference to structural stability, and submits that a finding that reliance on off-site works required landowner’s consent pursuant to cl 49 of the EPA Regulation is inconsistent with the decision of the High Court in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20 (‘Ligon’). As such, Ms Stokes submits that the Commissioner erred in law in finding that the location of two existing piles used for structural stability raised an issue of jurisdiction.

Ground 4: error of law in finding that jurisdiction to determine the appeal was only provided if two piles were structurally isolated from the proposed development

55. Ms Stokes submits that at Judgment [49], the Commissioner found that she was not satisfied that the proposed conditions of consent provided a solution to “structurally isolate” the piles located on Lot 44, and that there was sufficient uncertainty in relation to whether the piles had been “isolated” so as to remove the proposed development’s reliance on them. The Commissioner concluded that the proposed conditions did not resolve the requirement for owner’s consent from the adjoining property.

56. Ms Stokes submits that this finding conflates a number of separate legal principles. First, it fails to recognise that there is an express legal power for a consent authority to impose a condition of consent requiring works to be carried out off-site, and there is therefore no matter of jurisdiction that would preclude the granting of consent. Mr Galasso noted that the focus at the hearing before the Commissioner was on regularising the “encroachment”, not a matter of power, and as such, there was confusion between the need to regularise what was referred to as encroachment, as distinct from a power to determine the matter.

57. Second, a failure of proposed conditions of consent to achieve a desired outcome does not necessarily raise an issue of jurisdiction, and even if condition 12 did not satisfy the test in Mison, it was open to the Commissioner to impose a condition which amended the details of the development and removed the possibility that the development may be carried out not in accordance with the consent granted. That is, Mr Galasso submitted that even if there was a “structural isolation” argument at Judgment [48] that had some relevance to land beyond the subject DA, it was included in the part of the Commissioner’s judgment that dealt with conditions, and it would have been within power in any event for the Commissioner to impose a condition to do works on the other side of the boundary, citing Rosemount.

58. Finally, the specific desired outcome, being the structural isolation of the piles on Lot 44, was not a required outcome in order to avoid landowner’s consent being triggered.

Ground 5: failure to afford procedural fairness

59. Ms Stokes submits that the absence of landowner’s consent for off-site works was not a contention raised by Council in the SEE or at the hearing, and the Commissioner did not identify, as a potential reason for refusal, the failure to obtain landowner’s consent for off-site works. Mr Galasso submitted that a search of the transcript revealed that owner’s consent was only raised once before the Commissioner (Tcpt, 19 February 2019, p 24(1-18)) and that was in relation to the identity of the proponent, not in relation to the adjoining owner. Further, if there was an issue in relation to jurisdiction in the absence of it being a contention raised by Council, it was incumbent on the Commissioner to identify it so the parties could address the Court on it. As such, Ms Stokes was entitled to limit her case to the contentions raised by Council. Further, as there were otherwise limited contested issues that Ms Stokes had to meet, she was not required to address the broader issue of landowner’s consent from the owners of adjoining land.

60. Ms Stokes submits that as the Commissioner’s consideration of the issue in relation to adjoining landowner’s consent was dispositive of her decision, she was deprived of the possibility of a different decision: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 (‘Stead’) at 147.

Consideration

Legislative framework

61. As noted above, the first four grounds relate to the Commissioner’s finding of a lack of jurisdiction to determine the appeal in circumstances where she found that two piles were “located on” adjoining land and the development relied upon the piles, thereby requiring the consent of that landowner to determine the appeal. It is useful to consider the relevant legislation, including ss 4.12(1), 4.16(1), 4.16(4), 4.16(11) and 4.17(1) of the EPA Act, cll 49(1), 50(1) and 1(1) in Pt 1 of Sch 1 of the EPA Regulation, to consider the “jurisdictional hurdle” argument.

62. Section 4.12 of the EPA Act relevantly provides:

4.12   Application (cf previous s 78A)

(1)    A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

…

63. Sections 4.16 and 4.17 of the EPA Act relevantly provide:

4.16   Determination (cf previous s 80)

(1)   General A consent authority is to determine a development application by—

(a)   granting consent to the application, either unconditionally or subject to conditions, or

(b)   refusing consent to the application.

…

(4)   Total or partial consent A development consent may be granted—

(a)   for the development for which the consent is sought, or

(b)   for that development, except for a specified part or aspect of that development, or

(c)   for a specified part or aspect of that development.

…

(11)   Other restrictions on determination of development applications

The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.

…

4.17   Imposition of conditions (cf previous s 80A)

(1)    Conditions—generally A condition of development consent may be imposed if—

…

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or

…

64. Accordingly, in determining a development application, the consent authority takes into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to “the development the subject of the development application”.

65. Section 4.17 regulates the statutory scope of conditions of consent. A condition of consent can be imposed requiring works off-site. There is no provision in the EPA Act or the EPA Regulation which would require landowner’s consent to such a condition. However, any works physically carried out without the appropriate authorisation would be a trespass to land.

66. Clauses 49(1) and 50(1) of the EPA Regulation relevantly provide:

49   Persons who can make development applications (cf clause 46 of EP&A Regulation 1994)

(1)   A development application may be made—

(a)   by the owner of the land to which the development application relates, or

(b)   by any other person, with the consent in writing of the owner of that land.

...

50   How must a development application be made? (cf clause 46A of EP&A Regulation 1994)

(1)    A development application—

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and

…

67. A development application must contain the information, and be accompanied by the documents, specified in Pt 1 of Sch 1 pursuant to cl 50(1)(a) of the EPA Regulation.

68. Part 1 of Sch 1 of the EPA Regulation relevantly provides:

Schedule 1 Forms

Part 1 Development applications

1   Information to be included in development application

(1)   A development application must contain the following information—

…

(b)   a description of the development to be carried out,

(c)    the address, and formal particulars of title, of the land on which the development is to be carried out,

…

(i)    evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner’s consent is required by this Regulation,

…

69. It follows that landowner’s consent from adjoining owners is required where a development application proposes work on adjoining land.

70. For the purpose of landowner’s consent to a development application, there is a distinction between the works the subject of the relevant development application, and off-site works that may be carried out pursuant to conditions of consent: s 4.17(1)(f) of the EPA Act.

Jurisdiction

71. While expressing some concerns in relation to various aspects of the proposal, the Commissioner disposed of the appeal primarily, if not solely, on the basis that landowner’s consent from the owner of Lot 44 was required and had not been obtained. In those circumstances, the Commissioner was of the view that the Court did not have jurisdiction to approve the DA.

72. Put simply, accepting that the owner whose consent to the making of a development application is required is the owner of the land on which the development the subject of the development application is to be carried out (Ligon at 476-477 and Al Maha at [89]), the essential issue in this appeal relates to whether the scope of the DA extends to the two existing piles located on the western boundary of the site which are partially on Lot 44. If it does, it follows that consent from the owner of Lot 44 is required.

73. Pursuant to the legislative framework summarised above, a development application must contain, inter alia, “a description of the development to be carried out” and “the address, and formal particulars of title, of the land on which the development is to be carried out”: cll 1(1)(b) and 1(1)(c) in Pt 1 of Sch 1 of the EPA Regulation. Further, having identified the development and the land on which the development is to be carried out, the development application must contain “evidence that the owner of the land on which the development is to be carried out consents to the application…”: cl 1(1)(i) in Pt 1 of Sch 1 of the EPA Regulation.

74. It is trite to state that in determining the development application, the consent authority (or this Court on appeal) takes into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to “the development the subject of the development application”. Importantly for present purposes, and as considered further below, the land on which development is to be carried out is to be determined not only from the address and formal particulars of title shown on the development application form, but also from the documents that must accompany the development application: Al Maha at [91].

75. Recent decisions of the Court of Appeal and this Court emphasise the centrality of the “development” the subject of a development application. Identification of the land to which a development application relates is primarily required to identify the owner of the land and obtain their consent to the making of the development application, thereby enabling the consent authority to grant development consent to the application if it is minded to do so: s 4.12(1) of the EPA Act and cll 49(1), 50(1)(a), 1(1)(c) and 1(1)(i) in Pt 1 of Sch 1 of the EPA Regulation, Al Maha at [89], Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 at [38] and Ligon at 476-477, 481.

76. I consider that consent is only required from the owner of the land to which the DA relates and if the two piles are not within the scope of the DA, they are not on land to which the DA relates. That is, if no development is being carried out on Lot 44, no consent is required from the owner of that land.

77. It is clear from the Survey that the eastern edge of the two piles is on the site, and I find that the evidence established that no work was proposed on Lot 44.

78. The Commissioner carefully recorded (Judgment [60]) that because of her primary finding as to what she described as the “jurisdictional hurdle”, she did not consider the other outstanding issues. For the reasons that follow, I consider that the absence of consent from the owner of Lot 44 was not a “jurisdictional hurdle” and the Commissioner’s finding that it was constitutes legal error.

79. I find that, as submitted by Ms Stokes, the Commissioner misdirected herself by conflating “the land to which the development application relates” for the purposes of cll 49 and 50 of the EPA Regulation, with the words “works that the development relies upon”. I consider that this is clear from Judgment [37] where the Commissioner quotes the relevant provisions (detailed above) and then introduces the concept of “…owners consent for works that the development relies upon…” (emphasis added). This concept of reliance permeates the Commissioner’s consideration and is fundamental to her finding that she lacked jurisdiction to determine the appeal: Judgment [24], [29]-[30], [35], [37], [40], [48]-[49], [52] [55]-[57]. The test is whether the development “relates” to the land on which development particularised in the application is to take place, the concept of reliance is not incorporated in the statutory scheme explicitly or by necessary implication.

71. Although not determinative, I accept, as submitted by Mr Galasso, that the manner in which the position of the piles was considered at the hearing before the Commissioner, couched in terms of an “encroachment” by the experts, may have contributed to a misunderstanding or misapprehension that there were “works” to be undertaken on Lot 44. For example, during the course of the hearing, the experts gave evidence to the effect that if it was a concern that any reliance was placed upon the two piles, a procedure or structure could be adopted so that the piles were not relied upon in any event.

72. Further, to the extent that there was to be some form of connection, in the sense of a small “wing beam” shown on the engineering plans between the proposed development and the piles, such connection would be to piles that had already been constructed and located on the site, and in any event, the eastern parts of the two subject piles were located within the boundary of the site. In my view, while these matters may have clouded the issues before the Commissioner, the determinative matter in the present appeal is that the material before the Court indicated that no works were sought to be undertaken on Lot 44.

73. In relation to ground 1, Mr Galasso submitted that in Rosemount, there was a condition of consent that required the planting of some hedge trees around a proposed mine site. At 96, the Court of Appeal stated:

...The fact that a condition is imposed upon a developer to do work on the property of another does not mean that the condition is invalid; it may not be able to be performed but that and any consequences flowing from non-performance are different matters…

83. Although submissions were made on behalf of Ms Stokes that the Commissioner failed to recognise that a condition could have been imposed requiring works to be undertaken on Lot 44 (pursuant to s 4.17(1)(f) of the EPA Act and Rosemount at 96), thereby addressing any concern regarding an absence of landowner’s consent, I do not consider this to be of relevance. The fact was that no works were being undertaken on Lot 44.

84. Despite the fact that the Commissioner did not make a specific finding as to whether off-site works were within the scope of the DA so as to trigger the requirement for landowner’s consent, the Commissioner’s conflation of “relates” and “relies upon” within the meaning of the EPA Regulation is sufficient to constitute legal error. In the circumstances, the factual foundation of the Commissioner’s finding on jurisdiction was wrong primarily because there was no proposal before the Court to carry out work on Lot 44 and therefore owner’s consent was not required.

85. In addition to my findings above, in relation to ground 2, I consider the Commissioner’s reliance on Al Maha to be problematic. The facts in Al Maha involved the construction of a driveway from the basement of a residential flat building across Al Maha’s adjacent land to the extension of Hilts Road. The Court found that the driveway was part of the proposed development and was within the scope of the development application. This is in contrast to the present case where no works are proposed off-site. Accordingly, to the extent that Al Maha was relied upon, it is not determinative in this appeal.

86. In Al Maha, the Court of Appeal determined that the land on which the development is to be carried out is to be determined not only from the address and formal particulars of title shown on the development application form but also from the documents that accompany the development application, including the site plan and the SEE (Al Maha at [91]); and, further, if the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application: Owners Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32]. Conversely, the description of the land on which the development is to be carried out in the accompanying documents (such as the SEE) can also confine the land to which the development application relates to be a lesser parcel of land than is described in the development application form: Al Maha at [94] and Rose Bay Afloat Pty Ltd v Woollahra Council [2002] NSWLEC 208; (2002) 126 LGERA 36 at [60]-[63].

87. In the circumstances, I accept Ms Stokes’ submission that nowhere in Al Maha is the concept of “reliance” on off-site works referred to as the foundation for a requirement of landowner’s consent, and I do not consider it to be a requirement on a proper reading of the legislation.

88. Further, in relation to cl 49 of the EPA Regulation and landowner’s consent, the High Court in Ligon found that if a development application is designed by an applicant so that the development for which consent is sought will be undertaken within the applicant’s own land, then the need for consent of the owner of the adjoining land does not arise, even if consequential development may be required on adjoining land for which consent would be required but is not essential to the development the subject of the development application: Ligon at 476. Although the High Court in Ligon was considering what was then s 77(3)(b) of the EPA Act, the words “…to which the development relates” is substantially similar to cll 49(1)(a) and 1(1) in Pt 1 of Sch 1 of the EPA Regulation.

89. I consider that the principles in Ligon are apposite to the circumstances of the present appeal, and note that in Ligon at 476-477, the High Court stated:

…When a development application is made for consent to a specified development, the land to which the application "relates" must therefore be the land on which the specified development is proposed to be carried out…

…

…Although related developments on adjoining parcels of land may each require consent before they are carried out, each development is on its own parcel of land and any necessary consent must be sought by a development application that relates to that parcel - not to the adjoining parcel…

90. For the reasons stated above, there was no “jurisdictional hurdle” that precluded the Commissioner from considering the DA.

Procedural fairness

91. The principles in relation to procedural fairness are well known. In Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [30], Kiefel, Bell, Keane JJ stated:

…in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions….

92. In Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118; (2018) 236 LGERA 256 (‘Initial Action’) at [129], Preston CJ of LEC referred to his earlier decision in Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 at [101] as follows:

It may be accepted that, as a general rule, if a Commissioner or Judge hearing a Class 1 appeal is to determine the proceedings by reference to matters beyond the issues identified by the parties, then procedural fairness requires that the parties be given notice of those additional matters and accorded the opportunity to be heard upon them: see Cavasinni Constructions Pty Ltd v Fairfield City Council (2010) 173 LGERA 456 at [39]. This is because ordinarily, the Court determines the proceedings on the substantive issues joined between the parties: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177at [42], [95] and Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 at [37], [38]. If, however, the Court considers that there are issues additional to those joined between the parties that need to be considered, procedural fairness requires the parties to be notified and given an opportunity to be heard in relation to the additional matters…

93. Preston J further stated (Initial Action at [132]):

The appellate jurisdiction of the Court in determining an appeal under s 56A of the Court Act on the grounds of denial of procedural fairness is analogous to judicial review of administrative decisions on the denial of procedural fairness. Where the Court finds that a party has been denied procedural fairness, it will be rare that such an error will not result in the Court granting relief and making a remitter order: Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164 at [123]. It is sufficient to warrant the grant of relief and the making of a remitter order that there was a possibility of a different outcome had there been no denial of procedural fairness: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [3] –[4] , [80] , [104] , [131] , [172] , [211]. It cannot be said that compliance with the requirements of procedural fairness by the Commissioner could have made no difference to the conclusion reached by the Commissioner: Stead v State Government Insurance Commission at [145].

94. For the reasons that follow, adopting the above principles, I find that the Commissioner denied Ms Stokes procedural fairness by disposing of the appeal due to what she determined to be an absence of jurisdiction (because there was no landowner’s consent for off-site works), a matter not raised in Council’s Statement of Facts and Contentions (‘SOFAC’) or at the hearing.

95. The contentions raised in Council’s SOFAC related to FSR, excavation, visual and acoustic privacy and public interest, none of which raised the failure to obtain landowner’s consent for off-site works. Further, the Commissioner recorded at Judgment [28] that the only contentions described in Council’s SOFAC that remained related to those matters referred to at [26] above. Although it may be said that, as noted at Judgment [29], Council was not aware of the location of the existing piles when the SOFAC was filed, I consider that Ms Stokes was entitled to limit her case to addressing the specific concerns raised in Council’s SOFAC, and if raised, any matters remaining of concern that were articulated at the hearing.

96. The Commissioner’s finding that the proposed development relied on existing piling, including two piles “located on” Lot 44 in the absence of landowner’s consent significantly influenced her decision on the basis that it was held to be a “fundamental jurisdictional hurdle” that had not been overcome: Judgment [56]. Where the “jurisdictional hurdle” apparently came about as a consequence of information received in evidence (specifically, the Survey) during the hearing, the parties were entitled to be notified and afforded with an opportunity to be heard on the issue. The Commissioner did not do either of these things, and as a result, there was a denial of procedural fairness. In the circumstances, I consider that it cannot be said that compliance with the requirements of procedural fairness could have made no difference to the final determination of the Commissioner: Stead at 145 and Initial Action at [132].

Remitter

97. Given my finding that there has been legal error in the manner of determination based upon an absence of owner’s consent, and a denial of procedural fairness to Ms Stokes, I consider it appropriate to make a remitter order.

98. As I have found that a remitter order is appropriate, the issue then becomes whether such order should be exclusionary (as sought by Ms Stokes), that is, whether the matter should be remitted to a commissioner other than Commissioner Bish for determination.

99. Ms Stokes seeks an exclusionary remitter order, and submits that the errors of law committed by the Commissioner, in particular the denial of procedural fairness, make an exclusionary remitter order appropriate. Ms Stokes contends that there is a reasonable apprehension that the Commissioner will not decide the case impartially in the sense that she has pre-judged the very issues of fact in respect of the same development application which she would be required, if she was to rehear the matter, to determine afresh.

100. Mr Galasso submitted that, apart from the error in relation to the Commissioner’s finding regarding jurisdiction, the Court would consider the manner in which the Commissioner dealt with evidence regarding whether there could be “structural isolation” in relation to the piles and her references to “regularising the encroachment” at the hearing as matters that, to a fair minded observer, may indicate that the Commissioner may not bring an independent mind to any reconsideration of the proposal.

101. In Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 (‘Basemount’) at [21]-[23], Tobias JA stated:

[21]…A clearer case of pre-judgment could not be envisaged than where a judicial officer has determined in a considered judgment questions of fact with respect to the very same issues which he or she is then required to re-determine on a re-hearing of the same case. In fairness, it should be said that senior counsel for the respondents did not suggest to the contrary. What he did do was to refer the Court to the following passage from the judgment of Mason J (as he then was) in re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice rather than he will decide the case adversely to one party. There may be many situations in which previous decisions of the judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be ‘firmly established’.”

[22] In my opinion the present case does not fall within the above principle: it is not one whereby the reasonable apprehension is that Commissioner Murrell will decide the case adversely to the Council. Rather, it is one in which there is a reasonable apprehension that she will not decide the case impartially in the sense that she has (understandably) pre-judged the very issues of fact in respect of the very same development application which she would be required, if she was to re-hear the matter, to now determine afresh…

[23] Before concluding, I should make it clear that the present case is being decided on its own facts. It should not be assumed that merely because a Commissioner’s decision is set aside on a s 56A appeal on the ground of error of law that it necessarily follows that any re-hearing and re-determination of the appeal should be by a Commissioner other than the Commissioner from whose decision the appeal was brought. There are many errors of law which would not require an exclusionary order under s 56A(2)(b). Thus if a Commissioner has mistaken the law and asked himself or herself the wrong question, there may be no reason why the appeal should not be remitted to that Commissioner to be determined by him or her in accordance with law. Again, where the error only involves the misconstruction of a statutory provision or the like there may be no reason why the Court as originally constituted cannot apply the facts as found by it to the law as declared on the appeal. In such cases the Commissioner’s earlier decision may have been based on a false issue or be otherwise severable so that there will have been no pre-judgment on the real issue.

102. While there may be situations where previous decisions of a judicial officer or commissioner may generate an expectation that they are likely to decide issues adversely to one of the parties, this does not mean that the outstanding issues would be considered other than with an impartial and unprejudiced mind: Basemount at [21]. I do not consider that the Commissioner has expressed clear views upon a question of fact with respect to issues that she may be required to redetermine.

103. Further, while I have found that there has been a denial of procedural fairness, I do not find that the particular circumstances of the denial of procedural fairness raise a reasonable apprehension that the Commissioner may not decide the matter impartially should it be remitted to her: Initial Action at [139]. This is particularly so in light of Mason J’s comments in Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 at 352 that reasonable apprehension of bias by reason of pre-judgment must be “firmly established” to warrant an exclusionary remitter order. To the extent that the Commissioner expressed some views in relation to certain aspects of the proposal, and in particular regarding what she termed the “provision of a solution” to “structurally isolate” the subject piles (Judgment [49]), I consider that, seen in context, those considerations were rooted in her concern in relation to what she considered to be a jurisdictional matter.

104. Although I have found that there has been a denial of procedural fairness, in light of Basemount at [21]-[23] and Initial Action at [134]-[139], I do not consider that this is determinative of an exclusionary remitter order being appropriate.

Costs

105. As the parties have agreed that irrespective of the outcome of the proceedings, it is appropriate that there be no order as to costs, I make no order for costs, with the effect that each party will bear its own costs.

Orders

106. The Court orders:

1. The appeal is upheld.

2. Orders (1), (2) and (3) made by Commissioner Bish on 3 April 2019 are set aside.

3. The proceedings are remitted to Commissioner Bish to be determined in accordance with these reasons for judgment.

4. No order as to costs.

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Decision last updated: 15 November 2019