The Australian Federation of Islamic Councils Inc & Anor v Hoxton Park Residents Action Group Inc & Anor

[2012] HCATrans 119

[2012] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S407 of 2011

B e t w e e n -

THE AUSTRALIAN FEDERATION OF ISLAMIC COUNCILS INC

First Applicant

MALEK FAHD ISLAMIC SCHOOL LIMITED

Second Applicant

and

HOXTON PARK RESIDENTS ACTION GROUP INC

First Respondent

LIVERPOOL CITY COUNCIL

Second Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 2012, AT 12.25 PM

Copyright in the High Court of Australia

MR A.E. GALASSO, SC:   May it please the Court, I appear for the applicants.  (instructed by Goldrick Farrell Mullan Solicitors)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR J.T. JOHNSON for the first respondent.  (instructed by Robert Balzola and Associates (Legal))

HAYNE J:   There is a submitting appearance by the second respondent, I believe.  Yes, Mr Galasso.

MR GALASSO:   Thank you, your Honour.  Your Honours, there are two grounds in relation to this application, the first which, if I may, describe as the time bar ground and the second a substantive ground and may I deal with those two grounds in that order in deference to the possibly wider import of the time bar ground.  Insofar as the time bar ground is concerned, the facts relevant to that ground are that the appeal relates to a development consent granted by the second respondent who has entered a submitting appearance on 30 June 2009.  Public notice of that development consent, consistent within provisions of the Environmental Planning and Assessment Act, at least as a purported notice, was issued on 8 July 2009 and the proceedings were commenced on 16 March 2010. 

The significance of the time, your Honours is as contained in the Act which purported to give the power to grant the development consent in the first place and, in particular, section 101 of that Act, which is contained in the applicant’s authorities at page 68 and which is reproduced in both of the judgments in the courts below.  It operates as a time bar against the bringing of proceedings in circumstances where public notice of the grant of a development consent is given in accordance with the regulation and, as your Honours will have seen from the judgments and from the summaries of arguments, notwithstanding a comment by the Court of Appeal in relation to whether or not a notice was given, there was an attempt to give such a notice by the publication of a notice by the second respondent, your Honours, part of which made its way to the application book.

Can I give your Honours that reference.  It is page 86 of the application book.  It deals with the notice insofar as the description of the land is concerned and it is in the middle column under the heading “Hoxton Park” and everything that follows, except for the first item, “Awning”, however, unfortunately, the first page, which was the critical page for the purposes of the finding in particular of the Court of Appeal, did not make its way to the application book.  We have attempted to correct that by including it in the applicant’s authorities, notwithstanding it is not an authority, at page 77.  Your Honours will see at about point I on that page the phrase:

All development consents are available for public exhibition free of charge at Council’s Administration Centre.

What you will not see is part of clause 124 which is the kernel of this application.

HAYNE J:   Usual office hours, yes.

MR GALASSO:   Yes.  Your Honours, may I say, whilst we are in the applicant’s authorities, again as reproduced in both of the decisions in the courts below, the phrase in section 101, namely, subject to the regulation, has moment in the circumstances of this case by reference to clause 124 of the regulation at page 76 of the applicant’s authorities.  It sets out a number of requirements for satisfaction of the conditional position of section 101.  They include, as may be said to be relevant, the fact that it is to be given “by the consent authority”.  That is (1)(a)(i), (b), the fact that:

the notice describes the land and the development the subject of the development consent –

Then (c), a number of matters:

a statement that the development consent is available for public inspection, free of charge, during ordinary office hours:

(i)at the consent authority’s principal office, or

at some other office.  As your Honour Justice Hayne has noted, that phrase “during ordinary office hours” was omitted, although it was to be observed that possibly even if it was included, Justice Basten in the Court of Appeal may, that notwithstanding, still have an issue with it.  The notice, your Honours, insofar as clause 124 was concerned, complied with all aspects of clause 124 except for the inclusion of the phrase “during ordinary office hours”.  The trial judge found that the notice was not defective, relying instead on a proposition that it was self‑evident that the principal office was open during ordinary business hours, either of itself or in combination with section 100 of the Environmental Planning and Assessment Act, which is also contained in the applicant’s authorities at page 67, which requires the keeping of a register of development consents, that is, paragraph 100(1)(b) and in subsection 100(2):

The register is to be available for public inspection, without charge, at the office of the council during ordinary office hours.

The trial judge, in relation to this point which was taken by the first respondent, applied the principles in Project Blue Sky and concluded with the observation that section 101 was a time bar, not a privative clause, that the ability to inspect the development consent was implicitly stated in the notice and concluded that, at least on his view, the intention of Parliament was not to invalidate the subject notice.

HAYNE J:   But what becomes the point of principle that would invite us to bring it here?

MR GALASSO:   The point of principle, your Honour, is, as we have accepted in the summary of argument, we accept that the Project Blue Sky principle is one, at least on its terms, directed to the exercise of a power.  We construe that narrowly for the purposes of this application and accept that this is not, strictly speaking, an exercise of the power.  However, the principles in Project Blue Sky, we say, your Honours, should be equally applied to the circumstances of this case in order to test whether it may be said that it was Parliament’s intention that an act done in purported reliance of section 101, that is, the act being the publication of the section 101 notice so as to start time running, that was defective, we accept, as we must, it was defective, although we say partially so, is nonetheless still an effective notice when we test it against the principle as to whether Parliament would have truly intended that the notice is no notice at law, having regard to the nature of the defect.

The reason we say that, your Honour, is that, leaving aside the observations that Justice Basten in the Court of Appeal made about the importance of public participation in the scheme of the Act, something about which we accept, and also the importance of notification of development consent so that a party may decide whether or not to challenge it in the face of that notification, anyone reading the notice could not seriously in the scheme of what was missing be found to have (a) no notice of the consent, (b) no notice of the land to which it relates, (c) no notice of the fact that it can be inspected, (d) no notice of the fact that you can do it free of charge.  The only thing missing is the “during office hours”.

KIEFEL J:   But the giving of the notice is arguably a condition for the protection given by section 101.

MR GALASSO:   Yes, I accept that, your Honour.

KIEFEL J:   Does not that suggest that together with the purposes of the Act there might be strict compliance required?

MR GALASSO:   No, your Honour, for two reasons.  The first is the first I mentioned before which is the Project Blue Sky principles would appear to be on all fours with the application in this case, namely, that in Project Blue Sky it was a condition precedent to the enlivening of a power.  Now, I need to twist that around in order to apply the Project Blue Sky principles, I accept.  The second, your Honour, is that in the scheme of the Act, as we saw, section 100 would require the consents to be available in any case and, thirdly, as the Court of Appeal itself recognised, there may be aspects of the notice which are of more critical moment than other aspects of the notice.  That is the irony in the Court of Appeal’s decision, that whilst it adopted a strict approach to section 101 and the requirements of the regulation, it nonetheless recognised that there were elements of the notice that were more important than others.

HAYNE J:   But be it so, what follows?

MR GALASSO:   What follows, your Honour, is if that is the case, to use the Project Blue Sky principle, can it be said that if we have something that may be regarded as not so critical, is it Parliament’s intention or can it be construed as Parliament’s intention that the notice should be regarded as defective, to answer your Honour’s question, as not satisfying a condition precedent to the exercise of the power.  There is one final response I need to give to your Honour and that is a reference to this Court’s decision in Scurr.  Notwithstanding that in Scurr Justice Stephen spoke in parlance in that time about mandatory and directory provisions, that was a case involving the enlivening of a power to determine a development application.

In Scurr, if we leave aside the different language or the different approach in characterisation of mandatory directory versus a purposive application, his Honour nonetheless recognises, as we point out in the summary of argument, a difference between matters of my word “criticality” and matters of procedure and we would say, your Honour, that in the application of the defect in the notice in the circumstances of this case, we are not so much in areas of criticality but rather in areas of procedure.  Your Honours, for those reasons and, in particular, for the reason that, as we submit, the critical error of the Court of Appeal being on page 55 of the application book in paragraph 28 from about line 7 where the court, through Justice Basten, says that:

the legislature, through delegated legislation, has prescribed that which is required for giving effective notice.

we say the next couple of sentences are in error –

No authority is conferred on the courts to determine that a non‑complying notice will be effective in some cases, but perhaps not in others.

Now, your Honours, we say that by parity of reasoning that is against Project Blue Sky because you could say the same thing about a condition precedent, again to answer your Honour Justice Kiefel’s question earlier.  If there is a condition precedent to the exercise of a power, then nonetheless you have still a non-compliance with a condition precedent yet Project Blue Sky does not get us there.  Then he says:

Nor does the Act or the Regulation provide any criterion by which such an exercise could be undertaken.

Project Blue Sky tells us what we look at, namely, the scheme of the Act and the objects of the Act.  Then finally we say, your Honours, that to say that:

The only rational way to give effect to the expressed purpose of the Act, is to give effect to a notice given in accordance with the Regulation, but not one which fails to comply.

Your Honours, we say that that is, notwithstanding that the Court of Appeal did refer to Project Blue Sky, a misapplication of the principles that should be applied to the circumstances of this case.  As I said earlier, your Honours, that position is, in a sense, compounded by an apparent ranking that the Court of Appeal undertook in paragraph 24 of the judgment on page 53 of the application book.  Again leaving the characterisation language aside about whether something is mandatory, his Honour formulates one way of determining whether the condition precedent was satisfied or whether it could be ignored by reference to degree of precision with which the requirement is identified.  He says at about line 16 they:

are all matters which can readily be objectively identified and which do not require judgment on the part of the person drafting the statement.  The same is not necessarily true of the description of the development and the land, but these matters are so critical to the purpose of the notice that even if correctly stated, the addition of further misleading information will invalidate the notice –

Now, in a sense, we embrace that, but that is the sort of balancing exercise that we would respectfully submit the Project Blue Sky principle requires in determining whether a notice undoubtedly given, albeit defectively, is nonetheless an effective notice for the purposes of section 101.  For those reasons, your Honour, we would submit that ground 1 demonstrates an error in the analysis undertaken by the Court of Appeal.  The second ground, your Honours, is what I will describe as the substantive ground.  It requires an appreciation of a few more facts relevant to the application and if I may just for a moment concisely note what they are.

The first is that this was a development consent for a school for some 800 or so students.  In order for one of the accesses to the school, there was to be an access from one direction and an access from another direction, there was or the proponent would have it as relying upon the construction of a bridge or variously described as a culvert over a creek where the creek and the adjoining land was land in the ownership of the Council.  Because it was land in the ownership of the Council, the operation of the Environmental Planning and Assessment Act and a piece of delegated legislation made under it meant that development consent, as that term is known under the Environmental Planning and Assessment Act, was not required for the construction of the bridge – in fact, on one view, it could not be given for the construction of the bridge – but, rather, the construction of the bridge was to be assessed with the aid of Part 5 of the Environmental Planning and Assessment Act.

When it came to considering the development application for the school, the Council specifically noted that fact, that is, noted that the bridge was on Council land and noted that the bridge was to be determined under Part 5 of the Act and we accept for the purposes of this application, deferred that matter from the consideration of the development application for the school, as I said, noting that it was to be determined under Part 5 of the Environmental Planning and Assessment Act. 

Both the trial judge and the Court of Appeal found that that was an error insofar as it was a failure to take into account a mandatory relevant consideration under section 79C of the Environmental Planning and Assessment Act requiring consideration of the likely impacts of development, the logical sequence being that if the school was built, it would be likely that the bridge would need to be built because in that respect the occupation of the school was conditioned to not occur until the bridge was built and that therefore, because of that natural flow‑on effect, my description, not anybody else’s, an impact of a consent for the school was that the bridge would be built and with the bridge being built it would impact upon an endangered ecological community.

KIEFEL J:   Does this not really involve a factual finding?

MR GALASSO:   In a certain respect it does, your Honour, except it also involves applying a distinction in the facts to reconciling how two parts of the same Act would apply.  Now, both courts relied significantly, your Honours, on a decision of your Honour Justice Kiefel in the Queensland Conservation Case in which your Honour found that the concept of impacts, although the Act that your Honour was considering in that case was expressed in a different way, involved a wider import, that is a wider consideration of impacts than otherwise.  We accept that. 

However, in circumstances of a case such as this where the same act, namely, the Environmental Planning and Assessment Act, splits the transaction between an activity to be determined and assessed under one section and an activity to be determined and assessed under another, it may well be entirely wrong to say that a mandatory relevant consideration in the first one must be the assessment of the impact of the second.  Your Honour, there are a couple of reasons for that.  The first is that the test in the two sections is different.  Can I just quickly take your Honours to those tests.

KIEFEL J:   But the question comes down to whether or not it is closely linked, whether it forms part of the development of the school, does it not?

MR GALASSO:   Your Honour’s description of it – there lies the problem in this case, whether it forms part of the development of the school.  There is no doubt the school wanted the bridge built and there is no doubt, can I say ‑ ‑ ‑

KIEFEL J:   More in a practical sense really.

MR GALASSO:   Your Honour, I accept that, but in an assessment sense is the point that we wish to make.  The school could not occupy the school without the bridge.  The bridge could not be built without the assessment under Part 5.  So one asks rhetorically, why import the assessment under Part 5 into the assessment for the school for so long as the school is conditioned to not go ahead effectively, as it were, until a Part 5 assessment is undertaken, and that may well require reading back.  If I can take your Honours to the applicant’s authorities, page 64, at about point 3 on the page.  This is section 79C which is the test for the school consent, the Part 4 consent.  It is:

take into consideration such of the following matters as are of relevance to the development the subject of the development application –

The point being, armed with a development application I could build the school but not occupy it.  However, in building the school I did not impact upon the endangered ecological community.  The impact on the endangered ecological community was in the construction of the bridge whose physical footprint impacted upon it.  Now, the test for that or the consideration of that is if we go to the bundle of authorities, page 71, section 111(1) for the broad test:

For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of

any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

Your Honour, we say that in the circumstances of this case, accepting, your Honour Justice Kiefel an observation that it is a factual matter, however, to regard the breadth of impacts in 79C as wide is one thing, but to regard a failure to take into account a matter which is specifically identified to be deferred in the consent itself to the Part 5 assessment as impugning the consent under question is entirely a different matter.  Your Honours, we say for those reasons the Court of Appeal was wrong.  Can I update one thing, your Honour?

HAYNE J:   Well, the time has gone, but do go on.

MR GALASSO:   Just in relation to relief, your Honour.  There is a reservation expressed in our summary of argument on page 83 of the application book, paragraph 39, about the matter having to be remitted to the Land and Environment Court.  We have updated that via a note that we put in the applicant’s bundle of authorities at the very end which gives your Honours what decision Justice Biscoe made on remitter, which was to declare the consent invalid.  However, he has deferred the injunction against using that which was built until sometime next year.

HAYNE J:   Thank you, Mr Galasso.  We will not trouble you, Mr Williams.

An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is refused with costs.

AT 12.47 PM THE MATTER WAS CONCLUDED