Land and Environment Court New South Wales Medium Neutral Citation: Friends of Glebe Wetlands Incorporated v Littlewoods Civil Contracting Pty Ltd [2022] NSWLEC 21 Hearing dates: 4, 11 February and 21 March 2022 Date of orders: 21 March 2022 Decision date: 21 March 2022 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [21]. Catchwords: JUDICIAL REVIEW: whether modification approval invalid because of absence of delegation to grant council officer approval – no delegation – approval made absent power to do so and therefore invalid – whether appropriate to grant declaratory relief in circumstances where parties consent to declaration being made – whether a proper contradictor – declaration made – second respondent to pay applicant's and first respondent's costs. Legislation Cited: Environmental Planning and Assessment Act 1979 Local Government Act 1993, ss 377(1), 378(2) Cases Cited: Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 IMF (Australia) Ltd v Sons of Gwalia Ltd (Administrator Appointed) [2004] FCA 1390; (2004) 211 ALR 231 Re Beechworth Land Estates Pty Ltd (Administrators Appointed) [2017] NSWSC 1447 Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62 Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60 Penrith City Council v Dincel Construction System Pty Ltd and Gaonor Pty Limited (OSSM case) [2019] NSWLEC 198 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Zetting v Müller [2017] NSWSC 659 Category: Principal judgment Parties: Friends of Glebe Wetlands Incorporated (Applicant) Littlewoods Civil Contracting Pty Ltd (First Respondent) Bega Valley Shire Council (Second Respondent) Representation: Counsel: L Sims (Applicant) B Buckland (First Respondent) M McMahon (Second Respondent) Solicitors: Ross Mackay (Applicant) Lexmerca Lawyers (First Respondent) ME McMahon & Associates (Second Respondent) File Number(s): 2021/00245262 Publication restriction: Nil EX TEMPORE Judgment The Council Makes a Decision Absent Delegated Power 1. These proceedings concern a judicial review challenge to the validity of a decision of the second respondent, Bega Valley Shire Council ("Council"), on 25 May 2021, to modify development consent 2016.515 ("the consent"). The consent relates to a residential subdivision of land at Lot 4 DP 240604, East Street, Bega. The decision was purportedly made by a delegate of the Council, the Senior Town Planner. 2. On public land adjacent to the development site there is a Grey-headed Flying-Fox colony. The applicant, Friends of Glebe Wetlands Incorporated ("Friends of Glebe"), is concerned about the impacts of the development on the colony. The modification of the consent authorised a different subdivision layout. The Friends of Glebe's concern in relation to this different layout is that there would be more development closer to the colony which may increase the impacts of the subdivision on the flying-foxes. 3. The relevant ground of judicial review (the proceedings raised other grounds of challenge but it is not necessary to determine them in light of the concessions ultimately made about this ground by the Council and the first respondent, Littlewoods Civil Contracting Pty Ltd ("Littlewoods")) was that the delegate did not hold a valid delegation to make the decision to grant the modification. 4. The delegation of a function to a council officer (other than the General Manager) under the Local Government Act 1993 ("LGA"), is a two-stage process. First, a council may delegate a function to a general manager pursuant to s 377(1), and second, a general manager may sub-delegate the function to a council officer pursuant to s 378(2) of that Act. 5. Sections 377(1) and 378(2) of the LGA provide as follows: 377 General power of the council to delegate (1) A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council under this or any other Act, other than the following- … 378 Delegations by the general manager (2) The general manager may sub-delegate a function delegated to the general manager by the council to any person or body (including another employee of the council). 1. The Council keeps a "Register of Delegations" which is split into two parts. Part 1 sets out the delegations of Council, including the delegations to the General Manager, and Part 2 sets out the delegations to Council officers by the General Manager. 2. Part 1 of the Register of Delegations records the delegation of a specific list of functions under legislation, and general administrative functions of Council, to the General Manager. Relevantly, it does not delegate any functions of Council under the Environmental Planning and Assessment Act 1979 ("EPAA") to the General Manager. Accordingly, ultimately it was not a matter of dispute that the General Manager did not have power to sub-delegate any functions under the EPAA to Council officers. 3. In the result, the Council's Senior Town Planner, who purported to make the decision to modify the consent did not have a valid delegation to do so. The decision is therefore invalid, as there was no power to make it conferred upon the Senior Town Planner. 4. Friends of Glebe seeks substantive relief by way of a declaration that the decision to modify the consent was invalid, void and of no effect, and an order quashing the decision, together with costs. Should the Court Grant Consent Declaratory Relief? 1. At issue is whether the Court should accede to the parties' request on the third day of what was otherwise a contested hearing to make declarations and orders in accordance with an agreement now reached between the parties to resolve the proceedings. 2. There is no doubt that the Court has jurisdiction to make the declaration that the parties now seek. However, the mere fact that the parties consent to the relief does not automatically result in its granting notwithstanding the wide discretion vested in the Court. 3. The principles relating to the granting of declaratory relief are well established (Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62 at [25]-[30]). 4. In Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 Preston J considered the Court's position in relation to the making of declarations in civil enforcement proceedings. He held that although the Court had jurisdiction to make declarations where the respondents had breached planning and environmental statutes, on the facts before him, as a matter of discretion, a declaration would not be appropriate because, first, the making of a declaration would not have any practical effect in the circumstances; second, declarations of breach are not necessary in order for the Court to have jurisdiction to make orders, including injunctive orders; third, a declaration of breach by itself neither remedies past breaches nor restrains future breaches; fourth, care must be taken not to use a declaration as a substitute for criminal prosecution; and fifth, while a legitimate purpose of civil enforcement is for there to be a finding by the Court and through its judgment, a public pronouncement that a breach of the law has occurred, this effect can be equally achieved by the Court making findings in its judgment which is a public document. 5. His Honour's remarks have been considered in subsequent cases (Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6, Marshall, Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 and Penrith City Council v Dincel Construction System Pty Ltd and Gaonor Pty Limited (OSSM case) [2019] NSWLEC 198). 6. A condition precedent to granting declaratory relief is that, among other things, the applicant must be able to secure a proper contradictor, namely, someone presently existing who has a true interest to oppose the declaration sought (Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 at 438). 7. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56, a question arose as to whether, having regard to the consent of the parties to the granting of the declaratory relief proposed, the primary judge was prevented from granting that relief. In particular, the issue was whether consent to the relief precluded the respondent from being a "proper contradictor". The Full Federal Court applied the decisions in Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60 (at 648) and in IMF (Australia) Ltd v Sons of Gwalia Ltd (Administrator Appointed) [2004] FCA 1390; (2004) 211 ALR 231 (at [47]) and held that if a party had a true interest in the plaintiff's claim, even if they saw that interest served by not opposing the relief claimed, that would be sufficient to render them a "proper contradictor" (at [16] and [30]). Similar sentiments have been expressed in Zetting v Müller [2017] NSWSC 659, Re Beechworth Land Estates Pty Ltd (Administrators Appointed) [2017] NSWSC 1447 and OSSM at [16]-[19]). 8. In the present case Littlewoods was a proper contradictor having regard to its interest in the outcome of the proceedings as evidenced by the first two days of the hearing. 9. I have considered the principles in Lani, Hilltop (No 4), Inner West and OSSM. I find that in circumstances where there has been agreement between the parties to the making of declarations (unlike Lani), and where on the uncontested evidence before the Court there was no delegation to the Senior Town Planner, and therefore, no power to grant approval to the proposed modification, in order to achieve the purpose of exposure and denouncement of the Council's conduct, the mere pronouncement of this judgment alone would not constitute sufficient relief. In other words, the declaration sought ought be made. 10. This is because the making of the declaration marks the disapproval of the Court of the conduct of the Council in not ensuring that appropriate delegations were in place. It will serve to encourage this, and other councils, to implement and follow proper processes in respect of the issuing of delegations so that decisions are made with the necessary statutory power to do so. The granting of the declaration will therefore have an educative effect, and moreover, serves to promote the orderly and efficient conduct of planning laws by local government authorities in this State. 11. Although not strictly necessary, the making of the declaration will also assist in grounding the orders for costs agreed to by the parties. As a matter of fact and law Friends of Glebe have succeeded in its judicial review challenge because of the jurisdictional error made by the Council in approving the modification application absent power to do so. Littlewoods played no role in the decision to unlawfully modify the consent. This is directly reflected in the costs orders made by the Court. Orders 1. The orders of the Court are therefore that, by consent: (1) a declaration that the decision by the second respondent to modify development consent 2016.515 on 25 May 2021 in relation to lane at Lot 4 DP 240604 East Street, Bega, NSW is invalid, void and of no force and effect; (2) an order quashing the decision of the second respondent to modify the development consent; (3) the second respondent is to pay the costs of the applicant and the first respondent as agreed or assessed up to and including 2 February 2022; (4) the first respondent is to pay the costs of the applicant as agreed or assessed after 2 February 2022; and (5) the exhibits are to be returned. ********** Amendments 22 March 2022 - Solicitor representation updated to reflect a sole practitioner. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2022