Land and Environment Court of New South Wales CITATION : Drummoyne Foreshores Committee Inc v Drummoyne Council & Anor [2001] NSWLEC 14 APPLICANT The Drummoyne Foreshores Committee Inc PARTIES : FIRST RESPONDENT Drummoyne Council SECOND RESPONDENT P & E Southcombe Holdings Pty Ltd FILE NUMBER(S) : 40110 of 2000 CORAM: Sheahan J KEY ISSUES: Jurisdiction :- question of - judicial review - development consent granted by the court in class 1 proceedings Practice & Procedure - application to strike out - want of jurisdiction - judicial review sought of consent orders made by Commissioner of the court Environmental Planning and Assessment Act 1979 s 77A, s 78A(8), s 79 and s 123 Environmental Planning and Assessment Regulation 1994 53C LEGISLATION CITED: Land and Environment Court Act 1979 s 16, s 17, s 20, s 33(1), s 36, s 39, s 40, s 56, s 56A, s 57, s 61 Land and Environment Court Rules 1996 Part 13 Rule 35 Supreme Court Act s 48, s 69 Australian Conservation Foundation Inc v Commonwealth (1981) 146 CLR 493; Bailey v Marinoff (1971) 125 CLR 529; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937; DJL v Central Authority (2000) 170 ALR 659; FAI v Southern Cross Exploration (1987-88) 165 CLR 268 ; General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125; CASES CITED: Harris v Caladine (1990-91) 172 CLR 84; Howard Silvers Investments Pty Ltd v Sydney City Council & Anor (1998) 99 LGERA 154; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13; North Sydney Muncipal Council v Hunglen Pty Ltd (1992) 74 LGRA 313; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Russo v Kogarah Municipal Council [1999] NSWCA 303; Tweed Shire Council v The Minister administering the Crown Lands Act & Anor [1997] NSWLEC 92 DATES OF HEARING: 30/11/2000 DATE OF JUDGMENT: 02/15/2001 APPLICANT Barrister Mr M Tobias QC with Mr A J J Thompson Solicitors Storey & Gough FIRST RESPONDENT LEGAL REPRESENTATIVES: Solicitor Mr R K Graham of Abbott Tout SECOND RESPONDENT Barrister Mr P Tomasetti with Mr J Johnson Solicitors Berne Murray Tout JUDGMENT: IN THE LAND AND Matter No: 40110 of 2000 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 15 February 2001 THE DRUMMOYNE FORESHORES COMMITTEE INC Applicant v DRUMMOYNE COUNCIL First Respondent P & E SOUTHCOMBE HOLDINGS PTY LTD Second Respondent JUDGMENT Introduction 1. This judgment deals with an application for summary dismissal of these class 4 proceedings. 2. The applicant is an incorporated community group ("the objector"), which is challenging a consent held by the Second Respondent, P & E Southcombe Holdings Pty Ltd ("the company"). 3. The consent was granted by the court, but not, in the end, opposed by the First Respondent Drummoyne Council ("Council"). Consent orders were made by Commissioner Watts in proceedings 10832 of 1999 on 21 December 1999. 4. The objector was incorporated, upon application made to the Department of Fair Trading on 20 June 2000, for the following stated objects: 1. To constitute a community advancement society for the defence, protection and advancement of the environment, natural and urban, of Sydney Harbour, with particular reference to the Drummoyne area and its foreshore. 2. To do all things necessary or incidental to the achievement of the above object. 5. These proceedings were commenced on 1 August 2000, and the company's motion to strike them out for want of jurisdiction was brought on 25 August 2000, and heard on 30 November 2000. 6. The relevant development is proposed alterations and additions to the company's Gladesville Bridge Marina, at or near a property known as 380 Victoria Place, Drummoyne. 7. Mr Graham appeared for the Council and indicated (T p16 L17-19) that the Council submits to any order the court may make on the motion, except as to costs. The relief sought by the objector 8. At the beginning of the hearing of the motion, leave was granted to the objector to file an amended class 4 application, and that amended application was again amended during the hearing of the motion. 9. The objector now seeks declarations: (a) that the proposed development is "designated development" within the meaning of s77A of the Environmental Planning & Assessment Act 1979 ("the EP&A Act"), and within the meaning of Regulation 53C of the Environmental Planning & Assessment Regulation 1994 ("the Regulation"); (b) that the development application made by the company to the Council ("DA"43/99), was not properly constituted, in that it was not accompanied by an environmental impact statement in breach of s 78A(8) of the EP&A Act; (c) that the Council and/or the court breached s 79 of the EP&A Act in dealing with the DA; and (d) that the Council and the court denied procedural fairness to local residents, including members of the objector, in the following respects: In notifying residents of the Development Application the First Respondent and the Court failed to notify residents in accordance with the Local Approvals Policy and deprived them of the opportunity to object to the Development Application which had a significant visual impact on their amenity; and (e) that the development consent granted by way of the consent orders of 21 December 1999 ("the consent"), is invalid. 10. The following orders are also sought by the objector: (a) That the consent be set aside. (b) That the company (by itself, agents or assigns) be restrained from acting upon or carrying out any work on the land in connection with the development or the development consent. (c) That the company demolish and remove any structures or works erected or performed on the land purportedly pursuant to the development consent in respect of the development application and restore the surface of the land, where appropriate, to its former condition. (d) Costs. 11. No Points of Claim have yet been filed, but the objector's written submissions on this motion (par 30) claim that the objector will allege in these proceedings that, inter alia: (a) Many residents were denied procedural fairness by the Council in that they were not notified of the making of the application notwithstanding that they were owners and occupiers or adjoining or nearby land to that the subject of the application whose enjoyment of their land might be detrimentally affected (in visual terms) by the proposed development contrary to the Council's Local Approvals Policy 1996 (Appendix 3, paragraph 3(a)) the notification of which had been applied by the Council to the notification of development applications; (b) the Council therefore had a duty to accord procedural fairness; (c) the Court, by virtue of s 39(2) of the Court Act, had the same duties of the Council for the purposes of the hearing of and disposal of the appeal, including the duty to accord procedural fairness where the Council had failed in that duty; (d) a decision or order made otherwise than in accordance with the requirements of procedural fairness would be made outside jurisdiction: Parker v DPP (1992) 28 NSWLR 282 at 289E-F, per Kirby P; (e) the Court therefore has inherent jurisdiction to ensure that its procedures do not effect an injustice (Logwon at 28G - 29A) which would be the case where the Court has, even inadvertently, denied procedural fairness before making its decision; (f) alternatively, by virtue of s.39(5) of the Court Act, the decision of Commissioner Watts became the decision of the Council with the consequence that, being a decision of the Council for the purposes of the Act, it was subject to being declared invalid by way of judicial review in class 4 proceedings instituted in the Court. The Notice of Motion 12. The company's notice of motion seeks a declaration that the court has no jurisdiction to entertain this class 4 application, and an order that these proceedings be dismissed, with costs, on the following grounds: 1. The proceedings before the Court are commenced by the applicant and seek a declaration that the conditional development consent granted by Commissioner Watts on 21 December 1999 in respect of premises known as 'Gladesville Bridge Marina' is invalid. 2. A consequential order is also sought that the consent be set aside. 3. The applicant was not a party to those proceedings. 4. The conditional development consent was decided by the Court in Class 1 of the Court's jurisdiction pursuant to the provisions of the Environmental Planning and Assessment Act 1979 and the Land and Environment Court Act 1979. 5. Except as provided by s56 of the Land and Environment Court Act 1979 the decision of the Court in such proceedings shall be final and conclusive. 6. The proceedings do not fall with s56. 7. The decision of Commissioner Watts is a judgment in rem. 8. The applicant is bound by the decision of Commissioner Watts. 9. This Court has no jurisdiction to grant the orders sought by the applicant herein. The general principles to be applied 13. In General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 ("General Steel"), Barwick CJ stated the principles (at 129) in this way: … the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; ' under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'. As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. 14. In Bailey v Marinoff (1971) 125 CLR 529, Barwick CJ said (at 530): Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. 15. In Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937, Cross J said (at 944-5) that it is a : fundamental principle … that prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases. Background to this challenge 16. On 28 September 1999, the Council issued a refusal of DA 43/99, which sought the reconfiguration of moorings at the Gladesville Bridge Marina by the conversion of 40 existing swing moorings to 40 floating pontoon berths. 17. The Waterways Authority had indicated its consent, as landowner, to the lodgment of the development application. Its correspondence made clear that such consent did not imply favouring or supporting the proposal, but said that the Marine Ministerial Holding Corporation "will agree to lease its vested land after development consent is granted". 18. The Waterways letter of 22 January 1999 to the company stipulated some terms and conditions to apply in addition to any imposed by Council upon the development consent. One of the Authority's conditions required "the surrender of 40 commercial swing moorings or such other number as specified by the Council's consent", and another provided for fairway width. 19. The company lodged its class 1 appeal on 12 October 1999. 20. On about 9 December 1999 Mr Graham indicated to the company's solicitor, Mr Fogarty, that the Council would support an application for consent orders to be made to conclude the class 1 appeal. 21. At the hearing before Commissioner Watts on 21 December 1999, two objectors, Mrs Fenton and Mrs Cowell, gave evidence and were cross-examined. Issues such as the "designated development" point were not ventilated (T p17-18). 22. Commissioner Watts after taking "a short while" to consider his report, returned to the Bench and initiated a discussion between Council and the company, which resulted in the amendment of: (i) proposed condition 1 (largely to refer to the statement of environmental effects submitted with the DA) and (ii) proposed order 2 (to correct the address of the marina from "Road" to "Place"). 23. The statement of environmental effects (Exhibit S1) was submitted to Council on behalf of the company by Design Collaborative Pty Ltd. In the introduction (at p 3) the following appears: As Council will be aware, it has advised the applicant company by letter dated 4 June 1998, that the proposed development does not constitute designated development for the purposes of the Environmental Planning and Assessment Act, 1979. Therefore, there is no requirement for an Environmental Impact Statement for the proposed development. However, regard has been had in the preparation of this Statement to the Department of Urban Affairs and Planning's EIS Guideline for Marinas and Related Facilities (September 1996). 24. At p 20, in the section entitled "Conclusions", the following appears: The subject proposal is for the conversion of 40 of the existing swing moorings licensed to the Gladesville Bridge Marina to 40 pontoon berths, involving the installation of two new pontoon arms as an extension of the Marina's existing 10 berth pontoon. The proposal is permissible as land-water interface development under the provisions of Sydney Regional Environmental Plan No.22 - Parramatta River. The assessment of the proposed development carried out in this Statement of Environmental Effects, and the other specialist consultant reports, has demonstrated that there will be no unacceptable adverse impact on the amenity of the locality or the natural environment of the bay as a consequence of the proposed development. The proposed marina extension is considered to be acceptable having regard to the relevant planning objectives in the locality, including the objectives of the Waterways Authority, its relationship with the existing visual environment, its impact on the existing hydrology and aquatic flora and fauna of he bay, potential hazards, traffic and parking impacts and construction/installation impacts. In addition, the design of the proposed pontoons are consistent with the requirements of the relevant standards and guidelines for marinas. Under these circumstances, the proposal is considered to be acceptable having regard to all relevant town planning and environmental issues. 25. The statement of environmental effects contained also photographs depicting the current deployment of boats in the vicinity of the marina on swing moorings, plans indicating fairly precisely the proposed layout of the fixed berths, and a plan of the proposed pontoon. Also included were a report on "Hydrology Aquatic Flora and Fauna and Hazard Assessment" prepared by Hyder (Australia) Pty Ltd, and a parking survey. 26. Commissioner Watts made orders by consent in the following terms: 1. The appeal be upheld. 2. Development Application No.43/99 for the conversion of forty (40) swing moorings to forty (40) pontoon moorings at the Gladesville Bridge, Marina, No.380 Victoria Place, Drummoyne is granted, subject to conditions Nos. 1 to 17 which are annexed hereto and marked with the letter 'A'. 3. The exhibits be retained. 27. These orders were "perfected" by the Registrar on 21 December 1999. The company's contentions 28. The primary contention of the company is that the orders made on 21 December 1999 by Commissioner Watts are "final and conclusive", and that, accordingly, the court has no jurisdiction to grant the relief sought by the objector in these class 4 proceedings. 29. As I understand the company's submissions, the contention is that, as a court of limited statutory jurisdiction, this court's jurisdiction must be found in powers which are expressed or necessarily implied and conferred by the relevant legislation. The general jurisdiction of the court is to be found in s 16 of the Land & Environment Court Act 1979 ("the Court Act"), and its jurisdiction in class 4 proceedings is found in s 20 of that Act. 30. It was Parliament's stated intention that the Chief Judge would delegate, not only to Judges, but also to Commissioners, "the functions of the court in determining proceedings" (Hansard 14.11.1979, Legislative Assembly page 3051 - my emphasis). 31. While the company acknowledges that s 20(1)(c) may appear to be a basis for the class 4 challenge, it contends that the court's jurisdiction as conferred by s 17(d) was exercised by Commissioner Watts, pursuant to s 33(1) and s 36 of the Court Act. Section 36(3) dictates that the decision of the Commissioner shall be deemed to be the decision of the court. 32. Sections 39 and 40 of the Court Act describe the powers of the court in a Class 1 appeal, and the Commissioner, in exercising the court's jurisdiction, was vested with the functions and discretions of the Council, under s 39(2). As the Court Act is not described as a planning or environmental law, within the meaning of those words in s 20(3)(a) of the Court Act, the court is not endowed with civil jurisdiction in these current proceedings pursuant to s 20(2). 33. Section 56 of the Court Act provides that a decision of the court shall be final and conclusive, the only appeals against an order or decision of a Commissioner being provided for in s 56A or s 57. The company submits that in each such case appeals are restricted to questions of law and may be made only by a party to the original proceedings (see also s 61). The time for the bringing of an appeal under s 56A is 28 days (LEC Rules Part 13 Rule 35) and has, in this case, expired. 34. Section 123 of the EP&A Act provides for what are known as "third party appeals" to invoke the court's judicial review jurisdiction in class 4. 35. The company contends that if these current proceedings to invalidate the Commissioner's decision by way of judicial review were found to be properly brought, a number of "surprising and serious (if not absurd) results would follow" (Mr Tomasetti's written submissions par 30), such as: (a) A Judge's class 1 decision could be the subject of judicial review by a fellow Judge of the court upon application by a party, which need not have been a party to the original proceedings. Bignold J said in Tweed Shire Council v The Minister administering the Crown Lands Act & Anor ("Tweed") [1997] NSWLEC 92: "it would be inconceivable (if not legally impossible) that this Court would grant prerogative relief against itself". (b) An application for judicial review could be brought at any time by parties or non-parties, despite the rules of the court. (c) A non-party may have a more advantageous position than a party in having a decision of the court reviewed, as the review would not be confined to errors of law, nor have any time restraint. (d) There could be a multiplicity of challenges to a class 1 decision by different persons at different times on different grounds. (e) There would be no finality to any grant of development consent, nor any conclusiveness to any order or decision of the court made in class 1, despite the provisions of s 56. (f) People would not be able to act with confidence upon development consents granted by the court. 36. Finally, the company concedes that there remains the power in s48 and s69 of the Supreme Court Act 1970 for review of a Land & Environment Court decision. See Howard Silvers Investments Pty Ltd v Sydney City Council & Anor (1998) 99 LGERA 154 ("Howard Silvers"). 37. Following the reservation of judgment on this notice of motion, the company drew the court's attention to the Court of Appeal's decision in Russo v Kogarah Municipal Council [1999] NSWCA 303. I was the Trial Judge from whose decision that appeal was brought, and I agree with the comment of Stein JA that it was "a curious case in many ways". Davies AJA said (at pars 12-15): It is a general precept of law that an issue between parties should, subject to appeal, be determined by a court once and for all. … Circumstances change. The issue whether a development is consistent with a zoning may turn upon the facts as they exist when the issue comes to be decided. Nevertheless, it is an abuse of process for an applicant to bring repeated applications to a court, such as the Land and Environment Court, seeking to re-agitate issues which have as a matter of substance already been determined in prior decisions. The application of this principle is not precluded by the making of some minor changes to a town planning application or by reliance upon an argument or arguments which could have been put were not previously put. If there has been no significant change in circumstances, the new application ought not to be brought. Otherwise, the application will appear to be a collateral attack upon the prior decision or decisions of the Court. 38. His Honour concluded that the subject application to this court was an abuse of process, and that, although I was in error in using the expression "res judicata", I was substantially correct in concluding that the application was such an abuse, it being "in substance a collateral attack upon the earlier decisions" of three Assessors and two Judges of the court. The Court of Appeal dismissed Russo's application on that basis and dismissed his appeal with costs. The objector's submissions 39. The objector submits that it is indeed a "person" within the meaning of s 123 of the EP&A Act. Alternatively, it submits that it has a sufficient interest to commence the Class 4 proceedings, under the principles in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 (at 35). See also Australian Conservation Foundation Inc v The Commonwealth of Australia & Ors (1981) 146 CLR 493 (at 530). 40. The objector submits that the granting of the consent by the Commissioner was an exercise of the court's administrative power and not its judicial power. The objector relies on the observations of Bannon J in North Sydney Municipal Council v Hunglen Pty Ltd & Ors (1992) 74 LGRA 313 ("Hunglen") (at 317), when His Honour held that class 4 proceedings might lie to seek an order that the respondent comply with a condition of development consent granted by the court in orders made by consent through an Assessor (as Commissioners were then called) and perfected by an order of the Registrar. His Honour said: This court is a Superior Court of limited jurisdiction, and when it exercises its judicial power in a class 4 application, in my opinion, it may review judicially its administrative decisions under class 1 and decide whether or not a condition imposed on a development application is valid… 41. See also Harris v Caladine (1990-91) 172 CLR 84 ("Harris"), where Mason CJ and Deane J said (at 95): … the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. [any] … delegation must not be inconsistent with the obligation of a court to act judicially and … the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court [as] … this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration. [see also DJL v Central Authority (2000) 170 ALR 659 (" DJL ")]. 42. The objector contends that this court may exercise its "inherent jurisdiction" (written submissions par 30) to correct any alleged injustice, if proven, notwithstanding the absence of an appeal under s 56A, and notwithstanding that the objector was not a party to the class 1 appeal. 43. In Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 ("Logwon"), Sheller JA held that s 56 of the Court Act did not prevent the Supreme Court exercising jurisdiction to intervene if the Land & Environment Court stepped outside its jurisdiction. 44. In Howard Silvers the applicant, who was not a party to the original proceedings, asked Lloyd J for a declaration that the development consent granted by Talbot J was void and of no effect. Lloyd J did not refer to Logwon, but held that as the court's order had been perfected, the court had no inherent jurisdiction to review the decision, even for excessive jurisdiction. 45. The objector submits that Howard Silvers should not be followed, or is distinguishable from the present case, and that the question of jurisdiction in this matter is sufficiently arguable to attract the principles of General Steel. 46. The objector expressed concern that Lloyd J, in Howard Silvers, overlooked the exceptions to the rule in Bailey v Marinoff , which were stated by Menzies J (at 531-2) thus: This appeal is not concerned with the power of a court to alter orders in pending litigation. It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court. To recognise the problem is, I think, to solve it. However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end. Conclusion 47. The High Court, as recently as in DJL, has relied upon and restated Barwick CJ's "rule" in Bailey v Marinoff. 48. As Callinan J said in DJL (at par 189 on p707), the authority of Bailey v Marinoff has not been doubted in the High Court, and the exceptions to the general rule it states and applies are "few and rarely found in practice", being basically limited, in the absence of statutory provision, to "the correction of formal errors and the like, fraud, or failure to give a party a hearing". See also FAI v Southern Cross Exploration (1987-88) 165 CLR 268 at 281-9. 49. Both DJL and Harris were cases involving the Family Court, which, like this court, is a statutory court established as a superior court of record, but, unlike this court, operates in a particular constitutional context. 50. I can find nothing in those decisions to dissuade me from applying to this case the principles followed by Lloyd J in Howard Silvers. Nor can I find any authority suggesting I should decline to follow those principles, simply because the court's jurisdiction in this case was exercised by a Commissioner, and not by a Judge. 51. On the effect of the relevant statutory provisions in this case, I prefer and accept the submissions of the company (see especially pars 29-34 above), rather than those of the objector (pars 39-46). 52. I also agree with the observations of Bignold J in Tweed, and I accept the submissions of Mr Tomasetti, regarding the serious, and perhaps absurd, consequences of my taking the alternative view (see par 35 above). 53. This court has determined the class 1 proceedings, and cannot now review the perfected orders by way of class 4 proceedings brought by a "third party", whatever other remedy may be available to aggrieved persons. 54. Accordingly, the company's Notice of Motion must succeed. 55. I, therefore, find and declare that this court has no jurisdiction to entertain the current class 4 proceedings, and those proceedings should be dismissed for want of jurisdiction. 56. The court so orders. 57. All questions of costs are reserved. 58. The exhibits may be returned. 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.