> Land and Environment Court of New South Wales CITATION : Helen Lesnewski v Mosman Municipal Council and Anor [2003] NSWLEC 407 revised - 10/05/2004 Helen Lesnewski PARTIES : Mosman Municipal Council RJ Wright and C Wright FILE NUMBER(S) : 40085 of 2002 CORAM: Pain J KEY ISSUES: Judicial Review :- Operation of s 101 of the Environmental Planning and Assessment Act (1979) LEGISLATION CITED: Environmental Planning and Assessment Act (1979) s 101 Breitkopf v Wyong Shire Council (1996) 90 LGERA 269; Calkovics v Minister for Local Government and Planning [1988] NSWLEC 66 (22 September 1988); Coles Supermarket Australia Pty Limited v Minister of Urban Affairs and Planning (1996) 90 LGERA 34; Londish v Knox Grammar School (1997) 97 LGERA; P W Rygate & West v Shoalhaven City Council [1990] NSWLEC 50 (1 May 1990); CASES CITED: R v Hickman, ex parte Fox and Clinton (1945) 70 CLR 598; Sericott Pty Ltd v Snowy River Council(1999) 108 LGERA 66; The Queen v. Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415; Vanmeld v Fairfield City Council (1999) 101 LGERA 297; Woolworths Limited v Bathurst City Council (1987) 63 LGRA 55; Yadle Investments v RTA (1991) 72 LGRA 409 DATES OF HEARING: 07/04/03 EX TEMPORE JUDGMENT DATE : 04/09/2003 APPLICANT: Mr J Webster SOLICITORS: Hunt and Hunt FIRST RESPONDENT: Mr P. Tomasetti LEGAL REPRESENTATIVES: SOLICITORS: Pike Pike and Fenwick SECOND RESPONDENTS: Mr J.E. Robson SOLICITORS: Freehills JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40085 of 2002 Pain J 9 April 2003 HELEN LESNEWSKI Applicant v MOSMAN MUNICIPAL COUNCIL First Respondent RJ WRIGHT and C WRIGHT Second Respondents Judgment 1. This case concerns a development consent granted by the Council on 28 August 2000 to the Second Respondents to undertake certain building work, including the construction of a swimming pool. A construction certificate was granted in relation to the development consent on 4 December 2000 and, most importantly for this particular matter, a s 101 advertisement, dated 7 September 2000, was published by the Council in the relevant local paper. The Applicant commenced class 4 proceedings in May 2002 which was outside the three-month time limit specified in s 101. 2. Section 101 of the Environmental Planning and Assessment Act (1979) ("the EP&A Act") provides that, if public notice of the granting of consent or of a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consental certificate cannot be questioned in any legal proceedings, except those commenced in the Court by any person at any time before the expiration of three months from the date on which public notice was given. 3. The Applicant in its Class 4 application, seeks declarations, on three separate grounds, that the development consent granted by the Council on 28 August 2000 and the construction certificate dated 4 December 2000 granted by the Council are null and void. 4. The three grounds claimed by the Applicant are as follows: (1) there was a failure to accord natural justice to the Applicant because the terms of the Council's Notification Development Control Plan were not complied with ("the Natural Justice Ground"); (2) there is a lack of jurisdiction in the grant of the Council's development consent because the general manager, who made the decision under delegated authority, did not, in the circumstances of this case, have the authority to give consent under the terms of the delegation ("the Lack of Jurisdiction Ground"); and (3) the construction certificate dated 4 December 2000 issued by the Council is not consistent with the development consent ("the Construction Certificate Ground"). 5. In relation to the Natural Justice Ground, the Amended Points of Claim specify that a letter of notification dated on or about 18 May 2000 was sent by the Council to the Applicant notifying the Applicant of the Second Respondent's proposal, but contrary to the requirements of the development control plan, no plans of the proposed development were included with the letter. Further, the amended points of claim allege that when the Applicant's brother attended the Council chambers to see the plans on or about 6 June 2000 he was unable to see the plans. 6. I note that the relevant parts of the Notification Development Control Plan which are relied on are detailed at par 20 of the Amended Points of Claim as follows: At the time of the submission of the Second DA the First Respondent had adopted a Notification DCP under the provisions of the EPA Act. That Notification DCP provided, inter alia: "Neighbours will be notified about the following items: - a description of the address of the land and the proposed development - the name of the applicant and the consent authority - the location of the consent authority's principal office - details of where the application can be inspected (both at Council offices and at Mosman Library) and the time limits for inspection - how submissions may be made and the specific items of the application to which submissions can be addressed - whether there is a right of appeal for those who submitted an objection In addition, those being notified will receive: - a reduced (A4) copy of the notification plans (essentially the development footprint, elevations, placement of windows, etc) for the development - information about how to access other documentation lodged in support of the application - those making a submission on the proposed developments will have to lodge their submissions according to the time limits set out above." 7. The Respondents have argued that s 101 is a bar to these proceedings as the so-called Hickman principle applies and, as a result, none of the three grounds raised by the Applicant may be pursued. 8. I should note that the Hickman principle is derived from a decision of Dixon J in the case of R v Hickman, ex parte Fox and Clinton (1945) 70 CLR 598 where he said at 615 that: …no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or is not confined within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its powers that it relates to the subject matter of the legislation that it is reasonably capable of reference to the power given to the body. 9. The Hickman principle, as it has come to be known, is generally expressed on the basis that privative clauses, such as that contained in s 101 of the EP&A Act, are a bar to court proceedings unless there is manifest jurisdictional error, bad faith or manifest ultra vires apparent. It is agreed that if the Hickman principle applies to s 101 then, as there is no manifest jurisdictional error or bad faith alleged or manifest ultra vires alleged, there is no basis on which to argue that s 101 does not apply in this case to bar the Applicant's claim. 10. I should note that there are several cases in which the Land and Environment Court has held that the Hickman principle applies to s 35 of the EP&A Act (which is a similar provision to s 101) in relation to Pt 3 of the Act and to the predecessor to s 101, s 104A. I was particularly referred to the decisions of Yadle Investments v RTA (1991) 72 LGRA 409, a decision of Stein J when he was a judge of this Court, in which he considered s 35 of the EP&A Act and held that the manifest jurisdictional error or ultra vires must be obvious on the face of the document. 11. Pearlman J also considered s 35 of the EP&A Act in Coles Supermarket Australia Pty Limited v Minister of Urban Affairs and Planning (1996) 90 LGERA 34 and held that the Hickman principle applied to that section. Similarly, Pearlman J also held in P W Rygate & West v Shoalhaven City Council [1990] NSWLEC 50 (1 May 1990) that the Hickman principle applied to s 104A of the EP&A Act. 12. I should also note that Stein J considered, in the matter of Calkovics v Minister for Local Government and Planning [1988] NSWLEC 66 (22 September 1988), that a challenge under s 35 of the EP&A Act was open on the grounds of bad faith and, in that case, a breach of the rules natural justice. I note he also held that, in that case, as the proceedings were commenced in time, the relevant bar did not, in fact, operate. 13. There is also an early decision of Cripps J in Woolworths Limited v Bathurst City Council (1987) 63 LGRA 55 in which he expressed the view that s 35 and s 104A may not prevent a challenge on the basis of a breach of the duty to accord procedural fairness. 14. I also note that Stein J, when on the Court of Appeal, expressly refused to consider a similar issue in the matter of Londish v Knox Grammar School (1997) 97 LGERA 1 because it did not arise in the circumstances of that case. Stein J did, however, note that there may be a situation where a breach of procedural fairness could arise in the context of bad faith. 15. I contrast these decisions with several decisions that have held that s 35 or s 104A are, in fact, time limited clauses, with the result that there is no basis for appeal on any ground once the relevant time limit has expired. I refer particularly to the decision of Bignold J in this Court in Vanmeld v Fairfield City Council (1999) 101 LGERA 297 at first instance where, in considering s 35 of the EP&A Act and an earlier decision of his Honour in Breitkopf v Wyong Shire Council (1996) 90 LGERA 269, he held that s 104A is a time limited provision. This decision was upheld in Vanmeld by Powell JA in the Court of Appeal and Powell JA expressed a similar view in Sericott Pty Ltd v Snowy River Council (1999) 108 LGERA 66. 16. It is in the context of these cases that I must decide the matter before me. I will deal with Lack of Jurisdiction round first, then the Natural Justice Ground and then the Construction Certificate Ground. The Lack of Jurisdiction Ground 17. In relation to the lack of jurisdiction which the Applicant has alleged, the Respondents argue that the development consent is regular on its face and that it appears to have been made pursuant to a bona fide exercise of power. The Respondents rely on the decision of Beazley JA in the Court of Appeal in Sericott Pty Ltd v Snowy River Council where her Honour held that s 104A is a privative clause to which the Hickman principle applies and excluded a review of the Council's decision in that case on the assumption the Council had no power to grant the consent in question. The Respondents argue that Sericott applies directly on this ground and that, since it is binding on me, I must follow it. 18. The Applicant sought to distinguish Sericott , arguing that the lack of jurisdiction ground before me is different to the legal issue before the Court of Appeal and the decision of Beazley JA, but I am unable to see how the Court of Appeal decision can be materially distinguished from the matter before me. The way the Lack of Jurisdiction Ground is expressed by the Applicant in this case is different to that in Sericott , but at its core, it seems to me that the legal issue is the same. So, given that Sericott appears to be exactly on point and it is binding on me, I find in favour of the Respondents in relation to the lack of jurisdiction aspect. The Natural Justice Ground 19. I turn now to the natural justice ground which is certainly not quite as straight forward. The Respondents argue that Sericott also applies, albeit not explicitly, to the breach of natural justice ground, as alleged by the Applicants, so that if the Hickman principle applies, a breach of natural justice is a ground of review excluded by s 101 of the EP&A Act. 20. The Respondents also argue that the breach of natural justice alleged here is a breach of statutory rules, rather than common law, and that this makes the cases in the Land and Environment Court which have applied the Hickman principle all the more relevant. The Respondents argue that the dissenting opinion of Spigelman CJ in the Vanmeld decision, on which the Applicant relies, is not binding on me and should not be followed. 21. The Applicant argues that the reasoning of Beazley JA in Sericott does not apply to a breach of natural justice as it dealt with a different ground concerning a lack of power. The Applicant is relying in the main on the dissenting judgment of Spigelman CJ in Vanmeld to argue that claims based on a denial of natural justice are not excluded by operation of the Hickman principle. Spigelman CJ relied on the High Court in Darling Casino Limited v New South Wales Casino Control Authority (1997) 71 ALJR 540, amongst other cases, to demonstrate that the Hickman principle is a principle of statutory construction and, as a result, considered the regime for public participation in Pt 3 (which was an issue in Vanmeld ) in some detail. He ultimately held at par 184 that the law of statutory construction requires that a privative clause should be subject to a particularly strict construction when the issue is whether parliament intended an ouster or privative clause to impinge on the applicability of fundamental principles. The EP&A Act does not contain a sufficient indication that such was intended. According to the Applicant, Spigelman CJ in Vanmeld did not think that parliament intended there to be an ouster of a claim on the basis of a breach of procedural fairness. 22. The Applicant submitted that Pt 4 of the EP&A Act, particularly as recently amended, has substantial public participation provisions and so, if it was subject to the same analysis as the decision of Spigelman CJ in Vanmeld , this would demonstrate that, as a matter of statutory construction, s 101 does not exclude challenges on the basis of breaches of natural justice. 23. Further, the Applicant argues that there is an inconsistency between the delegated power granted to the Council's general manager and the Local Government Act 1993, which the general manager was operating under, and the power of the Council to grant developing consent exercised under the EP&A Act. The Applicant argues that the effect of this inconsistency is that s 101 cannot be interpreted to apply so that it is limited only by the Hickman principle. I note that the Applicant's written submissions placed reliance on the decision of Brennan J in The Queen v. Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 where he refers to Dixon J in R v Murray ex parte Proctor as follows: As Dixon J explained in Murray R v Murray Ex parte Proctor (1949) 77 CLR 387 at 398 - 399], and in other cases, it is a matter of reconciling the prima facie inconsistency between one statutory provision which seems to limit the powers of the Tribunal and another provision, the primitive clause, which seems to contemplate that the Tribunal's order shall operate free from any restriction. The inconsistency is resolved by reading the two provisions together and giving effect to each. The privative clause is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which prohibition lies. Finding on the Natural Justice Ground 24. It is not strictly necessary that I decide definitively in this matter whether s 101 excludes all challenges on the basis of a breach of natural justice under the EP&A Act. My tentative view only is that the Hickman principle does apply to limit the application of s 101 in the context of a breach of natural justice. I consider that, in the case as pleaded here, the alleged breach of natural justice is not a sufficient breach to warrant holding that s 101 does not apply. Indeed, it is debateable on the pleadings that there is any breach of natural justice at all. 25. Even if I applied the approach taken by Spigelman CJ in Vanmeld , so that the same detailed consideration which Spigelman CJ applied to Pt 3 (to which s 35 relates) is applied this case to Pt 4 of the EP&A Act, as the Applicant argued it should be, I do not think the same conclusion of statutory construction is likely to give rise to a finding that procedural fairness has not been observed. 26. The alleged breach of natural justice relates to the breach of the Council's Notification Development Control Plan. Assuming that the Applicant is able to prove its case as pleaded, it is clear that there has not been a manifest failure to comply with the provisions of the Notification Development Control Plan on the part of the Council. At best, there may be irregularities which the Applicant could have overcome relatively easily by, for example, attending or having her agent attend at the Council chambers on another occasion to inspect the relevant plans. 27. While I accept and agree that Pt 4 of the EP&A Act contains detailed provisions which relate to public participation, it has always done so and certainly did at the time that s 104A, now s 101, was introduced. Accordingly, I do not accept the Applicant's submission that there is an even greater emphasis on public participation in Pt 4 than previously due to reasons which were largely unspecified amendments to the EP&A Act. 28. In relation to my tentative finding that the Hickman principle applies so that breaches of natural justice are excluded, the reasoning of Spigelman CJ in Vanmeld on which the Applicant relies, has not been followed either in this Court or the Court of Appeal. It is contrary to: (a) several other decisions by single judges in the Land and Environment Court; (b) the decisions of Powell JA in the Court of Appeal, who has stated on two occasions he considered that similar clauses are time limited provisions; and also possibly (c) that of the decision of Beazley JA in Sericott . 29. I note there are several decisions by judges of this Court which have suggested that breaches of natural justice are not matters which justify the conclusion that s 101 does not apply. The judgment that most clearly elaborates this issue in the context of s 35 of the EP&A Act is that of Pearlman J in Coles Supermarket . 30. In relation to the context in which the rules of natural justice operate in the EP&A Act, the approach taken by Pearlman J in Coles Supermarket at p 349 is, in my view, quite persuasive where she states: The second (and, it seems to me, the better) approach is to apply the Hickman principle on the basis that, at least in the context of the EP&A Act, the rules of natural justice are procedural rules which govern the exercise of powers conferred on the decision-maker under that Act. As Mason J pointed out in Kioa v West (1985) 159 CLR 550 at 584-585, what is appropriate in terms of natural justice depends on the circumstances of the case, which will include, amongst other things, the rules under which the decision-maker is acting. The rules of natural justice do not operate in a vacuum; they operate to cast a duty upon the decision-maker, when exercising the powers conferred by the statute, to act fairly. In that sense, rules of procedural fairness could be said to be rules governing the exercise of a power under the statute, and there will be, in the context of the EP&A Act, an apparent inconsistency with the operation of those rules and s 35 which operates to confer validity on an exercise of power despite non-compliance with those rules. In these circumstances, the application of the Hickman principle is appropriate. 31. One reason my view is tentative on this point is that I note the decisions of Stein J in Calkovics and Londish where he makes reference to the possibility that there could be a breach of natural justice in circumstances where there is also bad faith, which he found to be the situation in Calkovics and in Londish where he noted but did not decide that issue because it did not arise. If such circumstances were found to exist it may be that a strict application of the Hickman principle is inappropriate. I note, however, that there is no suggestion of bad faith in this matter, so it does not arise before me. 32. Further, I do not accept the Applicant's argument that, in this case, there is any inconsistency between the different Acts, namely, the Local Government Act 1993, and the delegation of powers conferred under that Act and the EP&A Act in relation to the operations of the Council in granting development consent. Accordingly, there is no inconsistency which must be resolved by concluding that s 101 does not apply. 33. Therefore, in relation to the ground relating to a breach of natural justice, I find in favour of the Respondents. The Construction Certificate Ground 34. That brings me to the third ground raised, namely, whether the construction certificate has been correctly issued. The Respondents argue that, under s 80(12) of the EP&A Act, a construction certificate is incorporated into the development consent. As the development consent has been advertised under s 101, the construction certificate is also beyond challenge. This conclusion is said to be clear as a matter of statutory construction when s 80(12) is considered. 35. The Applicant, however, argues that the construction certificate is not referred to specifically under cl 154 of the regulations to the EP&A Act which specify what has to be done when the issue of a s 101 advertisement is undertaken. Unless there is absolutely clear wording to suggest that the construction certificate ought be caught by s 80(12), s 80(12) should not be interpreted on the basis that it is incorporated so that s 101 is a bar to a challenge to the construction certificate. 36. I prefer the statutory construction argued for by the Applicant. I do not think that s 80(12) is so clear in its scope that a construction certificate incorporated into a development consent is also immune from challenge under s 101. Accordingly, I find that the Applicant's challenge on this ground is valid. 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.