Land and Environment Court of New South Wales CITATION : Hainbury Pty Limited v Campbelltown City Council [2007] NSWLEC 713 APPLICANT: Hainbury Pty Limited (ACN 003 811 685) PARTIES : RESPONDENT: Campbelltown City Council FILE NUMBER(S) : 10659 of 2007 CORAM: Lloyd J KEY ISSUES: Jurisdiction :- notice of determination - appeal lodged - refusal of consent - deemed refusal - appeal is out of time - summary dismissal - costs LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 82(1), s 82A, s 97(1) Environmental Planning and Assessment Regulation 2000 cl 113(1) CASES CITED: Grant v Kiama [2006] NSWLEC 70 DATES OF HEARING: 21 September 2007 EX TEMPORE JUDGMENT DATE : 21 September 2007 APPLICANT: Mr. J A Ayling SC & Mr. R Keller SOLICITORS: LEGAL REPRESENTATIVES: Davis Legal DEFENDENT: Mr. A Seton (sol) Marsdens Law Group JUDGMENT: - 9 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Friday, 21 September 2007 LEC No. 10659 of 2007 HAINBURY PTY LIMITED v CAMBELLTOWN CITY COUNCIL [2007] NSWLEC 713 EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a notice of motion by the respondent, Campbelltown City Council, that the proceedings be summarily dismissed on the ground that the court has no jurisdiction to hear the matter. The relevant facts may be briefly described. 2 On 1 December 2005, the council received a development application for a grocery shop and a second development application for associated signage in relation to two shops in Minto. On or about 31 May 2006 a notice of determination was sent to the applicant in relation to the grocery shop. On the same day a notice of determination was sent to the applicant in relation to the application for associated signage. 3 On or about 25 May 2007 the applicant requested the respondent to review its determination of both applications pursuant to s 82A of the Environmental Planning and Assessment Act 1979 (the EP&A Act). On 13 July 2007, the applicant lodged an appeal in Class 1 of the Court's jurisdiction against the refusal of the consent for the shop and the sign, and against the deemed refusal by the failure of the council to determine on review the application under s 82A of the Act. 4 In my opinion, for reasons which I can shortly state, the council's notice of motion must be upheld; that is, there is no jurisdiction in the court to determine the appeal. 5 The determination of the question turns upon a number of provisions of the EP&A Act. Firstly, s 97(1) states: An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the court within 12 months after: (a) the date on which the applicant received notice, given in accordance with the regulations of the determination of that application, or (b) the date on which that application is taken to have been determined under section 82(1). 6 The reference to s 82(1) is also relevant to the questions before the court. Section 82(1) states: A consent authority that has not determined a development application within the relevant period prescribed by the regulations applicable to the development the subject of the development application is, for the purpose only of s 97, taken to have determined the application by refusing consent on the date on which the period expires. 7 The "relevant period prescribed by the regulations" referred to in s 82(1) is found in cl 113(1) of the Environmental Planning and Assessment Regulation 2000: (1) For the purpose of section 82(1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within: (a) 40 days, except in the case of development referred to in paragraph (b)… 8 The only other relevant provision of the EP&A Act is s 82A, which is as follows: (1) If the consent authority is a council, an applicant may request the council to review a determination of the applicant's application, other than: (a) a determination to issue or refuse to issue a complying development certificate, or (b) a determination in respect of designated development, or (c) a determination in respect of integrated development, or (d) a determination made by the council under section 116E in respect of an application by the Crown. (2) A request for a review may be made at any time, subject to subsection (2A). (2A) A determination cannot be reviewed: (a) after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or (b) after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination. (3) The prescribed fee must be paid in connection with a request for a review. (3A) In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4) (c). (4) The council may review the determination if: (a) it has notified the request for review in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and (b) it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be, and (c) in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application. (4A) As a consequence of its review, the council may confirm or change the determination. (5) The decision whether or not to review the determination must not be made by the person who made the determination unless that person was the council, but is to be made by a person who is qualified under subsection (6) to make the review. (6) If the council reviews the determination, the review must be made by: (a) if the determination was made by a delegate of the council—the council or another delegate of the council who is not subordinate to the delegate who made the determination, or (b) if the determination was made by the council—the council. (7) The council must give notice of the result of the review to the applicant as soon as practicable after the review. (8) If on the review the council grants development consent, or varies the conditions of a development consent, the council must endorse on the notice the date from which the consent, or the consent as varied, operates. (9) If on a review the council changes a determination, the changed determination replaces the earlier determination as from the date of the review. (10) If on a review the council grants development consent, or varies the conditions of a development consent, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 97 in respect of its determination withdrawn at any time prior to the determination of that appeal. (11) A decision on a review may not be further reviewed under this section. 9 The question is a relatively simple one: whether or not the applicant has commenced an appeal within the time allowed by s 97(1). In the present case, the applicant is clearly outside the time following the determination of the development application; that is, the development application was determined on or about 31 May 2006, the proceedings were commenced in this court on 13 July 2007. 10 The argument as I understand it on behalf of the applicant is that by making an application for review under s 82A within the time, which application for review has not yet been determined, the appeal has been brought within time. There are a number of difficulties with this submission. 11 Firstly, an application for review is not a development application. Section 82A employs the term "request"; that is, an applicant may request the council to review a determination. Subs (2), refers to the time within which a request for a review may be made, and the use of the word "request" denotes the grant of a power to the council rather than an obligation to review an application for review. This I think is a reason why a request for a review under s 82A was not included in s 82(1). 12 Returning to s 82(1), it is clear that a request for review is not subject to that deemed refusal provision in the same way as that subsection applies to a development application. Section 97(1), I have noted, includes the words, "(including a determination on a review under s 82A)"; that is, if the council determines a review under s 82A then a right of appeal subsists until a period of twelve months has elapsed after the date of that review. This much is confirmed by s 82A(9), which is quoted in par [8] above. 13 In the present case the council has not reviewed the development application following the application for a review. That in my view is fatal to the present appeal that has been lodged. It is submitted on behalf of the applicant that the legislation is defective and does not fully reflect its intent in the enactment of s 82A, and I am asked to read words into s 82(1) which are not there. I cannot do that. 14 It follows therefore that the appeal is out of time and the council's notice of motion must be granted. I should add that these reasons are somewhat abbreviated because I think it is important that I deal with the matter immediately rather than let the matter lapse for a long time in a long list of reserved judgments awaiting to be written. AYLING: Your Honour, that judgment of course deals with the principal issue. But your Honour will recall that a large proportion of the debate also turned upon the words of s 82(2A), and it would be of assistance I think to the legal profession generally if your Honour would express a view about that. The situation is that the 82A review application has been made but not determined. The council now says we can't determine it because of the operation of s 82(2A). If they're right, that's an end to the matter. But if they're not right, and my submission in relation to the way in which one reads (2) and (2A) together is correct, council could still determine the 82(2A) review. And if it did, on the judgment your Honour has just given there would then be a right of appeal. I'm not in a position to insist, but would your Honour regard that potential situation of a dispute still existing between parties as to whether the council has the capacity to deal with the s 82A application as an appropriate matter to address even in obiter. 15 HIS HONOUR: Yes, I'm prepared to do that. Section 82A(2A) of the EP&A Act sets out when a determination cannot be reviewed, as noted in par [8] above. 16 Section 82A(2A) refers to an appeal under s 97. The case here is that there is no valid appeal against the determination; that is, there was no right in the appellant to bring an appeal, the time under s 97 having expired. The consequence, in my opinion, is that the request for a review cannot be determined and there is no power to do so. 17 HIS HONOUR: Is there anything else? SETON: Your Honour, I seek - subject to your order in that matter an order for costs pursuant to the motion that-- HIS HONOUR: Mr Ayling? AYLING: There's not much I can say about it except that it is a matter of considerable importance. And that the application was made within time - your Honour has resolved a matter which has remained unresolved for a very long period of time, it was not unreasonable for the applicant to have lodged the appeal, taking into account the uncertainty and the state of the Act. SETON: Your Honour, the council would contend that it is fair and reasonable in the circumstances of this case. Whilst I recognise that you have a wide discretion under s 69 in relation to the making of costs orders, and having regard to the Hunter Development Brokerage decision in that regard, I would rely upon the decision and the summary of matters that the Chief Judge has set out Grant v Kiama [2006] NSWLEC 70, and in particular paras 15(a) and (a) where his Honour indicated that where proceedings ceased to have the character of a merits review, where the central issue is whether there is power to grant the approval sought at all, or where the matter the subject of the costs application involves any preliminary question, the costs in those cases are usually seen as following the event. And the central issue in this particular matter was a matter of jurisdiction. I accept that it was of some novelty, however it is in the nature of a preliminary question and costs should follow the event. HIS HONOUR: Was any correspondence or letter sent to the applicant saying you have not got a right of appeal for these reasons? SETON: There was a letter sent at the beginning of the matter, your Honour - and if you would like I can tender that letter - indicating that as far as the council was concerned that there was no appeal right available in respect of this matter because of the reasons we've set out in these submissions. And I'm happy to tender a copy of that letter if there is any contest about that. AYLING: I'd like to see the letter just to see when it was sent. SETON: Yes. AYLING: If it's the letter of 27 July-- SETON: It is. AYLING: It says that: "Enclose a copy of a our notice of appearance. The proceedings have not been commenced within 12 months after the date on which notice of determination of the applications was given. The court therefore has no jurisdiction to determine the proceedings." That as I understand it is not the essential basis upon which your Honour has held that the proceedings are incompetent. Your Honour has held that on the basis that they purport to rely upon a deemed refusal, and your Honour has held that there is no deemed refusal because of the lack of relationship between s 82(1) and s 97(1). SETON: I also tender a second letter of 8 August. AYLING: And it wasn't until 8 August I'm now told that a letter raising that point was sent. So it was well after the institution of the proceedings before the point has been raised. HIS HONOUR: And when was the notice of motion filed, 22 August? SETON: Yes. AYLING: Yes. HIS HONOUR: And the letters predate the notice of motion? AYLING: The letters predate the notice of motion. 18 HIS HONOUR: I think in the special circumstances of this case there should be no order as to costs because it does raise a question which apparently and surprisingly has not been raised before. It is also a question the resolution of which is of some assistance to those involved in local government and appeals to this court and will enable them to have the benefit of the court's judgment in this case. I hereby certify that the preceding 18 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate *************** 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.