Reported Decision : 137 LGERA 178 New South Wales Court of Appeal CITATION : The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources & Anor [2004] NSWCA 424 revised - 6/12/2004 HEARING DATE(S) : 9 November 2004 JUDGMENT DATE : 25 November 2004 JUDGMENT OF : Sheller JA at 1; Giles JA at 2; Santow JA at 46 DECISION : (1) Appeal allowed; (2.) Set aside the orders that the applicant's Class 4 application is dismissed and that the applicant pay the respondents' costs; (3) Declare that the provisions of State Environmental Planning Policy No 53 - Metropolitan Residential Development inserted by State Environmental Planning Policy No 53 - Metropolitan Residential Development (Amendment No 10) do not apply to or in respect of the determination of the application for development consent lodged by the applicant on 30 May 2003 for dual occupancy development on land at 385 Bobbin Head Road, North Turramurra; (4) Subject to 5, respondents pay the appellant's costs of the proceedings in the Land and Environment Court and the appeal; (5) Appellant pay the second respondent's costs of the notice of motion filed on 24 September 2004; (6) Respondents to have certificates under the Suitors Fund Act if otherwise qualified. CATCHWORDS : Environmental planning instrument - clause that provision does not apply to determination of a development application made before the provision's commencement - development application lodged - amendment adds provision - having effect that consent can not be granted - also adds provision that the provision having that effect applies to a development application made before its commencement - Act provides that amendments do not affect vested rights - whether vested right acquired on lodgment of development application - held yes - new provisions do not affect its determination. D Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161; Byron Shire Council v Greenfields Mountain Pty Ltd (1999) 105 LGERA 445; The Colonial Sugar Refining Co Ltd v Irving (1905) AC 369; Druitts Developments Pty Ltd v Gosford City Council (2001) 114 LGERA 61; Esber v The Commonwealth of Australia (1992) 174 CLR 430; J R Exports Pty Ltd v Australian Trade Commission (1986) 71 ALR; Mathieson v Burton (1971) 124 CLR 23; CASES CITED : Maxwell v Murphy (1957) 96 CLR 261; Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685; Q & R Developments Pty Ltd v Sutherland Shire Council (2001) 117 LGERA 438; Robertson v City of Nunawading (1973) VR 819' Sofi v Wollondilly Shire Council (1975) 31 LGERA 416; Wilson v First County Trust Ltd (No 2) (2004) 1 AC 816; Ungar v City of Malvern (1979) VR 259. The Dubler Group Pty Ltd - Appellant PARTIES : Minister for Infrastructure, Planning and Natural Resources - First Respondent Ku-ring-gai Municipal Council - Second Respondent FILE NUMBER(S) : CA 40590/04 P Tomasetti & J Johnson - Appellant COUNSEL : J Griffiths SC & J Jagot - First Respondent P McEwen SC & A Pearman - Second Respondent Maddocks - Appellant SOLICITORS : C Hanson, General Counsel, Department of Infrastructure, Planning and Natural Resources - First Respondent Deacons - Second Respondent LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT 41591/03 FILE NUMBER(S) : LOWER COURT Pain J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40590/04 LEC 41591/03 SHELLER JA GILES JA SANTOW JA Thursday 25 November 2004 THE DUBLER GROUP PTY LTD v MINISTER FOR INFRASTRUCTURE PLANNING AND NATURAL RESOURCES & ANOR Judgment 1 SHELLER JA: I agree with Giles JA. 2 GILES JA: State Environmental Planning Policy No 53 – Metropolitan Residential Development ("SEPP 53") came into force on 25 September 1997. It was intended to promote a more compact metropolitan region by permitting integrated housing development, dual occupancy development and multi unit housing. Part 3 of SEPP 53, dealing with dual occupancy, applied to all land in the Ku-ring-gai local government area within a residential zone (cl 16(1)) save for the land within an area described in Schedule 3 (cl 16(2)). As at 25 September 1997 no area was described in Schedule 3. A note in the Schedule said that it "is blank until material is inserted in accordance with cl 16(2)". 3 On 30 May 2003 the appellant lodged with Ku-ring-gai Municipal Council ("the Council") an application for consent to a dual occupancy development. At that time still no area was described in Schedule 3 to SEPP 53, and it was open to the Council to grant the consent. 4 SEPP 53 included, under "Part 6 Transitional provisions" - " 33 Development applications made before commencement of Policy A provision of this Policy does not apply to or in respect of the determination of a development application made, but not determined, before the commencement of the provision." 5 The Council did not make a timely determination of the application. On 12 August 2003 the appellant appealed to the Land and Environment Court ("the Court") against the deemed refusal of the application. The proceedings were part heard when, on 19 December 2003, SEPP 53 was amended by State Environmental Planning Policy No 53 – Metropolitan Residential Development (Amendment No 10) ("Amendment 10"). 6 The stated purpose of Amendment 10 was to exclude from the operation of Pt 3 of SEPP 53 bush fire prone land and land where there was an evacuation risk in the event of bushfire. The amendments to SEPP 53 were - " [1] Clause 44 Insert after clause 43: 44 Determination of certain development applications – effect of SEPP 53 (Amdt 10) Despite clause 33, this clause and the amendments made to this Policy by State Environmental Planning Policy No 53 – Metropolitan Residential Development (Amendment No 10) extend to development applications, made, but not finally determined, before the commencement of State Environmental Planning Policy No 53 – Metropolitan Residential Development (Amendment No 10). [2] Schedule 3 Areas excepted from Part 3 (Dual occupancy) Omit the note. Insert instead: Land that is: (a) identified on a bush fire prone land map certified under section 146 of the Act as 'Bush fire prone land – vegetation category 1', or (b) shown cross-hatched on the map marked 'State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (Amendment No 5) Bush Fire Evacuation Risk Map' deposited within the Department of Infrastructure, Planning and Natural Resources". 7 The land now in Schedule 3 to SEPP 53 included the appellant's land. 8 The appellant brought further proceedings in the Court challenging the validity of Amendment 10 and its effect so as to preclude consent to the appellant's development application. Its part-heard appeal was stood over to await the decision in the further proceedings. 9 The further proceedings were heard by Pain J on 22 March 2004. Her Honour gave judgment on 2 July 2004. She upheld the validity of Amendment 10, and there is no appeal from that decision. She also held against the appellant on the effect of Amendment 10. 10 The appellant's case before the judge, repeated on appeal, invoked s 34(4)(b) of the Environmental Planning and Assessment Act 1979 ("the Act"), which relevantly provides - "(4) The amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect: … (b) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument … ". 11 The appellant submitted that it had an acquired or accrued right or privilege which, by force of s 34(4)(b), Amendment 10 did not affect. It is sufficient to refer to a right; the appellant did not suggest that anything was materially added by the label of a privilege. It submitted that it had acquired the right upon lodgement of its development application, being a right conferred by cl 33 to have the development application determined on the basis of SEPP 53 as it stood at the time the development application was lodged. 12 The judge considered many authorities and gave comprehensive and careful reasons. I intend no disrespect in referring to her Honour's reasons but briefly. 13 The issues before the judge included whether cl 33 applied to development applications made before the commencement of SEPP 53, as the heading suggested, or to development applications whenever made, as its language (and the new cl 44) suggested. Different views had been expressed in relation to a similar clause in Druitts Developments Pty Ltd v Gosford City Council (2001) 114 LGERA 61 and Q & R Developments Pty Ltd v Sutherland Shire Council (2001) 117 LGERA 438. The judge took the latter view, and the issue was not revived on appeal. 14 The nub of her Honour's holding as to acquisition of a right can be found in [34] – [35] - "34. It is necessary to consider closely the wording of cl 34(4)(b) which refers to "any right, privilege …acquired, … accrued … under the instrument" to determine if in these circumstances the Applicant has by virtue of cl 33 accrued a right under the SEPP. In order for the Applicant to successfully argue that cl 33 confers a right or privilege which s 34(4)(b) protects, the Applicant must show that when its development application was lodged with the Council, the time the Applicant argues its right or privilege accrued, cl 33 gave it an enforceable accrued right on which it relied in making its development application to the Council. At the time of making its development application to the Council the Applicant had no need to rely on cl 33 to lodge its development application with the Council, so that I do not consider that a right or privilege within the meaning of s 34(4) then accrued to the Applicant under cl 33 at that point. I consider that at best the Applicant had a "hope or expectation", as referred to in Ho Po Sang , at the time of lodgement of the development application with Council that the SEPP would continue in its then existing form. No right or privilege within the meaning of s 34(4)(b) was conferred on the Applicant at the time of lodgement of the development application because of cl 33. It is therefore open to the Minister to amend cl 33 and to suspend its operation as he has done in cl 44 as cl 34(4)(b) does not apply. 35. Much clearer intent must be demonstrated in the wording of cl 33 if the argument that it is intended to confer a right or privilege which vests in an individual at the time a development consent is lodged for determination is to succeed. … " 15 In my opinion, the appellant's criticism of her Honour's reasoning should be accepted. It was not necessary that the appellant relied on cl 33 in making its development application to the Council. Reliance did not matter. If the appellant acquired a right conferred by cl 33, it acquired the right whether or not it gave thought to cl 33 or to the possibility of amendment of SEPP 53 whereby it contained a later commencing provision. Nor did it matter whether or not at the time it lodged its development application the appellant needed to rely on cl 33. At that time it had no need because there was no later commencing provision, although it might have a need if amendment brought a later commencing provision. What mattered was whether it had acquired a right in case of need. 16 The effect of Amendment 10 should be considered afresh on the submissions in this Court. 17 If there had been no more than inclusion of its land in Schedule 3, the appellant would not have had to argue for an acquired right within s 34(4)(b) of the Act. By force of cl 33, its development application would have been determined under SEPP 53 as it stood prior to Amendment 10. The impediment to that occurring was cl 44, also a provision of SEPP 53, which did not directly amend cl 33 but so far as Amendment 10 included land in Schedule 3 negated its application to applications for development consent made but not finally determined. 18 The popular conundrum of the chicken and the egg comes to mind. Did cl 33 take precedence so that cl 44, a provision of SEPP 53 commencing after the appellant made its development application, did not apply to or in respect of the determination of the development application? Or did cl 44 take precedence, qualifying cl 33 so that, to the extent provided, the application of cl 33 was negated? The submissions assumed the latter position, as was plainly enough the intention demonstrated by the words "Despite clause 33 … " and the concurrency of the fields of a development application made but not determined. 19 So it came down to the acquisition of a right within s 34(4)(b) of the Act. Section 34(4) is not expressed to be subject to a contrary intention, and the respondents did not submit that cl 44 trumped s 34(4)(b). For its part the appellant accepted that, if its submission were accepted, cl 44 would have no operation at all. 20 The power to amend an environmental planning instrument by a subsequent environmental planning instrument is undoubted, see s 74 of the Act. A development application is determined on the law as it stands at the time of the determination, including when it is determined on appeal to the Court: Sofi v Wollondilly Shire Council (1975) 31 LGERA 416; Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630. But for cl 33, the appellant would have been exposed to amendment of SEPP 53 after it had lodged its development application with the Council. It would not have had a right within s 34(4)(b). 21 In Robertson v City of Nunawading (1973) VR 819 an application for sub-division of land was made, the legislation was then changed to give the council power to request the sub-divider to provide security, and it was argued that the sub-divider had acquired a right which could not be impaired by the change in the legislation. It was said at (825) - "The mere locus standi of a member of the community to take advantage of an enactment is not a right within the principle being discussed, for otherwise there could be no effective repeal or amendment of any such enactment: … . There must be a specific right. Resort to the enactment by the making of an application under it which looks to an expectancy of benefit from the application is not itself productive of such a right. The applicant, by reason of the mere launching of the application, acquires no vested right to have the application determined irrespective of the repeal of the enactment. The making of the application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the procedure continued in the face of the repeal of the enactment under which it was instituted." 22 In Ungar v City of Malvern (1979) VR 259 the landowner applied for permission to use his land as a commercial car park, permission was refused, the landowner appealed, and prior to the hearing of the appeal the planning laws were changed so that permission could not be given. It was held that the landowner had not acquired a right to have his appeal decided on the unchanged law. 23 Account must then be taken of cl 33, which had no equivalent in the cases last-mentioned. The respondents accepted that it gave the appellant a right, but submitted that it was no more than a right to have the development application determined according to the law as it stood at the time of the determination. They said that cl 33 did not go beyond this, firstly on the construction of cl 33 and secondly because the exposure to amendment of SEPP 53 included exposure to amendment of cl 33 itself. 24 The construction argument was that cl 33 "focussed" on the determination of the development application, so that no right was acquired until the time of determination and the protection cl 33 gave was only that the development application would be determined on the law as at that time. I do not think the argument has substance. There can not be ignored that cl 33 was directed to a particular class of development applications, those made but not determined before the commencement of the provision in question, and modified the regime for determination of the applications. On the respondents' construction argument, cl 33 would either have no effect at all, being no more than a statement of the Sofi v Wollondilly Shire Council position, or leave open whether the law at the time of the determination allowed for an acquired right. 25 The exposure argument begged the question. Clause 33 was concerned with the effect of new provisions of SEPP 53. New provisions included a provision negating the application of cl 33 to applications for development consent made but not finally determined. If cl 33 conferred a right within s 34(4)(b) of the Act on a person who had made a development application, such a provision which affected the right would be ineffective. Whether cl 33 conferred such a right called for a consideration of the kind described by Hope JA in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 691, a consideration "of the nature of the right which the Act confers, and of the effect of a repeal or amendment of a statute upon such a right". 26 Why was cl 33 included in SEPP 53? It must have been intended to alter the Sofi v Wollondilly Shire Council position; that is, to alleviate the exposure to amendment of SEPP 53. A person who had made a development application was still exposed to other changes in the law, but not to a subsequently commencing provision of SEPP 53. 27 There is a common law presumption in the construction of legislation that the construction should not impair vested rights, not only retroactively but also prospectively: see Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ and the discussion by Lord Rodger of Earlsferry in Wilson v First County Trust Ltd (No 2) (2004) 1 AC 816 at 876-881. Interpretation Acts commonly provide that, subject to a contrary intention, amending legislation will not affect vested rights under the amended legislation. Section 34(4)(b) of the Act goes beyond a presumption of construction and is not subject to a contrary intention. Underlying the common law and statutory presumptions and s 34(4)(b) is perceived unfairness if a person's position is altered by the legislation. Fox J said in J R Exports Pty Ltd v Australian Trade Commission (1986) 71 ALR 717 at 719 - "It is not possible to define an "accrued right", anymore than it is a "right", but the notion which underlies the latter, when dealing with the present type of problem, is that there is something in the nature of a cause of action which has arisen, or is claimed to have arisen, before the repeal or amendment, in circumstances which would render it manifestly unjust for the repealing or amending Act to affect the situation adversely." 28 Unfairness or manifest injustice is not itself the criterion for acquisition of a right. But if it be asked why the exposure to amendment of SEPP 53 was alleviated, the immediate answer is that it would be unfair to an applicant for development consent, who had devoted time and money to making a development application, to have the rules changed. Clause 33 took the applicant for development consent out of the normal situation spoken of in Robertson v City of Nunawading. 29 As has often been recognised (see for example Free Lanka Insurance Co Ltd v Ranasinghe (199964) AC 541 at 552; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act at 696; The Byron Shire Council v Greenfields Mountain Pty Ltd (1999) 105 LGERA 445 at 449), the distinction between what is and is not a right is often a fine one. Clause 33 did more than entitle a member of the community to take advantage of an enactment. It put a person who had made a development application in a special position in the determination of the development application. In my opinion, it can properly be said that such a person acquired a right. 30 The guidance of Esber v The Commonwealth of Australia (1992) 174 CLR 430 supports this conclusion. 31 Esber was injured during Army service. He claimed and was awarded weekly compensation under a 1971 Act. He applied under the 1971 Act to redeem the weekly payments. His application was refused. He applied under the 1971 Act for review of the refusal. Before the review hearing the 1971 Act was repealed and replaced by a 1988 Act. Redemption was not available under the 1988 Act. A transitional provision in the 1988 Act, s 129(2), provided that proceedings relating to any matter arising under the 1971 Act instituted but not completed before the commencement of the 1988 Act could be continued. 32 In a joint judgment Mason CJ and Deane, Toohey and Gaudron JJ first held (at 438) that s 129(2) - " … should be given the effect which its language indicates, there being nothing in the Act standing in the way of that approach. The subsection is concerned with more than procedural matters; it ensures the continuance of the application to the tribunal and the resolution of the entitlement to redeem in accordance with the 1971 Act." 33 Their Honours then said (at 438) that the "alternative ground" in the case had been fully argued and should be dealt with, and that it would be seen that it "lends strong support for the construction of s 129(2) already reached". The ground was that there was a right, within s 8 of the Acts Interpretation Act 1901 (C'th), to have the weekly payments redeemed, or alternatively a right to have a review of the refusal. Section 8 was in materially similar terms to s 34(4) of the Act, but was expressed to be subject to a contrary intention. 34 Their Honours preferred the alternative. They said (at 440-1-) - "If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in New South Wales Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act and Western Lands Act : 'The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.' Once the appellant lodged an application to the tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the tribunal. It was not merely 'a power to take advantage of an enactment'. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent'. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act." (citations omitted) 35 The citation for the phrase "a power to take advantage of an enactment" was Mathieson v Burton (1971) 124 CLR 1 at 23 per Gibbs J, with the additional citation "and see Robertson v City of Nunawading (1973) VR 819". Their Honours considered that s 129(2) took the case out of the situation described in those cases. The cases cited for the right being a substantive right, in the footnote said to be "by way of analogy", were Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 and The Colonial Sugar Refining Co Ltd v Irving (1905) AC 369. In each an entitlement to appeal was held to be a vested right. 36 Esber's right was analogous to an entitlement to appeal. The present case is different. The appellant did not have an entitlement to appeal. But the appellant had acquired an entitlement to have its development application determined according to SEPP 53 as it stood at the time the development application was lodged, contrary to its position if cl 33 had not been in SEPP 53. Clause 33 was in principle equivalent to s 129(2). There was more than "a power to take advantage of an enactment", because advantage had already been taken of SEPP 53 and the entitlement had arisen. 37 The respondents sought to distinguish Esber v The Commonwealth of Australia on the ground that there was no equivalent to cl 44. I do not think that matters. An equivalent to cl 44 would have provided a contrary intention whereby the right upheld by the Court was affected. It would not have altered the decision that Esber had a vested right. 38 In my opinion, the appellant's entitlement was an acquired right within s 34(4)(b) of the Act. The appellant has succeeded in the appeal, and subject to the matter next mentioned the respondents should pay its costs below and on appeal. 39 The Council was a respondent in the proceedings in the Court. The appellant did not join it as a respondent in this appeal. The Council asked that it be joined. The appellant's response was the Council was not a necessary party, but that it would consent to joinder if the Council either entered a submitting appearance and took no active part, agreed with the Minister that not more than one set of costs would be "generated between them and the Council", or undertook to seek no order for costs against the appellant irrespective of the outcome of the appeal. The reply noted that the Council's submissions in the Court had "merely repeated the same position as that expressed by the Minister … ". 40 This was not acceptable to the Council. It filed a notice of motion seeking joinder. It wrote offering that "each party" should pay its own costs of the motion and "the proceedings", it seems meaning the appellant and it and the appeal. There was no response. Written submissions were exchanged, in which the appellant contended that the Council was not a necessary party to the appeal and the Council contended that it was. The appellant's submissions included that it did not object to joinder, but that it objected to paying two sets of costs if unsuccessful in the appeal and that the Council's joinder should be "at its own risk as to costs". 41 On the return of the notice of motion the appellant did not oppose the joinder. The Registrar ordered that the Council be joined. Costs of the motion were reserved for disposal when the appeal was heard. 42 This was a silly contretemps. The Council should have been joined. The appellant's concern over two sets of costs is understandable, but was a matter for the court hearing the appeal. It did not call for joinder on conditions. 43 The Council asked for costs of the notice of motion. The appellant submitted that they should be costs in the appeal, and as a fall-back that the costs of senior counsel should not be allowed. Senior counsel had settled the written submissions and been briefed to appear on the motion, although he did not in fact appear. 44 The notice of motion was a discrete matter, and in my opinion the appellant should pay the Council's costs. It will be a matter for the assessor whether costs for senior counsel are reasonable and if so what costs. 45 I propose the orders - 1. Appeal allowed. 2. Set aside the orders that the applicant's Class 4 application is dismissed and that the applicant pay the respondents' costs. 3. Declare that the provisions of State Environmental Planning Policy No 53 – Metropolitan Residential Development inserted by State Environmental Planning Policy No 53 – Metropolitan Residential Development (Amendment No 10) do not apply to or in respect of the determination of the application for development consent lodged by the applicant on 30 May 2003 for dual occupancy development on land at 385 Bobbin Head Road, North Turramurra. 4. Subject to 5, respondents pay the appellant's costs of the proceedings in the Land and Environment Court and the appeal. 5. Appellant pay the second respondent's costs of the notice of motion filed on 24 September 2004. 6. Respondents to have certificates under the Suitors Fund Act if otherwise qualified. 46 SANTOW JA: I agree with Giles JA. ********* Last Modified: 12/07/2004 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.