Land and Environment Court New South Wales Medium Neutral Citation: Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 6 Hearing dates: 2 and 7 February 2018 Date of orders: 07 February 2018 Decision date: 27 February 2018 Jurisdiction: Class 1 Before: Molesworth AJ Decision: See orders at [59] Catchwords: PROCEDURE – application for expedition ­– deemed refusal – imminent expiry of site compatibility certificate - expedition granted Legislation Cited: Environmental Planning and Assessment Act 1979, ss 79C, 82(1), 97(1) Environmental Planning and Assessment Amendment Act 1997 Environmental Planning and Assessment Regulation 2000, cl 113 Land and Environment Court Act 1979, s 39 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cls 2, 25 Cases Cited: Australian Consulting Architects Pty Ltd v Liverpool City Council [2017] NSWLEC 129 Marshall Rural Pty Ltd v Basscave Pty Ltd [2017] NSWLEC 84 Wren Investments Pty Ltd v Hunter [2011] NSWLEC 122 Category: Procedural and other rulings Parties: Wirrabara Village Pty Limited (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: Mr Peter Tomasetti SC (Applicant) Mr Mark Hanna (Solicitor for the Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/27264 Judgment THE CLASS 1 APPLICATION 1. The Class 1 Application, which is the subject of these proceedings, involves development application 944/2018/JP (the DA) for an integrated development comprising the demolition of existing structures and construction of a seniors living development providing a 72 bed residential aged care facility, 117 self-care dwellings consisting of 80 apartments and 37 independent living units, community facilities, construction of private roads, bulk earthworks and retaining walls (the Proposal) on Lot 1 in Deposited Plan 534265 and Lots 1 and 2 in Deposited Plan 560912, otherwise known as 3-5 Pellitt Lane and 9 Wirrabara Road, Dural (Subject Land). 2. The Class 1 proceedings are brought before the Court pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Class 1 Application was dated and filed with the Court Registry on 25 January 2018. 3. This is a DA in relation to land which has the benefit of a site compatibility certificate (SCC) issued pursuant to cl 25(4)(a) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (NSW) (SEPP (Seniors Housing)). Where a DA is lodged in accordance with this SEPP, cl 50(2A) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) requires the DA to be accompanied by a SCC. The Applicant, via one of its consultants, applied for the SCC on 16 September 2015 and was issued the SCC on 9 June 2016. Pursuant to cl 25(7) of the SEPP (Seniors Housing), the SCC was subject to a requirement. The requirement was: "The location and final number of serviced self-care housing units/dwellings and number of beds in the residential care facility permitted on site shall be determined by Council through the assessment of the development application under section 79C of the Environmental Planning and Assessment Act 1979 (EPA Act)". 1. The DA comes before the Court, pursuant to the Class 1 proceedings, on the basis that a "deemed refusal" has occurred. The DA was lodged with the Respondent Council on 16 November 2017. Pursuant to cl 113(1) of the EPA Regulation, for the purposes of s 82(1) of the EPA Act, a development application is taken to be refused if a consent authority has not determined that application within the deemed refusal period. In the case of an integrated development as defined in s 91 of the EPA Act, which the DA proposes, 60 days is the stated period within which a consent authority is to make its determination. In accordance with cl 107 of the EPA Regulation, neither the day on which the DA was lodged nor the following day are to be taken into consideration in calculating the number of days in any assessment period. Hence, in the case of integrated development, one calculates 62 days from the date of DA to determine the actual date of deemed refusal. The parameters of these deemed refusal provisions are explained in Australian Consulting Architects Pty Ltd v Liverpool City Council, [2017] NSWLEC 129, pars [21] – [24], [27] and [28]. 2. With the DA proposing a development which will cost over $100 million, in relation to which the Applicant has already spent over $1.1 million in preparation for the SCC and DA applications, there is much at stake should the Applicant be denied the opportunity to have the Proposal considered on its merits before, by the effluxion of time, it is shut out by regulatory process. Importantly, proposing a substantial residential facility offering accommodation for, potentially, between two and three hundred aged-care citizens, there is a clearly a significance in the Proposal. This significance is highlighted by virtue of the stated aims of the SEPP (Seniors Housing), specifically that expressed in cl 2(1)(a). 3. Without the SCC the Proposal would be prohibited given the zoning of the Subject Land is RU6 Transition pursuant to The Hills Local Environment Plan 2012. Development for the purpose of seniors housing is prohibited in the RU6 zone. The RU6 zone is a zone that is identified as principally for rural uses. The SEPP (Seniors Housing) provides that, in certain circumstances, development for the purpose of seniors housing may be carried out with consent on land that is not zoned for primarily urban purposes, where that land adjoins land that is zoned primarily for urban purposes. Hence the obtaining of the SCC by the Applicant was critical in order for the DA to be considered. 4. The Applicant submits that the Subject Land adjoins land that is zoned primarily for urban purposes. Presumably that was the view of Deputy Secretary Planning Services when the current SCC was issued to the Applicant on 9 June 2016. The Court has noted that the Respondent Council's submission to the Department of Planning and Environment dated 30 October 2017, being a letter opposing the issue of a new or renewed SCC (exhibited to the affidavit of Mr Steven Wyn Griffiths dated 29 January 2018), states that the Subject Land is "not within, nor does it adjoin land zoned primarily for urban purposes and therefore, the SEPP does not apply to the site". That difference of opinion is not for the Court, on this application for expedition, to resolve now, rather it will be a matter for determination at the final hearing. 5. The critical reason that the Applicant seeks an expedition order is the relatively imminent expiry of the current SCC, being 9 June 2018. If the SCC expires, without a new or renewed SCC, the Proposal would be prohibited. As the Court in a Class 1 Application "stands in the shoes" of the Council and must determine the application de novo, it will be deprived of the jurisdiction to determine the application on its merits should the SCC expire before the Court delivers its judgment. In the context of the more than $1.2 million spent on obtaining the SCC and lodging the DA, it is not surprising that the Applicant feels compelled to seek expedition. NOTICE OF MOTION SEEKING EXPEDITION 1. By Notice of Motion dated 29 January 2018 the Applicant seeks orders that (1) the proceedings be expedited and (2) such further orders as the Court see fit. The Motion is opposed by the Respondent Council. 2. The Motion was supported by two affidavits of Mr Steven Wyn Griffiths, the solicitor on the record for the Applicant, which were respectively sworn on 29 January 2018 and 1 February 2018. In those affidavits Mr Griffiths provided an overview of the background to the DA, the timeline that had been followed to date, in particular the situation with respect to the current SCC and the efforts to seek a new or renewed SCC. Materially, exhibited to the second affidavit was a seven page timeline from the issue of the SCC on 9 June 2016 to the lodging of the DA on 16 November 2017 in which the detail of the effort made and actions taken by the Applicant in utilising the time available to assemble the necessary material to support the DA. Also exhibited to that affidavit was a letter dated 14 January 2017 from Claron Consulting Pty Ltd in which the "Project Consulting Team" was described comprising no fewer than nineteen areas of professional expertise retained to provide expert analysis and reports. 3. No evidence by way of affidavit was placed before the Court by the Respondent Council, however the Court did admit into evidence an email dated 6 February 2018 from Mr Robert Buckham, who is described in that email as the Respondent Council's Development Assessment Coordinator. In that email Mr Buckham set out the anticipated timeline required by the Council to assess the DA. This email was initially objected to by Mr Tomasetti, Senior Counsel for the Applicant, however that objection was withdrawn once the utility of the email was understood. Relevantly, Mr Buckham indicated that, based on other assessments of projects of a smaller scale, Council would need between 6 and 18 months to assess and determine the Applicant's DA. This time estimate should be considered in the context of Applicant's SCC due to expire in four months, on 9 June 2018. RELEVANT STATUTORY PROVISIONS 1. For this judgment, it is necessary to concisely set out the relevant parts of the statutory framework regarding: (a) the path to appealing a deemed refusal of development consent; and (b) the process involved in obtaining an SCC pursuant to the SEPP (Seniors Housing), which in the circumstances of this case is a very material context. 2. With respect to the process for appealing to the Court, s 97(1) of the EPA Act materially provides as follows: 97 Appeal by applicant – development applications (1) 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 6 months after: (a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or (b) the date on which that application is taken to have been determined under section 82 (1). 1. Section 97(1)(b) is applicable to the circumstances in this case given the Respondent Council failed to reach a determination on the DA. 2. In the circumstances of a deemed refusal, ss 82(1)-(5) of the EPA Act sets out the provisions to be considered. 82 Circumstances in which consent taken to have been refused (1) 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 section 97, taken to have determined the application by refusing consent on the date on which the period expires. (2) Nothing in subsection (1) prevents a consent authority from determining a development application after the expiration of the relevant period referred to in that subsection, whether on a review under section 82A or otherwise. (3) A determination pursuant to subsection (2) does not, subject to subsection (4), prejudice or affect the continuance or determination of an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made. (4) If a determination pursuant to subsection (2) is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made) withdrawn at any time prior to the determination of that appeal. (5) This section does not apply in respect of a development application if section 97 does not apply to the application. (emphasis added) 1. It is necessary to determine the relevant deemed refusal period, which is provided for by cl 113(1) (a)-(b) of the EPA Regulation: 113 Applications taken to be refused (cf clause 70B of EP&A Regulation 1994) (1) For the purposes 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 the deemed refusal period, being: (a) 40 days, except in the case of development referred to in paragraph (b) or (c), or (b) 60 days, in the case of: (i) designated development, or (ii) integrated development (other than integrated development that, pursuant to State Environmental Planning Policy No 62—Sustainable Aquaculture, is Class 1 aquaculture development), or (iii) development for which the concurrence of a concurrence authority is required, or (iv) a development application that is accompanied by a biodiversity development assessment report and that proposes a discount in the biodiversity credits required under the report to be retired, or (c) ……… 1. As noted earlier, the Proposal in the DA is an instance of an integrated development as defined in s 91 of the EPA Act. 2. Further, cl 113(2) of the EPA Regulation provides as follows: (2) The deemed refusal period is measured from: (a) the date the development application is lodged with the consent authority, or (b) the date the Commission complies with clause 268V (3), if a review (with or without a public hearing) has been conducted by the Planning Assessment Commission into development other than development the subject of a development application to which section 97 of the Act does not apply, or part of any such development. 1. As said earlier in paragraph 3, the SEPP (Seniors Housing) is critically important in this case. Understanding the aims of that SEPP is relevant context for the consideration of the issues in this case. Those aims are articulated in cl 2: 2 Aims of Policy (1) This Policy aims to encourage the provision of housing (including residential care facilities) that will: (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and (b) make efficient use of existing infrastructure and services, and (c) be of good design. (2) These aims will be achieved by: (a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and (b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and (c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes. 1. With the aims of the SEPP (Seniors Housing) setting the context, understanding the intent of the "flexibility" provided by the SEPP to allow seniors housing on land that would not be otherwise be available is important. Clause 24 sets out the material provisions. 24 Site compatibility certificates required for certain development applications (1) This clause applies to a development application made pursuant to this Chapter in respect of development for the purposes of seniors housing (other than dual occupancy) if: (a) the development is proposed to be carried out on any of the following land to which this Policy applies: (i) land that adjoins land zoned primarily for urban purposes. (ii) …….. (iii) …….. (1A) Despite subclause (1), this clause does not apply to a development application made pursuant to this Chapter in respect of development for the purposes of seniors housing if the proposed development is permissible with consent on the land concerned under the zoning of another environmental planning instrument. (2) A consent authority must not consent to a development application to which this clause applies unless the consent authority is satisfied that the Director-General has certified in a current site compatibility certificate that, in the Director-General's opinion: (a) the site of the proposed development is suitable for more intensive development, and (b) development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment having regard to (at least) the criteria specified in clause 25 (5) (b). (emphasis added) (3) Nothing in this clause: (a) prevents a consent authority from: (i) granting consent to a development application to which this clause applies to carry out development that is on a smaller (but not larger) scale than the kind of development in respect of which a site compatibility certificate was issued, or (ii) refusing to grant consent to a development application to which this clause applies by reference to the consent authority's own assessment of the compatibility of the proposed development with the surrounding environment, or (b) otherwise limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies. 1. Material to the Court's consideration of the expedition application – in particular the Respondent Council's assertions that it will be prejudiced by being denied a proper opportunity to fully consider the DA should expedition be granted – is the process involved in obtaining a SCC under the SEPP. 25 Application for site compatibility certificate (1) An application for a site compatibility certificate for the purposes of clause 24 may be made to the Director-General: (a) by the owner of the land on which the development is proposed to be carried out, or (b) by any other person, with the consent of the owner of that land. (2) An application must be: (a) in writing, and (b) in the form (if any) approved by the Director-General from time to time, and (c) accompanied by such documents and information as the Director-General may require. (3) Subject to subclause (4) (b), the Director-General must provide a copy of the application to the General Manager of the council for the area in which the development concerned is proposed to be carried out (the relevant General Manager) within the period of 7 days after the application is made. (4) Subject to subclause (5), the Director-General: (a) may determine the application by issuing a certificate or refusing to do so, and (b) if the Director-General refuses to issue a certificate at any time within the period of 7 days after the application is made—is not required to comply with subclause (3). (5) The Director-General must not issue a site compatibility certificate unless the Director-General: (a) has taken into account the written comments (if any) concerning the consistency of the proposed development with the criteria referred to in paragraph (b) that are received from the relevant General Manager within 21 days after the application for the certificate was made, and (b) is of the opinion that the proposed development is compatible with the surrounding land uses having regard to (at least) the following criteria: (i) the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development, (ii) the impact that the proposed development is likely to have on the uses that, in the opinion of the Director-General, are likely to be the future uses of that land, (iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision, (iv) in the case of applications in relation to land that is zoned open space or special uses—the impact that the proposed development is likely to have on the provision of land for open space and special uses in the vicinity of the development, (v) without limiting any other criteria, the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development, (vi) if the development may involve the clearing of native vegetation that is subject to the requirements of section 12 of the Native Vegetation Act 2003—the impact that the proposed development is likely to have on the conservation and management of native vegetation. (6) Without limiting subclause (4) (a), the Director-General may refuse to issue a certificate if the Director-General considers that the development is likely to have an adverse effect on the environment. (7) A certificate may certify that the development to which it relates is compatible with the surrounding land uses only if it satisfies certain requirements specified in the certificate. (8) The Director-General must, if it is reasonably practicable to do so, determine an application within 35 days after it is lodged. (9) A certificate remains current for a period of 24 months after the date on which it is issued by the Director-General. 1. The Court emphasises three aspects of the requirements set out in cl 25 above, aspects which it considers highly relevant to the exercise of its discretion in response to the expedition application. First, a SCC cannot be issued unless the Director-General is of the opinion that the proposal is compatible with the criteria in cl 25(5)(b). Secondly, the local Council is a mandatory participant in the SCC process in that, pursuant to cl 25(3) it must be provided with the SCC application and the Director-General must not issue the SCC unless the written comments of the Council are taken into account. Finally, by cl 25(8), if reasonably practical to do so, determine an application for the SCC within 35 days after it is lodged. In the instance of the Applicant's SCC application, the Director-General did not meet the 35 day regulatory deadline, rather the SCC issued just one week short of nine months after the application was lodged. Although this extended consideration period may be an instance of the malaise characteristic of prolonged planning decision-making in NSW, to which the Planning Minister referred in his Second Reading Speech in 1997 when the deemed refusal provisions were inserted in to the EPA Act (see paragraph 25 below), the Court must presume that the extended period was necessary for intensive and time-consuming consideration and that adherence to the preferred regulatory timeframe was not reasonably practical. The context of the deemed refusal provisions – a relevant consideration 1. Part of the statutory context within which this application is to be considered is the fact that the Class 1 application has been lodged on the basis that there is a deemed refusal. The deemed refusal pathway is available to an applicant to come to the Court rather than wait for the Council to complete its deliberations. As already set out above, s 82(1) of the EPA Act provides: "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". 2. The rationale for the Legislature creating the deemed refusal pathway is clear. Undue delay, perhaps caused by prevarication on the part of a consent authority or possibly caused by a shortage of resources to allocate planning staff to the task of review, is unacceptable to the community at large. It has sometimes been apparent that prevarication would be better described as stonewalling by a consent authority. In this case the Applicant sought to impugn the Respondent Council by referring to the Council's evident opposition to the Proposal during the course of the SCC application process – both for the 2016 issued SCC and the 2017 new SCC application. Further, the Applicant annexed to Mr Griffiths' second affidavit copies of newspaper articles indicating, if they are to be believed, entrenched opposition from the Council. For the purposes of this expedition application, it is unnecessary for the Court to have regard to this newspaper material as the veracity of such material must often be questioned, however the Council's own email from Mr Buckham dated 6 February 2018 was sufficient to convey to the Court the likely intended assessment timeline, prolonged by any measure, that the Council considered necessary. Is such an estimated and preferred timetable by the Respondent Council acceptable? Is it acceptable when it would most certainly result in the current SCC expiring months before the Council completes its assessment, 14 months before the Council's more pessimistic estimate, thereby rendering nugatory the Applicant's efforts since 18 September 2015 and potentially resulting in $1.1 million expenditure to date being wasted. 3. It was the Environmental Planning and Assessment Amendment Act 1997 that incorporated the deemed refusal provisions into the EPA Act so as to provide at least one means of tackling delays in planning decision-making. Although the purpose of s 82(1) is clear from a plain reading, the Minister's Second Reading Speech of 15 October 1997 provides an understanding of the context which confirms the obvious intent of the provision (and other reforms in the 1997 Amendment Act with an underlying intent to achieve the same objectives). The Environmental Planning and Assessment Amendment Bill represents the most fundamental change to the laws associated with land-use planning and assessment in New South Wales since the introduction of the Environmental Planning and Assessment Act in 1979. … Everyone agrees that, as a whole, the current system for assessing new developments has lots of problems. … The most often stated problems with the system are that it is over-regulated; it is full of duplication; separate approval processes sometimes conflict with one another; there is a lack of certainty; there is a lack of transparency; no-one is accountable; there is little co-ordination; the process and scale of assessment is often out of proportion to the environmental impact; and it all takes too long. (emphasis added) … Processing times for building applications and development applications are equally problematic. Despite the legislation mandating a 40-day assessment period, work done by the New South Wales Department of Local Government clearly demonstrates that the overwhelming majority of local government authorities fail to meet the time frame. In fact, these days compliance with the 40-day period has almost become the exception rather than the rule. In the most recent analysis 60 per cent of councils in the greater metropolitan region took more than 40 days to process building applications, 50 per cent took more than 60 days to process building applications. Based on industry and Department of Local Government analysis this trend is on the increase. … Similar criticisms can be levelled at State Government agencies involved in land-use management and development assessment. … The solution contained in the bill focus on reducing necessary delays and duplication, simplifying the assessment process as much as possible and achieving consistency and certainty across multiple environmental approvals. (NSW Legislative Assembly Hansard, 15 October 1997) RELEVANT TIMELINE 1. It is helpful to understand the timeline in this matter. The most relevant dates are as follows. 16 September 2015 Applicant applies for SCC 8 March 2016 Council objection letter to Department of Planning and Environment opposing the issue of a SCC 9 June 2016 Determination to issue SCC 22 September 2017 Applicant's consultant seeks second (or renewed) SCC. (incorporating submission letter dated 10 July 2017) 30 October 2017 Council objection letter to Department opposing issue of a second SCC 16 November 2017 DA lodged with Council 17 January 2018 Expiry of 60 + 2 days from DA – deemed refusal 25 January 2018 Class 1 Application filed with Court 29 January 2018 Notice of Motion filed seeking expedition 9 June 2018 SCC expires, rendering Proposal prohibited THE PARTIES' SUBMISSIONS 1. The Respondent Council submitted that it would suffer prejudice if an Order for expedition was made. It submitted that "… a complete and thorough assessment will be much more difficult to achieve in an abbreviated form in the way proposed by the Applicant" in an expedited hearing. In response to the Applicant's submissions regarding the loss of resources expended on the DA should expedition not be granted, the Respondent Council submitted that "the cost and the possible financial loss which the Applicant may suffer does not mean that there is anything distinctive or unusual about these proceedings that warrants an order for expedition. Such loss is an inherent risk of making a development application…". 2. The Applicant submitted that the Respondent Council has had the opportunity to consider the development application. It simply has failed to resource the assessment adequately. The Council is a statutory corporation performing a fundamental public service. It is not a private person or litigant. It is vested with public duties that it must perform timeously, or else other statutory procedures apply. The legislation allows a fixed time for Council to assess and the JR Planning Panel to determine the application. The Applicant said it had paid $130,000 for the development application to be assessed in accordance with the statutory scheme and so the Council should have done so. 3. The Applicant further submitted that the statutory scheme has determined how long a development application should take to process. The public are entitled to rely upon the performance of the scheme by public authorities. To shrug off loss due to delay in the process should not be sanctioned by the Court as part of the process. The Council has had the opportunity to properly consider the development application. The statutory time for the assessment of the application has passed. A deemed refusal does not equate to the Council having not had the benefit of a time for a thorough assessment. It simply means that the Council has not resourced the assessment adequately and the time for its assessment before which the application is deemed refused has passed. 4. The Applicant said the failure of the Council to assess the DA reflects the present rate of resourcing, meaning the assessment will not be completed for some time. The Class 1 Application relates to a large development, that is why it attracted a large fee on filing, so the Applicant submitted that the nature of the proposal and the issues arising can and should be assessed presumably using the funds paid on the filing of the application. Reflecting on the evidence of Mr Buckham, Council's Development Assessment Co-coordinator, the Applicant said his email has provided no explanation for the delay in the process other than that the development is a large one. His admission that these applications take up to 23 months to determine is astonishing given that the applicant loses it right to appeal after 6 months and 62 days of filing the application with Council. With respect to delays related to "Internal referrals", the Applicant stated is a euphemism that simply means that some staff (apparently engineering, traffic and ecology) within the Council have not yet responded. Further, comments on Mr Buckham's advice that initial planning comments on the issues that arise are expected within the next 14 days, the Applicant said: "it is simply not good public service performance in the light of the statutory background. The development application is to be determined in 62 days. After nearly 3 months of assessment and after payment of $130,000 in application fees all Mr Buckham can say is that he has "… identified a number of issues in his assessment" ". 5. With respect to the position of other authorities, given that the DA is an instance of an integrated development, the Applicant submitted that the Court has power pursuant to ss 38 and 39 of the EPA Act to deal with the DA irrespective of the role of external authorities, saying that when matters become urgent they are addressed more quickly. The Applicant said these provisions indicate a legislative intent not to allow the slow wheels of government to preclude the efficient dispatch of the Court's business: see s 39 of the Land and Environment Court Act 1979 (NSW) which relevantly provides (emphasis added): 39 Powers of Court on appeals … (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body: (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (6A) Notwithstanding any other provision of this section, if an appeal relates to an application made to a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and the application relates to integrated development within the meaning of section 91 of that Act: (a) the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body within the meaning of section 90A of that Act, and (b) the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to inform the consent authority whether or not it will grant its approval, and (c) the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body. … 1. With respect to the suggestion by Mr Hanna that the DA Proposal may be larger than that envisaged by the issued SCC, the Applicant correctly responded that "If the Class 1 Application and the development application reveals that the proposed development is on a larger scale than the kind of development in respect of which the current site compatibility certificate was issued, that will be matter for determination by the Court in the (final) hearing. The Court is not now involved in this issue or any preliminary point". Although it was pointed out that the SCC envisages that dwelling and bed numbers may change in the development application in any event, the Applicant assured the Court that it is not considering any amendment to the proposal which has not been disclosed to date. 2. With respect to the second application for a SCC to the Department of Planning and Environment that is currently under review by the Director-General, the Applicant submitted that it is irrelevant (to the present proceedings), although it was noted that the Council opposes the Department favourably determining that SCC. There is no guarantee of how the second application for a SCC will be determined. If the SCC lodged on 22 September 2017 is not approved, the development application cannot be approved (hence a determination whilst the current SCC remains extant is critical). In response to this submission, the Court is of the opinion that the application for a new or renewed SCC is not actually irrelevant, to the extent that the effort to apply for a new SCC demonstrates that the Applicant has taken all measures available to it to ensure it is not beaten by the effluxion of the time. In circumstances of an application for expedition, it should be demonstrated to the Court that every effort has been taken by the Applicant to ensure that its DA can be considered on its merits in a timely fashion. The fact that more than four months have already passed since the second SCC application was lodged, reinforces the urgency of its expedition application. 3. Finally, recapping its case, the Applicant submitted that the Respondent Council has had the statutory time to assess the application (and it has failed) whereas the Applicant has complied with the legislative scheme. It submitted that unless the matter is expedited now it will inevitably lose the benefit of the SCC which will mean the Court has no jurisdiction to determine the application. It observed that this is a classical ground for expedition in a specialist planning court. The consent authority must deal with the proposed development in a fashion that is consistent with the provisions of Clause 24 of SEPP (Seniors Housing) and in the time allowed by the legislation. Concluding, the Applicant stated the Council has had the statutory time to assess the application and the Applicant has complied with the legislative scheme. Unless the matter is expedited now it will inevitably lose the benefit of the SCC which will mean the Court has no jurisdiction to determine the application. The consent authority should have dealt with the proposed development in a fashion that is consistent with the provisions of cl 24 of SEPP (Seniors Housing) and in the time allowed by the legislation. Finally, the Applicant is ready for this matter to proceed to hearing. CONSIDERATION The relevant principles to consider for expedition 1. In determining whether expedition should be granted, I am assisted by the many decisions of this Court which have repeated longstanding relevant principles. In my own decision of Marshall Rural Pty Ltd v Basscave Pty Ltd [2017] NSWLEC 84 at [19] and [20], I cited some of those authorities which I now follow: 19. With respect to identifying the power of this Court to order the expedition of proceedings, I adopt the analysis of Pepper J in Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116 at [10], which was cited with approval by Pain J in Marshall Rural Pty Ltd v Basscave Ltd [2015] NSWLEC 86 at [12]: There is no specific power dealing with expedition in either the Civil Procedure Act 2005 ("CPA"), the Uniform Civil Procedure Rules 2005 ("UCPR") (other than in the Court of Appeal: see r 51.60 of the UCPR), the Land and Environment Court Act 1979 or the Land and Environment Court Rules 2007. It therefore appears that the power of this Court to grant expedition is found in s 61 of the CPA and r 2.1 of the UCPR. The former provision enables the Court to give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings, and the latter rule enables the Court, at any time, to give such directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings. Both compliment the provisions contained in ss 56 to 58 and ss 61 to 63 of the CPA. 20. As was observed by Pain J in Marshall Rural Pty Ltd v Basscave Ltd at [12] (again quoting Pepper J in Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council), the applicable principles in determining whether or not to exercise the Court's discretion to grant expedition were set out by Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42- 43. The principles stated by Young J (insofar as they are relevant to this case) are: (2) Is there a special factor involved which warrants expedition. Usually these factors will be: (a) the loss of witnesses if the case is not fixed at an early date; (b) matters of public importance; (c) that the subject matter of the litigation will be lost if it is not heard quickly; (d) that the litigation to date has been delayed through no fault of the applicant; (e) that the applicant is suffering hardship not caused through his own fault; (f) that there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date); (g) the nature of the case (for example, ejectment, child custody); and (h) that there are large sums of money involved. There may, of course, be other matters which can count as special factors, but the list that I have given is what occurs in the usual case. The health or age of parties or witnesses may, of course, come under (a), (c) or (e) or all of those headings. (3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed? (4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time including joining in an agreed bundle of documents, preparing statements of witnesses, filing lists of objections to affidavits, making admissions of matters not really in dispute and restraining wide-ranging cross-examination. Of course there will always be cases where one party's interests are to delay resolution of the dispute as much as possible. Such cases can usually be recognised and special procedures adopted … 1. I have concluded, by reference to the authorities on expedition cited, that there are a number of "special factors" which warrant expedition. In summary: first, I am satisfied that the subject of the proceedings, namely the DA supported by a current SCC, "will be lost" by virtue of the relatively imminent expiry of the current SCC on 9 June 2018. Without expedition being granted, four months is inadequate time for the Class 1 Application to be heard and judgment delivered by the Court. Given that the first SCC was obtained after a 9 month processing period had passed, the fact that a new SCC was sought over four months ago gives no comfort that, without expedition, a current SCC will be extant at the time of the hearing. In short, without expedition, it will be highly likely that the Proposal the subject of the DA will be prohibited development due to the expiry of the current SCC and the non-issue of a new SCC. 2. Secondly, I am satisfied that the "subject matter of the litigation", being the DA supported by a current SCC has reached the Court as expeditiously as possible, with any "delays", as asserted by the Respondent Council, between the issue of the extant SCC and the lodging of the DA not being material to this consideration. I am satisfied by the evidence of Mr Griffiths' affidavit and the timeline annexed thereto that the time between the issue of the SCC and the lodging of the DA was well utilised. By any measure the Proposal is a large development requiring much preparatory work. The evidence is that nineteen areas of professional expertise have been assembled as part of the project development team. 3. Thirdly, in the context of the SEPP (Seniors Housing), in particular the evident intent on the part of Legislature to encourage the provision of housing of the kind envisaged by the SEPP – as best expressed in cl 2(1)(a) to "increase the supply and diversity of residences that meet the needs of seniors or people with a disability" and given that the subject Proposal is for a development likely to cost in excess of $100 million, the Court considers the subject of the proceedings is a "matter of public importance", which ought not be frustrated simply by the effluxion of time allowing the required SCC to expire, thereby rendering the Proposal prohibited. This project cost is also a relevant consideration under the expedition principle which focuses on the question whether "there are large sums of money involved". 4. Fourthly, the Court is satisfied that the Applicant would "suffer hardship" should expedition not be granted by reason of it having expended in excess of $1.1 million on application costs to date associated with the SCC application and DA. If through no fault of its own, as the Court judges it, the Proposal becomes prohibited by reason of the expiry of the current SCC, the time and effort since the lodging of the SCC application on 16 September 2015, which would obviously have been preceded by extensive preparation, together with the wasted monetary expenditure would, by any measure, constitute hardship. 5. Finally, and critically, building on the four conclusions explained above, the interface between the deemed refusal provisions under the EPA Act and the inherent purpose of the SEPP (Seniors Housing) revealed by the aims of that SEPP, creates a relevant "special factor", which justifies the making an order for expedition in this case. What is a reasonable timeline for Council consideration of the DA? 1. It was in the face of the well-understood statutory context of the deemed refusal provisions in the EPA Act that the Respondent Council's submissions were somewhat concerning. Commencing with the uncontroversial proposition that "the Council ought to have the opportunity to properly consider the development application", it was then, impliedly, submitted that the statutory period contemplated by the current regulatory regime was insufficient to provide the required opportunity due to the size of the proposed development. It is well to remember in the context of the DA falling within the category of an integrated development, 62 days is the regulatory period allowed before the deemed refusal pathway is triggered. It was said by Mr Hanna for the Council that "[t]he Class 1 Appeal relates to a large development and the nature of the proposal has potential for extensive issues, preliminary legal questions etc and appropriate time for the Council to prepare is not onerous (for) any party in these circumstances". In other words, it should be acceptable for all concerned that whatever time is required to provide Council with the assessment opportunity, then it should be acceptable. 2. Reference was made to the email dated 6 February 2018 from Mr Robert Buckham, the Respondent Council's Development Assessment Coordinator, to Mr Hanna, Solicitor for the Respondent Council. This email was admitted into evidence as Exhibit B. With the covering explanatory note stating: "Please find attached my anticipated timeline for the DA attached. I've provided examples of other assessments (most of which I have been involved with) and even though they are of smaller scale, none have been less than 12 months, noting our workload like most council's (sic) has really increased in the last 3 years" (emphasis added). 3. Mr Buckham stated in his email that "Given the experience with other similar applications, it would be expected that an application of this scale in this locality could take between 6 months and 18 months [for the Council to assess]" (emphasis added). Examples of four previous "seniors living" applications were then provided by Mr Buckham which demonstrated that the assessment period leading to approval ranged between 12 months and 23 months. Although Mr Hanna said that the Court should interpret Mr Buckham's information as covering a combination of Council and Court consideration of these applications, the Court believes this was erroneous as a careful reading of Mr Buckham's information reveals that Mr Buckham was in fact only providing an overview of Council and/or Council and Panel assessment times. 4. The underlying proposition being put by the Respondent Council was that it should be acceptable that a period of up to 18 months be accepted for the Council to assess the DA and so as that should be considered acceptable then a grant of expedition to the Applicant would inconvenience and prejudice the Council in performing its statutory functions. Stating the obvious, there is a stark contrast between an 18 month timeline sought by the Respondent Council compared to the 62 day timeline provided by the EPA Act before a deemed refusal pathway may be commenced. As the Minister's speech confirms when the deemed refusal provisions were inserted into the EPA Act back in 1997, there was a real concern with the length of time taken by councils in processing applications, so much so that the Legislature felt compelled to provide an avenue whereby dilatory conduct on the part of consent authorities could be bypassed. 5. Consent authorities may find regulatory timeframes to be onerous and a degree of complacency in accepting such delays in the State's planning processes may be common, but this Court must be cognizant of a statutory regime that still prevails. The Applicant is entitled to avail itself of statutory provisions allowing a deemed refusal pathway to this Court. It is not for this Court to then accept Local Government's complacency with respect to timelines and then allow a commensurate extended timeline for its own Court hearings to mirror delays at other levels of the State's planning regime. Once proceedings of the kind now before this Court have been commenced, including those commenced by reason of a deemed refusal, the Court must act within its statutory framework. In such circumstances, it is not unreasonable to expect adherence to time frames by consent authorities such as Councils. It is in this context that the Applicant's expedition application must be considered. With the impending expiry of the SCC, which would deprive the Applicant the chance to have its DA considered on its merits, the Court considers the Applicant's resort to the deemed refusal provisions provided by the EPA Act was reasonable. 6. The reasonableness of the Applicant's actions must be considered in the context of the twenty-six months of processing and consideration of the Proposal, albeit via the SCC pathway, which preceded the DA. The Council, during the hearing, indicated that with the Applicant having retained many consultants as part of its project development team, covering nineteen disciplines, it would be necessary for the Council to prepare its response with many professional assessments, implying a matching of like with like to cover the issues arising from the DA. The Court responded during the hearing (Transcript, pp 4-5) that the starting point ought not be an assumption that, in an adversarial manner, the Council ought to necessarily adopt an opposing stance. Rather, the preferred stance should be to see an applicant, who has embarked upon an exercise of retaining multiple experts to address a multiplicity of issues, as endeavouring to 'tick all the boxes'. With an extensive effort to address all the issues, it should be within contemplation that the identification of appropriate design responses might be so comprehensive that the Respondent Council can be satisfied. It was in this context, that the Court considered the Respondent Council's estimate of between six and eighteen months to review the DA, to not only be unduly pessimistic, but entirely unreasonable. Site Compatibility Certificate 1. On 9 June 2016 the Applicant received an SCC pursuant to cl 25(4)(a) of the SEPP (Seniors Housing). The SCC was in the following terms: I, the Deputy Secretary, Planning Services as a delegate of the Secretary, of the Department of Planning and Environment determine the application made by Claron Consulting Pty Ltd on 16 September 2015 by issuing this certificate under clause 25(4)(a) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. I certify that in my opinion: - the site described in Schedule 1 is suitable for more intensive development; and - the development described in Schedule 1 is compatible with the surrounding environment having had regard to the criteria specified in clause 25(5)(b); and - that development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding land uses only if it satisfies certain requirements specified in Schedule 2 of this certificate. 1. Although I have explained my primary reasons for concluding that expedition is warranted in the particular circumstances of this case, the Court concludes that there would be a further basis for concluding that the Respondent Council's claim to being potentially disadvantaged by the making of an order for expedition is unsound. The statutory procedure in relation to the consideration and issue of a SCC includes cl 25(8) of the SEPP (Seniors Housing) which states that: "The Director-General must, if it is reasonably practical to do so, determine an application within 35 days after it is lodged". The Court noted that rather than meeting the 35 day timeframe, the SCC was issued seven days short of nine months after the application was lodged. With the Court having not received submissions addressing the reasons for the delay in the issue of the SCC, the Court can only presume that the Director-General found that it was not "reasonably practical" to deliberate on the application and issue the SCC in a shorter timeframe. 2. Of considerable significance, in the context of the Respondent Council's resistance to the Applicant's Motion seeking expedition, is the requirement in cl 25(3) of the SEPP (Seniors Housing) that the "Director-General must provide a copy of the application to the General Manager of the council for the area in which the development concerned is proposed to be carried out .. within the period of 7 days after the application is made". 3. In short, assuming this SEPP requirement was met, the Respondent Council would have received a copy of the Applicant's SCC application on 23 September 2015. Pursuant to cl 25(5), the Director-General must not issue a site compatibility certificate unless the Director-General "(a) has taken into account the written comments (if any) concerning the consistency of the proposed development with the criteria referred to in paragraph (b) that are received from the relevant General Manager within 21 days after the application for the certificate was made". Given that the SCC was eventually issued and that it would have been contrary to law for that SCC to issue without due compliance with cl 25(3) and cl 25(5)(a), the Court must presume that the Respondent Council did in fact provide written comments on the Applicant's proposal and that those comments addressed the criteria set out in cl 25(5)(b), which are set out above in paragraph 21. 4. Given the rather expansive range of matters contained within the SCC consideration criteria, the Court can only conclude that the Respondent Council was well informed of the Applicant's proposal for all of twenty six months before the DA was lodged with the Respondent Council for formal consideration. When the DA was received by the Respondent Council, it would be impossible to describe the situation as being one of a clean slate, rather it is highly likely that the Council had been well appraised of many, arguably all, of the elements of the Proposal, most probably much of the detail, so much so because it had already been a formal participant in a regulatory process triggered by the SCC application. It would be reasonable to surmise that the near nine months taken to consider the SCC application by the Director-General might have involved the consideration of more than just one communication from the Respondent Council. Further, with reference to the Respondent Council's letter of 30 October 2017 annexed to Mr Griffiths' first affidavit, it is clear the Council was again engaged in commenting on and opposing the issue of a new or renewed SCC. For the purposes of this second SCC application, the Council would have received the application and accompanying documentation as required by cl 25(3) of the SEPP (Seniors Housing). 5. It is clear from the legislative and policy regime established with respect to the SEPP (Seniors Housing) that the application process involving a related SCC and DA is to interlock. On the one hand there is a SEPP which gives policy priority to housing for seniors or people with a disability and so, as such, requires consideration by the Department of Planning and Environment; and on the other hand there are "interface" provisions to involve the Respondent Council. First, the mandatory involvement of the Council (cl 25(3)), then consideration of Council comments (cl 25(5)(a)), then the actual SCC itself, by setting out a requirement that "the location and final number of serviced self-care housing units/dwellings and number of beds in the residential care facility permitted on site" be determined by Council following a normal s 79C EPA Act pathway. In these circumstances, the Court considers it highly material that there is a clear overlap of processes, an interface that is intended to interlock. 6. On the basis of this analysis, when it comes to considering how much time the Respondent Council has had to consider the DA, whether it might be prejudiced by the grant of expedition, is it not relevant to consider that the Respondent Council has been involved in the consideration of the Proposal from the 23 September 2015, being seven days after the lodging of the SCC application (see cl 25(3) of the SEPP (Seniors Housing)) rather than from the date the DA was lodged on 16 November 2017? Certainly, there would be no basis for the Respondent Council to argue that when the DA was lodged there was a blank sheet. Twenty-six months would have passed. Strictly, an application for a SCC starts from a different legislative "starting block" than that from which the DA commences, but surely the intent of the Legislature is that the processes dovetail, or interlock. It would be abhorrent to the scheme established for the SEPP (Seniors Housing) for the Respondent Council to assert that all concerned must return to the "starting blocks" and commence an entire review or assessment afresh. If the Council was correct, what would be purpose of the SEPP, save that flexibility as to a site outside the usual zone, would be provided? Why would any applicant suffer twenty-six months of application work prior to the lodging of the DA and expend huge sums, such as the $1.1 million in this instance, if they had to entirely start again when the DA is lodged. 7. It was in this context that this expedition application needed to be considered. In the context of evident endeavours by the Legislature over many years to provide for a fair and orderly planning system capable of achieving expeditious decision-making (such as by the provision of deemed refusal provisions), it was groundless for the Respondent Council to assert that it required up to another eighteen months to consider the DA, passing the expiry date of the SCC, thereby negating all previous work done and rendering the expenditure to date nugatory, when it had previously had twenty-six months of involvement in the Proposal, albeit with respect to the SCC application, before the DA application. In addition to its earlier stated reasons, the Court considers this sorry state-of-play a "special factor" justifying the grant of expedition. COSTS 1. Towards the conclusion of the hearing, Mr Hanna for the Respondent Council sought its costs on the motion. Relying on the judgment of Pepper J in Wren Investments Pty Ltd v Hunter [2011] NSWLEC 122, it was said that the orders in favour of the Applicant were determined on "a fine balance" and therefore, as a consequence, the Council ought be awarded its costs in responding to the Applicant's Motion. 2. The Court responded to this application for costs by first reminding the parties that the proceedings were Class 1 in which the normal presumption is that each party will pay its own costs. There are grounds set out in the Court's Practice Note Class 1 Development Appeals at [103] and [104], which confirm that the circumstances in which a cost order might be made should be treated more as an exception rather than the rule. Hence the language of [103] stresses that costs will flow after wrongdoing: "If a breach of the Court's directions or of this practice note causes costs to be thrown away, a party or legal practitioner responsible for the breach may be ordered to pay those costs". A similar tenor is apparent in [104], which addresses costs when there has been unnecessary photocopying which is considered unacceptable by the Court. 3. Reviewing the basis by which the respondent council in Wren Investments was awarded its costs, despite the applicant therein being successful and obtaining an order for expedition, I do not consider the basis for awarding costs in that case are apposite to the circumstances before me. First, contrary to Mr Hanna's submission, the decision to grant expedition in this case was not an instance of a "fine balance", obtained with the slenderest of margins (the term used by Pepper J in Wren Investments). On the contrary, the Applicant's case was well founded. Secondly, what time has passed does not indicate a lack of effort on the Applicant's part. In Wren Investments, the Court found that the predicament of the party seeking expedition was entirely of its own making - with delays being a consequence of Wren not acting with due haste. By contrast, in the case of the Applicant before me, the timeline document annexed to Mr Griffiths' affidavit confirms the efforts taken by the Applicant from the moment the SCC was granted to the time the DA was lodged. 4. In this case, driven by what the Applicant saw as a necessity to avoid an impending prohibition of its DA by reason of the expiry of the SCC on 9 June 2018, it was entirely understandable for the Notice of Motion seeking expedition to have been brought. With the expedition application being brought in circumstances where the Council had failed to determine the DA within the stated statutory period of 62 days, it is the Respondent Council's failure that was the catalyst for the Applicant's application. It is in this context that the Court at the close of the hearing indicated that, in circumstances where the Applicant had been entirely successful on its application for expedition there was no basis, in exercising its discretion, to contemplate making any order for costs. ORDERS 1. At the conclusion of the hearing on 7 February 2018, the Court made the orders sought by the Applicant and reserved this judgment. Those orders were as follows: 1. That the proceedings be expedited. 2. That the s 34 conciliation process be dispensed with so that the proceedings can proceed straight to hearing. 3. That the parties have leave to attend the Registrar for the making of such other order as are necessary to facilitate expedition. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2018