Land and Environment Court New South Wales Medium Neutral Citation: Wirrabara Village Pty Limited v The Secretary of the Department of Planning and Environment [2018] NSWLEC 138 Hearing dates: 4 September 2018 Date of orders: 04 September 2018 Decision date: 04 September 2018 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [30]. Catchwords: JUDICIAL REVIEW: validity of the decision of a delegate to revoke a site compatibility certificate – failure to reach a necessary state of satisfaction – precondition to the exercise of power not met – jurisdictional error resulting in invalidity. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.48, 79C Environmental Planning and Assessment Amendment Act 2017 Environmental Planning and Assessment Regulation 2000, r 50(2A) State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Cases Cited: Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 2 Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 1187 Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 6; (2018) 229 LGERA 20 Texts Cited: Category: Principal judgment Parties: Wirrabara Village Pty Limited (Applicant) The Secretary of the Department of Planning and Environment (Respondent) Representation: Counsel: Mr A Galasso SC with Ms Z Heger (Applicant) Ms K Richardson SC with Mr B Cameron (Respondent) Solicitors: Addisons Lawyers (Applicant) The Secretary of the Department of Planning and Environment (Respondent) File Number(s): 2018/210545 Publication restriction: N/A Judgment A Decision of the Secretary of Planning and Environment is Invalid 1. By way of summons, the applicant, Wirrabara Village Pty Ltd ("Wirrabara"), seeks declaratory relief in relation to a decision made on 19 April 2018 by the respondent, the Secretary of the Department of Planning and Environment ("the Secretary"), to revoke a site compatibility certificate issued by it on 23 March 2018 ("the 2018 site compatibility certificate") ("the revocation decision"). 2. The parties agree that the decision is infected with jurisdictional error, is invalid, and therefore, must be set aside. 3. Having reviewed the material before the Secretary at the time the revocation decision was made, the Court agrees that this conclusion is correct and that the applicant to the proceedings, Wirrabara Village Pty Ltd ("Wirrabara"), is entitled to the relief sought in the summons. A Site Compatibility Certificate is Invalidly Revoked in Respect of a Development 1. The salient facts giving rise to these proceedings were contained in the summons and were not in dispute. The 2018 site compatibility certificate relates to a proposed development by Wirrabara at 3-5 Pellitt Lane and 9 Wirrabara Road, Dural ("the development"). 2. On 16 September 2015 an application for a site compatibility certificate for the development was lodged with the Department of Planning and Environment ("the Department"), on behalf of Wirrabara, pursuant to cl 25 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ("the SEPP"). 3. The application was for a self-care seniors living development consisting of 33 villa homes, 71 apartments, a nursing home with 72 beds, community facilities, an administration building, landscaping and recreational facilities. 4. On 9 June 2016 a site compatibility certificate was issued by the Secretary for 104 serviced self-care dwellings in combination with a 72 bed residential care facility, community buildings and associated car parking, subject to a requirement that the location and final number of serviced self-care housing dwellings and the number of beds in the residential care facility permitted should be determined by Council through the assessment of the development application under the then s 79C of the Environmental Planning and Assessment Act 1979 ("the EPAA") ("the first site compatibility certificate"). The first site compatibility certificate expired on 9 June 2018. 5. On 22 September 2017 a further application for a site compatibility certificate was lodged on behalf Wirrabara with the Department pursuant to cl 25 of the SEPP. The application was in substantially the same terms as the first application lodged on 16 September 2015. The second application was lodged so that there would be a current site compatibility certificate in place at the time of the determination of any development application for the site. 6. On 16 November 2017 an integrated development application was lodged with the Hills Shire Council ("the Council") on behalf of Wirrabara (DA number 944/2018/JP) for the demolition of existing structures and the construction of a seniors living development providing a 72 bed residential aged care facility, 117 self-care dwellings consisting of private apartments and independent living units, community facilities, the construction of private roads, bulk earthworks and retaining walls ("the DA"). 7. On 25 January 2018 a Class 1 application was filed in this Court on behalf of Wirrabara in respect of the Council's deemed refusal of the DA. 8. On 27 February 2018 the Court granted the expedition of the Class 1 Appeal (Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 6; 92018) 229 LGERA 20). 9. On 23 March 2018 the Secretary issued a further site compatibility certificate in the same terms as the first site compatibility certificate (that is, 2018 site compatibility certificate) in the following terms: I, the Deputy Secretary, Planning Services, as delegate of the Secretary of Department of Planning and Environment, determine the application made by Claron Consulting Pty Ltd on 5 October 2017 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: a. the site described in Schedule 1 is suitable for more intensive development; and b. 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 c. that development for the purposes of seniors housing if 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. On 19 April 2018 the Court dismissed the Class 1 appeal (Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 1187). 2. That same day the Secretary determined that the Department had reconsidered its decision to issue the second site compatibility certificate and had purported to revoke the second site compatibility certificate effective immediately (that is, the revocation decision): I refer to the site compatibility certificate (SCC) issued on 23 March 2018 in respect of the above site pursuant to clause 25(4) of State Environmental Planning Policy (Housing for Seniors or People with Disability) 2004. I also refer to development application no. 944/2018/JP lodged with The Hills Shire Council for all seniors housing development at the site (DA). At the time of issuing the SCC, the Department was not advised by Council nor the applicant that the DA was before the Land and Environment Court for determination, or that the Court had expedited the hearing of the DA. In the circumstances, the Department has reconsidered its decision to issue the SCC and has determined to revoke the SCC effective immediately. The Legislative Scheme 1. The revocation decision arises under the EPAA, the Environmental Planning and Assessment Regulation 2000 ("EPA Regulations"), and the SEPP. 2. The EPAA provides that environmental planning instruments (including SEPPs) may include provisions controlling development (see ss 1.4(1) and 3.14). 3. Section 1.4(8) of the EPAA provides that: A power, express or implied, to make or give an order, direction, declaration, determination or other instrument under this Act or under an instrument made under this Act includes a power to revoke or amend the order, direction, declaration, determination or other instrument. 1. Clause 3(1) of the SEPP defines the term "site compatibility certificate" as follows: site compatibility certificate means a certificate issued by the Director-General under clause 25 for the purposes of clause 24 (2). 1. Clause 24(1) of the SEPP states that the clause applies to certain land, and cl 24(2) relevantly provides that: (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). 1. Regulation 50(2A) of the EPA Regulations states as follows: (2A) A development application that relates to development in respect of which a site compatibility certificate is required by a State Environmental Planning Policy must be accompanied by such a certificate. 1. Clause 25 of the SEPP concerns applications for site compatibility certificates, and includes in cl 25(1)-(5), and (9): (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… … (9) A certificate remains current for a period of 24 months after the date on which it is issued by the Director-General… 1. In order to obtain development consent under the SEPP, a site compatibility certificate is therefore required. The Revocation Decision 1. On 6 August 2018, the delegate of the Secretary issued a Statement of Reasons in relation to the revocation decision. The Statement of Reasons relevantly stated that: 3.6. At the time I issued the 2018 SCC, none of the Secretary, the Department, or myself were aware, nor had we been advised by the Applicant or Council, that: 3.6.1. the Applicant had commenced proceedings in the Land and Environment Court (LEC) against Council's deemed refusal of the DA; 3.6.2. the Applicant had made an application to the LEC that the proceedings be expedited based on the then upcoming expiry of the 2016 SCC; 3.6.3. on 27 February 2018, the LEC had made orders for the expedition of the hearing based on the imminent expiry of the 2016 SCC; and 3.6.4. the merit appeal had been listed for an expedited hearing in the LEC in April 2018. … Reasons for the Revocation Decision 4. I formed the view that the facts set out above in paragraph 3.6 were material and relevant to my decision whether or not to grant the 2018 SCC. 5. I formed the view that I had power to revoke the 2018 SCC. 1. On 16 August 2018, the Department wrote to Wirrabara notifying it that certain matters contained within the Statement of Reasons were incorrect: We write to inform you that: 1. By letter dated 9 March 2018, sent by post, the Hills Shire Council (Council) informed the Planning Panels Secretariat (PPS) that the Applicant had commenced proceedings in the Land and Environment Court against the Council's deemed refusal of its development application dated 16 November 2017. We enclose a copy of the letter from the Council to PPS dated 9 March 2018, 2. This was inadvertently not brought to the Deputy Secretary's attention at the time he made the decision which is the subject of the Statement of Reasons dated 6 August 2018, 3. The Deputy Secretary became aware of the above on 13 August 2018. Jurisdictional Error by the Delegate 1. The Secretary has admitted that the revocation decision was infected by jurisdictional error in the following way: 1. Assuming that s 1.4(8) of the EPAA confers a power to revoke a site compatibility certificate issued under cl 25 of the SEPP (it is presently unnecessary to decide this issue in these proceedings), such power may only be exercised in a manner that is consistent with its nature, terms and purpose, when read in the context of cl 25 of the SEPP (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) [1986] HCA 40; 162 CLR 24 at 38); 2. the scheme created by cl 25 of the SEPP is to the effect that: 1. certain information is to be provided to the Secretary as part of the application process (cl 25(2), (3), (5(a) of the SEPP); 2. the Secretary, taking this information into account, must form an opinion that she or he has reached the requisite state of satisfaction to issue a site compatibility clause (cl 25(5) of the SEPP); and 3. once issued, a site compatibility certificate remains current for a period of 24 months after its issue; 1. it is inherent in the legislative scheme that there may be other information in existence that is relevant to any decision to issue a site compatibility certificate, but which is not information that is required to be provided to the Secretary as part of the application process ("other information"); 2. to exercise the power to revoke a site compatibility certificate on the basis that the other information was not known to the Delegate at the time of the decision to issue a certificate is not consistent with the nature, terms and purpose of the revocation power conferred by s 1.4(8) of the EPAA (assuming, without deciding for present purposes, that such a power is conferred) when read in the context of cl 25 of the SEPP; 3. is is apparent from the Statement of Reasons that the primary basis upon which the Secretary purported to revoke the 2018 site compatibility certificate was that he was not aware, nor had been advised by Wirrabara or the Council, of the factual matters set out at para 3.6 of the Statement of Reasons. However, it is inherent in the scheme created by cl 25 of the SEPP that there might be other information in existence that is relevant to any decision to issue a site compatibility certificate, but which is not information that is required to be provided to the Secretary as part of the application process. Accordingly, the purported revocation of the 2018 site compatibility certificate – on the basis that the factual matters set out at para 3.6 of the Statement of Reasons were not known to him at the time of his decision to issue that compatibility certificate – was not consistent with the nature, terms and purpose of any revocation power that was conferred by s 1.4(8) of the EPAA when read in the context of cl 25 of the SEPP. 1. The Court notes that in agreeing that the jurisdictional error occurred in relation to the making of the revocation decision, Wirrabara does not concede that, but for that jurisdictional error, s 1.4(8) of the EPAA would otherwise confer a power to revoke a site compatibility certificate issued under the SEPP. Equally, it is noted that the Secretary does not concede that s 1.4(8) of the EPAA does not otherwise confer a power to revoke a site compatibility certificate issued under the SEPP under other circumstances. These are issues for another day. 2. Rather, the parties agree that, with which the Court concurs, the Court can, and does, find that the jurisdictional error occurred without the necessity of expressing any view as to: 1. whether s 1.4(8) of the EPAA did in fact confer a power to revoke the 2018 site compatibility certificate issued under the SEPP; 2. whether s 1.4(8) of the EPAA would as a general matter confer a power to revoke a site compatibility certificate issued under the SEPP even where the certificate was lawfully issued (that is to say, whether the power arose in other circumstances); or 3. what the proper construction of s 1.4(8) of the EPAA is, either in the context of the SEPP, or in the context of the EPAA generally. 1. In addition to the jurisdictional error identified above, the delegate proceeded on an erroneous factual basis in making the revocation decision, namely, that the Department had not been advised by the Council of the matters set out in para 3.6 of the Statement of Reasons prior to the issue of the 2018 site compatibility certificate when in fact, it had. Again, the vexed issues of whether this error can amount to a jurisdictional error in all the circumstances need not be determined in these proceedings. 2. Rather, a jurisdictional error having been established in the manner described above, the Court's supervisory jurisdiction is enlivened and the Court has power to make orders remedying the error (Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531). Orders 1. For the above reasons, the Court grants the following relief: 1. a declaration that the Secretary's decision to revoke the site compatibility certificate issued on 23 March 2018 was vitiated by jurisdictional error and as a result is invalid or void, and of no force or effect; 2. an order that the Secretary is to pay Wirrabara's costs of the proceedings up to, and including, the date of these orders, on the ordinary basis, as agreed or assessed; and 3. an order that upon publication of this judgment online, the exhibits are to be returned to the parties. ********** 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: 05 September 2018