Al Maha Pty Ltd v Huajun Investments Pty Ltd

1. [1]

   BASTEN JA: The first respondent, Huajun Investments Pty Ltd (“Huajun”), owns a parcel of land at 38-42 Leicester Avenue, Strathfield. On 1 November 2016 it lodged a development application with the City of Canada Bay Council seeking approval to demolish existing structures on the land and replace them with an eight-storey residential apartment building. The application was not determined within the time permitted under the Environmental Planning and Assessment Act 1979 (NSW) and was therefore deemed to have been refused. On 2 May 2017 Huajun lodged a class 1 appeal to the Land and Environment Court.

2. [2]

   On 26 February 2018, following a conciliation conference, which resulted in agreement between Huajun and the Council, Commissioner Smithson granted consent to the development application. The applicant, Al Maha Pty Ltd (“Al Maha”), was the owner of an adjoining parcel of land at 36 Leicester Avenue, Strathfield. It was not a party to the development application, nor was it a party to the proceedings in the Land and Environment Court. However, it had lodged an objection to the development application on the basis that part of the development encroached on its land and it had not provided consent as the owner of land to which the development related.

3. [3]

   On 25 May 2018 Al Maha commenced proceedings in the supervisory jurisdiction of this Court claiming that the development consent was invalid. The respondents to the proceedings were Huajun (first respondent), the Land and Environment Court (second respondent) and the City of Canada Bay Council (third respondent).

4. [4]

   On 4 June 2018 Huajun filed a notice of motion in the Land and Environment Court seeking an order pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (“the slip rule”) amending the terms of the development consent; the motion was not opposed by the Council. On 7 June 2018 Commissioner Smithson purported to amend the conditions of the consent in accordance with the motion. The intended effect of the amendments was to remove from the description of the development any work which was required to be carried out on land owned by Al Maha.

5. [5]

   I agree with Preston CJ of LEC that the development consent is invalid and should be set aside. Subject to what follows, I also agree with his reasons.

Grounds of challenge

1. [6]

   Al Maha raised six grounds of challenge to the decision-making in the Land and Environment Court. Four of the grounds do not require further consideration. The first (ground 3A) alleged that the conciliation conference held on 15 February 2018 was invalidly constituted (i) because an earlier conference, held on 24 August 2017, had been terminated and the power to conciliate was exhausted, and (ii) because the conference held on 15 February 2018 was presided over by two Commissioners instead of one. For the reasons given by Preston CJ of LEC, there was no substance to these challenges. Further, had there been some irregularity in either of the ways alleged, it was not demonstrated that an agreement reached at or following the conference was therefore invalid.

2. [7]

   The second and third grounds which may be put aside concern the purported amendment of the development consent on 7 June 2018. The challenge to the power of the Court to make such a variation of a development consent pursuant to the slip rule (ground 4) should be upheld for the reasons given by Preston CJ of LEC. A further ground alleging procedural unfairness in denying Al Maha an opportunity to be heard in opposition to the amendment (ground 5) need not be addressed.

3. [8]

   Fourthly, ground 1 concerned the absence of consent of Al Maha to the development application. The requirements for a valid development application were prescribed by regulation. [1] Clause 49(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) reads as follows:

4. [9]

   A development application “relates” to any land on which development particularised in the application is to take place. For the reasons given by Preston CJ of LEC, the development application related to land owned by Al Maha and Al Maha had not given its consent in writing at any stage prior to the grant of development consent. Given that the proposed amendment failed, ground 1 must be upheld. The result is the invalidity of the development consent.

Incomplete application (ground 2)

1. [10]

   There are two further grounds which should be addressed and which form independent grounds for setting aside the development consent. Ground 2 relied upon the terms of s 34(3) of the Land and Environment Court Act 1979 (NSW). In order to understand the basis of the arguments in relation to both this ground and ground 3 (addressed below) it is convenient to set out the relevant provisions in s 34.

2. [11]

   The critical aspect of s 34(3) may be found in the words in parentheses providing that the Commissioner could only dispose of proceedings, following an agreement between the parties, if the proposed decision was “a decision that the Court could have made in the proper exercise of its functions”. That language might have been invoked with respect to the lack of owner’s consent. The Land and Environment Court could not have upheld an appeal seeking development consent for an application relating to land owned by Al Maha if Al Maha had not consented to the application.

3. [12]

   Ground 2 raised a separate issue, namely that, although the development application provided for the construction of permanent access at the rear of the building, allowing egress and ingress to and from Hilts Road, the plans of the development did not show how access to the basement car park levels was to be achieved, with the result that the proposed development was incompletely identified and the terms of the consent were therefore uncertain. The grant of consent to a deficient application was described as irrational or legally unreasonable.

4. [13]

   Al Maha was correct, as noted by Preston CJ of LEC at [211] below, to describe the plans as internally inconsistent and failing to delineate the changes which would be required by closing the temporary access to and from Leicester Avenue, and the construction of permanent access to and from Hilts Road. Whether the ground of challenge was made good is another question.

5. [14]

   A court exercising limited jurisdiction will be subject to constraints which may derive from differing sources. In this case one source was the Environmental Planning and Assessment Act, setting out mandatory requirements for dealing with a development application. A second source was the Land and Environment Court Act, setting out constraints imposed on the Court hearing an appeal. A third source was the general law, requiring that the Court, in exercising its powers, accord procedural fairness to the parties. The obligation to act rationally and, within a margin for error, reasonably, also find their source in the general law. A requirement to consider all mandatory considerations and to disregard prohibited considerations may find its content by necessary implication from the applicable statutory power.

6. [15]

   Some errors of fact or law may properly be described as “irregularities” as, for example, under s 31 of the Land and Environment Court Act, and do not necessarily lead to invalidity of any resulting orders. On the other hand, failure to comply with laws, whatever their source, which fix the boundaries of authority or jurisdiction will result in invalidity.

7. [16]

   If a decision of the Land and Environment Court could be set aside or declared invalid by this Court, it is not “a decision that the Court could have made in the proper exercise of its functions”. Nor would it make sense to read s 34(3) as implicitly authorising such a decision. If the development application lacked essential elements, the deficiencies could render a consent one which could not have been granted in the proper exercise of the Court’s functions. However, Al Maha framed its ground as a challenge based on the legal unreasonableness of the consent. It is not necessary to determine whether this was an appropriate formulation of the ground, nor whether the deficiencies in the plans were such as to allow them to be characterised in this way. Al Maha succeeds on other grounds.

Functions of Commissioner (ground 3)

1. [17]

   Ground 3 also relied upon the operation of s 34(3), but for a separate reason to those already considered. The Canada Bay Local Environmental Plan 2013 (“the LEP”) prescribed development standards, including height controls, which were exceeded by the proposed development. There was power in the consent authority, pursuant to cl 4.6 of the LEP, to grant consent despite non-conformity with a development standard.

2. [18]

   In order to grant consent despite the non-conformity, the consent authority had to take certain steps and reach a certain degree of satisfaction. In the present case the consent authority was the Court; pursuant to s 34(8) the decision of the Commissioner was taken to be the decision of the Court. Accordingly, the Commissioner was required to reach a relevant state of satisfaction. If she did not, then the decision was one which the Court could not make and was therefore invalid as a result of the requirements of s 34(3) discussed above.

3. [19]

   There were two issues in contention with respect to this ground. The first was a factual matter, namely whether the Commissioner had formed the relevant state of satisfaction. The second was the basis upon which this Court could be satisfied that error had been established. It was not in dispute that Al Maha bore the onus of proving that the Commissioner had not been satisfied in accordance with the requirements of the LEP. However, there was a further question as to the significance of the lack of reasons given by the Commissioner in respect of this issue.

4. [20]

   The relevant provision of the LEP reads as follows:

5. [21]

   A consideration of legal error should start by identifying the criterion as to which the Commissioner was to be satisfied. On a literal reading, subcl (4)(a)(i) merely required that she be satisfied that the applicant had taken two steps, namely, that it had, first, made a written request to be excused compliance with the development standard and, secondly, “adequately addressed” the matters set out in subcl (3). On that (narrow) reading, the Commissioner did not need to form any view herself about the justification for failing to comply with the development standard.

6. [22]

   The alternative reading is that the matters would not be “adequately” addressed unless they in fact justified the non-conformity. In other words, the Commissioner had to be satisfied that there were proper planning grounds to warrant the grant of consent, and that the contravention was justified.

7. [23]

   The second reading is attractive for three reasons. First, in its terms, it gives work to the evaluative requirement implicit in the need to be satisfied that certain matters have been “adequately” addressed. Secondly, this is not a gateway provision prior to public consultation or further assessment; it is a criterion for the ultimate grant of consent. [2] Thirdly, the narrow approach fails to give separate work to subcll (3) and (4). Thus, subcl (3) requires the consent authority to have “considered” the written request and identifies the necessary evaluative elements to be satisfied. That is, to comply with subcl (3), the request must demonstrate that compliance with the development standard is “unreasonable or unnecessary” and that “there are sufficient environmental planning grounds to justify” the contravention. It would give no work to subcl (4) to simply require the Commissioner to be satisfied that the demonstration required under subcl (3) had occurred. The additional step is that the request satisfied the Commissioner that it should be granted.

8. [24]

   However, it is not necessary to resolve this issue in this case, because it should be accepted that the Commissioner did not form either state of satisfaction. Further, it is not appropriate to determine the issue in the absence of submissions as to the purpose and extent of the departures of the language of cl 4.6 from its predecessor, State Environmental Planning Policy No 1—Development Standards, cll 7 and 8.

9. [25]

   A failure to comply with an obligation to give reasons may itself constitute a basis for setting aside the decision, where it can be said that giving reasons was a condition of validity. (No such contention was put forward in the present case.) An alternative consequence is that the absence of reasons may more readily allow an inference that a particular matter was not determined (or not considered), because the Commissioner was required to indicate what she had decided (or considered). It was on this (evidential) approach that the applicant relied.

10. [26]

    There is no doubt that a duty to give reasons is generally an inherent part of the judicial function. That is not to say that the duty is uniform, or universal; it is neither. The administration of justice would quickly grind to a halt if it were otherwise. Nevertheless, the duty is generally attracted to any final determination of a dispute before a court. Further, there may be other bodies which attract an implied obligation to give reasons if their functions are quasi-judicial. [3] The application of that reasoning favours the existence of an obligation to give reasons with respect to prerequisites to the exercise of a power. That conclusion is strengthened by the fact that an order made by a Commissioner is taken to be an order of the Court. [4]

11. [27]

    There are countervailing considerations. First, where proceedings are disposed of in accordance with an agreement reached at or after a conciliation conference, the Commissioner is required to “dispose of the proceedings in accordance with the [agreed] decision”. [5] The terms of the decision must be set out in writing (s 34(3)(b)), but there is no express requirement for reasons. Indeed, an inference that a decision giving effect to agreed terms following a conciliation conference would not require reasons might arise from the fact that a degree of confidentiality applies to things said and done in the course of a mediation.

12. [28]

    Secondly, where no agreement is reached and the conference is terminated, the parties may consent to the Commissioner disposing of the proceedings following a hearing, or on the basis of what occurred at the conciliation conference, in which case the Commissioner is expressly required to give reasons for such a decision: s 34(5). The negative inference to be drawn from this provision is that reasons need not be given (and perhaps should not be given) where the determination merely gives effect to an agreed decision of the parties.

13. [29]

    Accepting that, where agreement is reached, nothing is required of the Commissioner beyond giving effect to the decision of the parties set out in writing, there remains a question as to what should be done in circumstances where a precondition of the exercise of the Court’s powers described in s 34(3) is engaged, by which the Commissioner was required to satisfy herself as to a particular matter. In that circumstance, the Commissioner may be required to make findings of fact, law, or mixed fact and law. Because the final decision will be taken to be a decision of the Court, pursuant to s 34(8), the usual expectation would be that any necessary findings should be set out in written form and at least brief reasons given, consistent with the limitations on what should be disclosed following a conciliation conference, as to why the Commissioner was satisfied (if she were so satisfied) that the conditions were fulfilled.

14. [30]

    There is nothing in the statute which contradicts the operation of a general law obligation to give reasons in that specific respect. In my view, the Commissioner was obliged to identify the criteria to be fulfilled for the proper exercise of the Court’s functions in approving the development application and was required to indicate, albeit briefly, how she had satisfied herself in those regards.

15. [31]

    The Commissioner published a “judgment” in this matter. [6] The first paragraphs read:

16. [32]

    I agree with Preston CJ of LEC that the statement in the second sentence as to satisfaction that the decision could have been made in the proper exercise of the Court’s functions was “formulaic” and inadequate to satisfy either an obligation to state findings of fact, or to give reasons therefor.

17. [33]

    While it is true that the Commissioner was not required to make any “merit assessment of the issues … in dispute between the parties”, the statement to that effect, without reference to the matters as to which she was required to form a state of satisfaction, leads to an inference that she identified none. Conditions as to which she was required to form an opinion could not be satisfied by agreement between the parties; nor were they part of the agreed “decision”.

18. [34]

    There was (at the very least) an issue as to whether owner’s consent had been obtained from a relevant landowner. In its notice of objectors, Al Maha had identified itself as “the owner of 36 Leicester Avenue”. The written objection did not refer to the lack of consent; whether the issue was raised at the on-site conference is not known. It may be inferred that the Commissioner probably knew that consent was required and could have known that consent had not been forthcoming. In any event, if she had formed a state of satisfaction with respect to the elements of cl 4.6 of the LEP, one would have expected her to note it, although one might not expect her to have noted the degree of ambiguity in its language.

19. [35]

    Thus, although the Commissioner thought it appropriate to publish a judgment stating what she had decided, with the introduction set out above, the fact that in doing so she made no reference to the conditions precedent to the exercise of power demonstrates to my satisfaction that she did not identify or consider them. I would uphold ground 3.

Orders

1. [36]

   The applicant sought four substantive orders, together with costs. Orders 1 and 2 sought, respectively, the quashing of the decision made on 26 February 2018 to grant development consent and a declaration that the development consent is void and of no effect. Properly the orders should be quashed; in strict terms a declaration adds nothing. However, it would not be inappropriate to make a declaration that the consent given to the development application was invalid.

2. [37]

   The applicant also sought an order quashing the decision made on 7 June 2018 to amend the conditions of the development consent. If the order granting development consent is quashed, the amendment must fall with it, as it failed to cure the invalidity of the consent. No further order is required, but the quashing order and any declaration should refer to the consent granted on 26 February 2018, as amended on 7 June 2018.

3. [38]

   Further, the applicant sought an order restraining Huajun from taking any steps in pursuance of, or in reliance on, the development consent. There are various enforcement proceedings which might be taken to prevent such activity. The evidence did not establish the need to add a further disincentive in the form of a potential liability for contempt of court.

4. [39]

   The first respondent should be ordered to pay the applicant’s costs of the proceedings.

5. [40]

   The Court should make the following orders:

   1. (1)

      Quash the decision made in the Land and Environment Court on 26 February 2018 granting consent to development application N0429/16 lodged on behalf of Huajun Investments Pty Ltd with the City of Canada Bay Council, as amended by the decision of the Court on 7 June 2018 (the development consent).

   2. (2)

      Declare that the development consent is invalid.

   3. (3)

      Order that the first respondent (Huajun Investments Pty Ltd) pay the costs of the applicant, Al Maha Pty Ltd, in this Court.

6. [41]

   LEEMING JA: I agree with Basten JA and Preston CJ of LEC, and with the orders proposed by Basten JA.

7. [42]

   PRESTON CJ OF LEC:

Nature of proceedings and outcome

1. [43]

   The Court arranged a conciliation conference between the parties (Huajun and the Council) under s 34(1)(a) of the Land and Environment Court Act 1979 (“the Court Act”). The parties were unable to reach agreement at the conciliation conference. The Commissioner who presided at this conciliation conference terminated the conciliation conference under s 34(4) of the Court Act. The Court then fixed the proceedings for hearing.

2. [44]

   The hearing of the proceedings commenced before two Commissioners of the Court. At the end of the first day of the hearing, at the request of the parties, the Court arranged a second conciliation conference under s 34(1)(a) of the Court Act and adjourned the further hearing of the proceedings until after that conciliation conference had been held. The second conciliation conference commenced as arranged and was adjourned a couple of times. The parties reached agreement as to the terms of the decision in the proceedings that would be acceptable to the parties. These terms included granting leave to further amend the development application and plans and granting development consent to the further amended development application subject to conditions agreed between the parties.

3. [45]

   The parties requested the Commissioner presiding over the second conciliation conference to dispose of the proceedings in accordance with the decision of the parties, under s 34(3)(a) of the Court Act. The Commissioner decided to do so and made orders in terms of the parties’ agreement, including granting leave to Huajun to further amend its development application and plans, upholding the appeal and granting development consent to the further amended development application subject to the conditions agreed between the parties (“the development consent decision”). The development consent decision of the Commissioner is taken to be the decision of the Court (s 34(8) of the Court Act).

4. [46]

   The owner of neighbouring land, Al Maha Pty Ltd (“Al Maha”), which owns 36 Leicester Avenue, Strathfield, had objected to Huajun’s development. Al Maha also objected to the development consent that was granted by the Commissioner. Al Maha considered that the development consent granted to the further amended development application approved the carrying out of development on Al Maha’s land. The approved development included the construction of a driveway to provide permanent access between the development and a public road at the rear, named Hilts Road. Al Maha had not given its consent as owner of the land to the further amendment of the development application to provide for the construction of the driveway connection to Hilts Road on Al Maha’s land.

5. [47]

   As Al Maha was not a party to the proceedings before the Land and Environment Court, it did not have a right of appeal against the development consent decision of the Commissioner under s 56A of the Court Act. Al Maha could, however, seek to judicially review the Commissioner’s development consent decision.

6. [48]

   Al Maha brought proceedings in the Supreme Court under s 69 of the Supreme Court Act 1970 to quash the Commissioner’s development consent decision. The grounds of challenge raise the Commissioner’s lack of jurisdiction to make the decision to grant development consent, including because jurisdictional preconditions to the exercise of the power to grant consent to the development application had not been satisfied. One of these jurisdictional preconditions was the absence of consent of Al Maha, as owner of the land on which the driveway connection to Hilts Road was to be constructed, to the further amended development application.

7. [49]

   After some interlocutory applications in the Supreme Court, the proceedings were removed to the Court of Appeal for hearing and determination. Before the Court of Appeal heard the proceedings, the parties to the proceedings in the Land and Environment Court (Huajun and the Council) applied, by consent, to the Commissioner to amend the orders that the Commissioner had made, by exercising the power in the slip rule, r 36.17 of the Uniform Civil Procedure Rules 2005. The parties applied for the orders, the conditions of development consent, and the plans approved by the consent to be amended in various ways in order to limit the approved development and the land on which the approved development could be carried out to Huajun’s land and not Al Maha’s land. The Commissioner made the orders requested by the parties, purportedly exercising the power under the slip rule (“the slip rule decision”).

8. [50]

   Al Maha amended its claim in the Supreme Court proceedings to challenge the Commissioner’s slip rule decision. One of the grounds of challenge was that the slip rule decision was not authorised by the slip rule.

9. [51]

   I have determined that certain grounds of Al Maha’s challenge to the Commissioner’s development consent decision and slip rule decision have been established and that both decisions and the development consent should be set aside. Huajun should also be restrained from carrying out the development in accordance with the purported consent.

The challenge to the development consent decision

1. [52]

   Al Maha challenged the development consent decision on four grounds:

   1. (1)

      the absence of consent of Al Maha to Huajun’s development application to carry out part of the development on Al Maha’s land (“the owner’s consent ground”);

   2. (2)

      the decision to grant consent to the development, as further amended, was legally unreasonable and so lacking in certainty and finality as to leave open the possibility of a significantly different development (“the irrationality ground”);

   3. (3)

      the failure of the Commissioner to form the requisite opinions of satisfaction under cl 4.6 of Canada Bay Local Environmental Plan 2013 (“the LEP”) justifying the contraventions of the development standards in the LEP (“the cl 4.6 ground”); and

   4. (4)

      the second conciliation conference was invalidly constituted and the development consent decision that resulted from that conciliation conference was invalid (“the conciliation conference ground”).

2. [53]

   These grounds challenge the jurisdiction of the Commissioner under s 34 of the Court Act to have made the decision and order granting development consent. The first and third grounds concern the non-satisfaction of jurisdictional prerequisites to the exercise of the power to grant development consent to the development application, one being the absence of owner’s consent to the development application and the other being the failure to form the opinions of satisfaction required under cl 4.6 before granting development consent. The second ground concerns the mis-exercise of the power to grant development consent by making a legally unreasonable and uncertain decision. The fourth ground concerns the Commissioner lacking jurisdiction to make the decision because of the invalid constitution of the conciliation conference. To understand these grounds of jurisdictional error, it is instructive to explain the jurisdiction the Commissioner sought to exercise in the conciliation conference under s 34 of the Court Act.

Operation of s 34 of the Court Act

1. [54]

   Section 34 of the Court Act provides for a combined or hybrid dispute resolution process involving, first, conciliation and, secondly, if the conciliation conference is unsuccessful and the parties agree, adjudication of the proceedings.

2. [55]

   The conciliation involves a Commissioner of the Court acting as a conciliator in a conference between the parties to proceedings that are pending in Class 1, 2 or 3 of the Court’s jurisdiction. The conciliator facilitates the negotiation between the parties, or their representatives, with a view to the parties reaching agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. [56]

   If the parties are able to reach agreement, the conciliator, being a Commissioner of the Court, has power to dispose of the proceedings in accordance with the decision in respect of which the parties have reached agreement, provided that the decision is one that the Court could have made in the proper exercise of its functions (s 34(3)(a) of the Court Act). If the parties are not able to reach agreement as to the terms of a decision that would be acceptable to the parties, the parties can nevertheless agree to the Commissioner disposing of the proceedings by adjudication, with or without a hearing (s 34(4)(b) of the Court Act).

4. [57]

   This case focuses on the first process of conciliation and the powers of the Court to arrange more than one conciliation conference and of the Commissioner to dispose of the proceedings in accordance with the parties’ decision in respect of which the parties have reached agreement at the conciliation conference.

5. [58]

   Section 34 gives the Court the power to arrange a conciliation conference and regulates how the combined conciliation – adjudication process is to be undertaken. Section 34 provides:

6. [59]

   This form of the section was introduced by the Courts Legislation Amendment Act 2007 (Schedule 6, item [15]). The new section introduced a number of changes to the earlier section. One of the changes of importance was the introduction of the word “may” in s 34(1) instead of the word “shall” that had previously been used. This change effected a change from a duty on the Court to a power of the Court to arrange a conference. Section 34(1) when first enacted in the Land and Environment Court Act 1979 provided:

7. [60]

   The original provision imposed a duty on the registrar of the Court to arrange a conference between the parties (then referred to as a preliminary conference rather than a conciliation conference, but the conference was for the same purpose). The Chief Judge could, however, direct the registrar not to arrange a conference in a particular proceeding or class of proceedings. The original provision only applied to proceedings pending in Class 1 or 2 of the Court’s jurisdiction and did not apply to proceedings in Class 3 of the Court’s jurisdiction.

8. [61]

   The original s 34(1) was amended by the Land and Environment Court Amendment Act 2002 (Schedule 1, item [7]) by inserting “(other than proceedings in Class 1 that are brought under section 97 of the Environmental Planning and Assessment Act 1979)” after “jurisdiction” in s 34(1). This amendment was part of a package of legislative reform that introduced the new provisions of ss 34A to 34D of the Court Act. Section 34A required certain proceedings in Class 1 that are brought under s 97 of the EPA Act to be dealt with as on-site hearing matters. Section 34B(1) provided that on-site hearing matters are to be dealt with by means of a conference presided over by a single Commissioner. The evident intent of the amendment to s 34(1) was that there would be no utility in arranging a conference under s 34(1) for proceedings under s 97 of the EPA Act if these proceedings will be dealt with as an on-site hearing matter by means of a conference.

9. [62]

   This amendment of s 34(1), which commenced in 2003, was reversed in 2006 by the Crimes and Courts Legislation Amendment Act 2006 (Schedule 1, item [1]), which omitted the same phrase “(other than Class 1 proceedings that are brought under s 97 of the Environmental Planning and Assessment Act 1979)” from s 34(1). Section 34(1) therefore reverted to the form it had been in on enactment. Of importance, the amended provision (by the use of the word “shall”) continued to impose a duty on the registrar to arrange a conference unless otherwise directed by the Chief Judge.

10. [63]

    The Crimes and Courts Legislation Amendment Act 2006 also changed the duty to arrange a conciliation conference in proceedings pending in Class 3 of the Court’s jurisdiction to a power. The original s 34 had only applied to proceedings pending in Class 1 and 2 of the Court’s jurisdiction. In 1992, by the Land Acquisition (Just Terms Compensation) Act 1991 (Schedule 1, item (3)), s 34 was extended to proceedings in Class 3 of the Court’s jurisdiction in respect of a claim for compensation by reason of the compulsory acquisition of the land. The new s 34(1A) introduced in 1992 provided:

11. [64]

    Section 34(1A) was amended in 2006 to provide instead:

12. [65]

    The amended provision gave the registrar the power to arrange a conference between the parties to proceedings pending in Class 3 of the Court’s jurisdiction (the registrar “may” at any time arrange a conference), rather than impose a duty to arrange a conference as the former subsection (1A) had done (the registrar is “required” to arrange a conference).

13. [66]

    The current form of s 34 incorporates another change of importance from the original s 34, concerning the need to record in writing the decision that the Commissioner makes under the current s 34(3) or s 34(4)(b) of the Court Act. Under the original s 34, the Commissioner had the same power to dispose of the proceedings in accordance with the parties’ decision reached at or after the conciliation conference (under the then s 34(3)(a)) or after adjudication (under the then s 34(3)(b)(ii)). But there was no legislative requirement to record in writing the Commissioner’s decision to dispose of the proceedings by either means. The original s 34(3) provided:

14. [67]

    This provision was amended by the Crimes and Courts Legislation Amendment Act 2006 (Schedule 1, items [3] and [4]). Section 34(3)(a) was amended to insert “and is to set out in writing the terms of the decision” after “decision” where lastly occurring. A new subsection (3A) was inserted:

15. [68]

    These amendments introduced different requirements for recording in writing the decision, depending on how the decision was made. A less demanding requirement, of setting out in writing the terms of the decision, applied if the Commissioner disposed of the proceedings under s 34(3)(a) in accordance with the parties’ decision in respect of which the parties had reached agreement at or after the conciliation conference. A more demanding requirement, of giving written reasons for the decision, applied if the Commissioner disposed of the proceedings by adjudication under s 34(3)(b), whether with or without further hearing. This more demanding requirement for the Commissioner to give written reasons accorded with the similar requirement to given written reasons for a decision in on-site hearing matters (see s 34B(4)).

16. [69]

    These different requirements for recording in writing the decision of the Commissioner were continued in the form of s 34 introduced in 2008, which is the current form of s 34. Under the current s 34(3)(b), the Commissioner need only “set out in writing the terms of the decision” in respect of which the parties have reached agreement and in accordance with which the Commissioner disposes of the proceedings. In contrast, under s 34(5), the Commissioner must give reasons for the Commissioner’s decision under s 34(4)(b) to dispose of the proceedings by adjudication, either in writing or orally and recorded by means that can be reproduced.

17. [70]

    These different requirements for recording in writing the decision of the Commissioner reveal a legislative intention to restrict the application of the obligation to give reasons for the Commissioner’s decision to a decision under s 34(4) and not a decision under s 34(3) of the Court Act.

18. [71]

    A jurisdictional requirement that has remained constant from the original enactment of s 34 to date is that the power of the Commissioner to dispose of the proceedings in accordance with the parties’ decision is made conditional on that decision “being a decision that the Court could have made in the proper exercise of its functions” (in s 34(3) of all versions of the section). If the parties’ decision does not answer that description, the Commissioner has no power to dispose of the proceedings in accordance with the parties’ decision.

19. [72]

    The requirement that the decision be one that the Court could have made in the proper exercise of its functions demands that the Commissioner examine the functions that the Commissioner would be exercising in order to dispose of the proceedings in accordance with the parties’ decision. The functions will vary depending on the nature of the proceedings in Class 1, 2 or 3 of the Court’s jurisdiction.

20. [73]

    The Commissioner would first need to check that the Court has jurisdiction to hear and dispose of the particular proceedings. The Court Act lists the proceedings in Class 1, 2 and 3 that the Court has jurisdiction to hear and dispose of in ss 17, 18 and 19 of the Court Act.

21. [74]

    The Commissioner would next need to identify what functions would be exercised in disposing of the proceedings in accordance with the parties’ decision. In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court exercises the functions of the person or body whose decision is the subject of the appeal (see s 39(2) of the Court Act). Those functions will be stated in the statute under which the appeal is brought. The statute will specify the function, the conditions, including any preconditions, governing the exercise of the function, and the permitted outcomes of the exercise of the function.

22. [75]

    In this case, for example, the proceeding was an appeal under s 97(1) now s 8.7(1) of the Environmental and Planning Assessment Act 1979 (“EPA Act”), in Class 1 of the Court’s jurisdiction, against the Council’s deemed refusal of Huajun’s development application. On appeal, the Court exercises the functions of the Council as the consent authority, under s 80(1) now s 4.16(1) of the EPA Act, to determine the development application (see s 8.14(2) of the EPA Act).

23. [76]

    A “decision that the Court could have made in the proper exercise of its functions” under s 80(1) now s 4.16(1) of the EPA Act is one which the Court, exercising the functions of the consent authority, has jurisdiction to make. Under 80(1) now s 4.16(1) of the EPA Act, the consent authority can determine a development application by granting consent to the application, either unconditionally or subject to conditions, or refusing consent to the application. A development application can only be made for consent to carry out development that an environmental planning instrument provides may not be carried out except with development consent (s 77 now s 4.9 of the EPA Act). A development application cannot be made for consent to carry out development that does not need consent (s 76(1) now s 4.1(1) of the EPA Act) or that is prohibited (s 76B now s 4.3(1) of the EPA Act).

24. [77]

    The EPA Act and the Environmental Planning and Assessment Regulation 2000 (“the Regulation”) regulate the procedures for making a development application, including prescribing the form and content of the development application. One of the content requirements is that the development application contain evidence that the owner of the land on which the development is to be carried out consents to the application. This requirement is discussed in the section on the owner’s consent ground below.

25. [78]

    An environmental planning instrument, such as the LEP in this case, may provide that development consent is not to be granted except if some condition is satisfied. Clause 4.6 of the LEP in this case is an example. It provides that development consent must not be granted for development that contravenes a development standard unless the consent authority is satisfied about certain matters (see cl 4.6(4)(a) of the LEP). This requirement is discussed in the section on the cl 4.6 ground below.

26. [79]

    The requirement in the EPA Act and the EPA Regulation that a development application contain evidence of the owner’s consent to the application and the requirement in the applicable environmental planning instrument that development consent not be granted except if some condition is satisfied, are jurisdictional prerequisites that need to be satisfied in order for the consent authority (and the Court on appeal exercising the functions of the consent authority) to be able to exercise the function of determining a development application by granting consent to the development application. Under s 34(3) of the Court Act, if the jurisdictional prerequisites to the exercise of the function of determining a development application by granting consent to the development application are not satisfied, a decision to grant consent to the development application will not be “a decision that the Court could have made in the proper exercise of its functions.” The Court could not make that decision.

27. [80]

    With this explanation of the Court’s jurisdiction under s 34(3) of the Court Act to dispose of proceedings in accordance with the parties’ decision, I will address each of the grounds of challenge to the Commissioner’s development consent decision. I will deal with the grounds in the following order: the owner’s consent ground, the cl 4.6 ground, the irrationality ground and the conciliation conference ground.

The owner’s consent ground

1. [81]

   Al Maha contended that Huajun sought leave to amend, and the Commissioner granted leave to amend, Huajun’s development application and plans to carry out part of the development on Al Maha’s land. This part of the development was the construction of the driveway from the basement of the residential flat building across Al Maha’s land to the extension of Hilts Road that the Council would construct. Al Maha contended that the Commissioner granted development consent to the further amended development application to construct this driveway connection to Hilts Road. Al Maha contended that the Commissioner lacked power to grant consent to this driveway connection to Hilts Road in the absence of the consent in writing of Al Maha as owner of the land over which the driveway connection to Hilts Road would be constructed. Al Maha submitted that the owner’s consent is a jurisdictional prerequisite to a valid determination to grant consent to a development application.

2. [82]

   Huajun did not contest that obtaining owner’s consent to a development application to carry out development on the owner’s land is a jurisdictional prerequisite to a valid development consent. Huajun did, however, contest that either Huajun’s development application proposed to carry out any part of the development on Al Maha’s land or the development consent granted by the Commissioner approved the carrying out of any part of the development on Al Maha’s land.

3. [83]

   Huajun also attempted to avoid this issue of the lack of owner’s consent by making an application to amend the Commissioner’s decision under the slip rule so that the consent did not approve the carrying out of the development on Al Maha’s land. I will address this attempt in the section on the challenge to the slip rule decision.

4. [84]

   The contest between the parties turned, therefore, on a proper construction of the development application as amended and the development consent decision. Before addressing this contest it will assist to summarise the legal framework that imposes the requirement for owner’s consent to a development application. I will refer to the statutory provisions as they were at the time of Huajun making its development application and the Commissioner granting development consent, but will include reference to the new numbering of the provisions of the EPA Act to assist future understanding of the summary of the legal framework.

5. [85]

   An environmental planning instrument may provide that specified development may not be carried out on land except with development consent (s 76A(1) now s 4.2(1) of the EPA Act). A person may apply to a consent authority for consent to carry out development on the land. The development application is to be in accordance with the regulations (s 78A(1) now s 4.12(1) of the EPA Act). The regulations may specify “other things that are required to be submitted with a development application” (s 78A(9) now s 4.12(9) of the EPA Act).

6. [86]

   The Regulation specifies that a development application must contain the information, and be accompanied by the documents, specified in Part 1 of Sch 1 of the Regulation (cl 50(1)(a) of the Regulation). Part 1 of Sch 1 of the Regulation specifies that a development application must contain, amongst other information:

7. [87]

   An “owner” is defined as having the same meaning as in the Local Government Act 1993 (s 4(1) now s 1.4(1) of the EPA Act). The Local Government Act defines “owner” to include “every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession.”

8. [88]

   The Regulation does require owner’s consent where the application is made by a person other than the owner. The Regulation provides that a development application may be made:

9. [89]

   The owner whose consent to the making of the development application is required is the owner of the land on which the development the subject of the development application is to be carried out: North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 476-477; [1996] HCA 20. This is “the land to which the development application relates” (cl 49(1) of the Regulation). The development application seeks consent to carry out particular development on particular land. The development application must contain “a description of the development to be carried out” and “the address, and formal particulars of title, of the land on which the development is to be carried out” (cl 1(1)(b) and (c) of Sch 1 of the Regulation). Having identified the development and the land on which the development is to be carried out, the development application must contain “evidence that the owner of the land on which the development is to be carried out consents to the application” (cl 1(1)(i) of Sch 1 of the Regulation).

10. [90]

    The consent authority determines the development application that has been made (s 80(1) now s 4.16(1) of the EPA Act). In determining the development application, the consent authority takes into consideration such of the matters in s 79C(1) now s 4.15(1) of the EPA Act as are of relevance to “the development the subject of the development application.”

11. [91]

    The land on which the development is to be carried out is to be determined not only from the address and formal particulars of title shown on the development application form but also from the documents that must accompany the development application. The Regulation requires the development application to be accompanied by specified documents, including “a site plan”, “a sketch of the development”, and “a statement of environmental effects” (in the case of development other than designated development or State significant development) or “an environmental impact statement” (in the case of designated development or State significant development) (cl 2(1)(a),(b),(c),(e) of Sch 1 of the Regulation). The site plan must indicate, amongst other matters, “the location, boundary dimensions, site area and north point of the land” (cl 2(2)(a) of Sch 1 of the Regulation). The sketch must indicate the following matters:

12. [92]

    A statement of environmental effects must indicate, amongst other matters, “the environmental impacts of the development”, which necessarily involves a description of the development and the environment that the development will impact (cl 2(4) of Sch 1 of the Regulation). An environmental impact statement must be in the prescribed form, contain information including “the address of the land in respect of which the development application is to be made” and “a description of the development to which the statement relates” (cl 6(c) and (d) of Sch 2 of the Regulation), and contain the prescribed content, including “an analysis of the development”, which involves “a full description of the development” (cl 7(1)(d)(i) of Sch 2 of the Regulation).

13. [93]

    These accompanying documents describe the development to be carried out and the land on which the development is to be carried out.

14. [94]

    If the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application: see Owners – Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32]. Conversely, the description of the land on which the development is to be carried out in the accompanying documents (such as the statement of environmental effects) can also confine the land to which the development application relates to be a lesser parcel of land than is described in the development application form: see Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208 at [60]-[63].

15. [95]

    The giving of owner’s consent to the making of a development application with respect to the owner’s land for the purpose of cl 49 of the Regulation is an essential prerequisite to, and part of the process of, a consent authority’s determination of the application. That is to say, the giving of owner’s consent is necessary to enable the consent authority to exercise its function to grant development consent to the application if it be minded to do so. On an appeal from a determination of the consent authority, the Land and Environment Court cannot uphold the appeal and grant development consent to the development application unless the owner’s consent to the making of the application has been given: Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34(c) and (e)].

16. [96]

    Although the statutory prescriptions regulating owner’s consent require the development application to contain “evidence that the owner of the land on which the development application is to be carried out consents to the application” (see cl 1(1)(i) of Sch 1 of the Regulation), the failure of the development application to contain evidence of owner’s consent at the time it is made does not render the development application invalid or void. As Spigelman CJ held in Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300 at [35]:

17. [97]

    The development application will be “ineffective and incomplete” whilst so ever the development application does not contain the information and is not accompanied by the documents that the EPA Act and the Regulation require to be provided in order for the consent authority to validly exercise the power to determine the development application. There can be no valid determination of the development application until there is substantial compliance with such statutory prescriptions: McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [189].

18. [98]

    Substantial compliance may be satisfied by the later provision of the required information or documents: Botany Bay City Council v Remath Investments No 6 Pty Ltd at [14], [18] and McGovern v Ku-ring-gai Council at [187]-[200]. In particular, the lack of owner’s consent to a development application can be cured at any time up until the determination of the application: see Botany Bay City Council v Remath Investments No 6 Pty Ltd at [5]-[7] and cases therein cited.

19. [99]

    The recent decision of the High Court of Australia in Forrest and Forrest Pty Ltd v Wilson (2017) 91 ALJR 833; [2017] HCA 30 does not affect these conclusions that non-compliance with the statutory prescription that the development application contain evidence of owner’s consent does not cause the development application to be invalid and that the non-compliance can be cured by the later provision of owner’s consent at any time up until the determination of the development application. Forrest and Forrest Pty Ltd v Wilson concerned a different and very particular statutory requirement in the Mining Act 1978 (WA). The High Court held that “the clear meaning” of the statutory provision “was that the documentation relied upon must have been lodged at the same time as the application was lodged”; “the text” of the provision “did not admit of any ambiguity or doubt on this point”; “the tenor” of the provision “was both precise and prescriptive, conveying an intention not to countenance any degree of non-compliance with the requirement”: at [67].

20. [100]

    The statutory provision in that case stands in contrast to the statutory prescriptions in the EPA Act and the Regulation for a development application to contain evidence that the owner of the land on which the development is to be carried out consents to the application. These statutory prescriptions do not convey an intention that the development application will be invalid if there is non-compliance with the requirement for owner’s consent or that any non-compliance is incapable of being cured up until the time of determination of the development application.

21. [101]

    I note that this Court also recently distinguished Forrest and Forrest Pty Ltd v Wilson in finding that a failure of a proposed acquisition notice given under the Land Acquisition (Just Terms Compensation) Act 1991 to strictly comply with the legislative requirements does not necessarily result in the invalidity of the notice. The Court contrasted the legislative requirements governing applications for a mining lease under the WA Mining Act, considered by the High Court, with the legislative requirements for a proposed acquisition notice in order to begin the compulsory acquisition process under the Land Acquisition (Just Terms Compensation) Act: see Roads and Maritime Service v Desane Properties Pty Ltd [2018] NSWCA 196 at [203], [210], [211].

22. [102]

    Huajun lodged its development application with the Council on 1 November 2016 seeking consent to carry out development described as “One residential flat building, 70 apartments with 2 level basement carpark, demolition of 3 x existing dwellings.” The development application specified the address of the land as “38-42 Leicester Avenue, Strathfield” and the title details as “Lot 8 DP 4072, Lot 1 DP 13637, Lot 1 DP 965698, Lot 5 DP 667462”.

23. [103]

    The development application was accompanied by a Statement of Environmental Effects (“SEE”) by Elton Consulting dated 28 October 2016. The SEE similarly described the development and the land.

24. [104]

    The SEE addressed access to the development. The development proposed access from Leicester Avenue, which is a busy, classified road. The SEE recorded that Canada Bay Local Environmental Plan 2013 (“LEP”) and Strathfield Triangle Development Control Plan (“DCP”) envisaged that the property to the south of the development site (Al Maha’s land) would be acquired by the Council to facilitate a pedestrian link and be converted to open space. The DCP envisaged that vehicular access to the development site would be provided from Hilts Road (which would be extended as part of the works to create the open space) rather than from Leicester Avenue. Delivery of the preferred outcomes would require the Council to acquire Al Maha’s land (p 20 of the SEE). The SEE noted that the Council had been unsuccessful in acquiring Al Maha’s land by negotiation and had commenced the process to compulsorily acquire the land (pp 13 and 20 of the SEE).

25. [105]

    The SEE addressed cl 101(2) of State Environmental Planning Policy (Infrastructure) 2007 (“Infrastructure SEPP”), which provides that the consent authority must not grant consent to development on land that has a frontage to a classified road (Leicester Avenue is a classified road) unless it is satisfied that specified standards are satisfied. One of the specified standards is that “where practicable, vehicular access to the land is provided by a road other than the classified road” (cl 101(2)(a) of the Infrastructure SEPP).

26. [106]

    The SEE stated:

27. [107]

    On 2 May 2017, Huajun lodged its appeal to the Land and Environment Court against the deemed refusal of the development application. On 24 May 2017, the Council filed its statement of facts and contentions, identifying the issues in dispute. Contention 1 was that:

28. [108]

    Contention 6 concerned the public interest. The contention noted that one of the concerns raised in the public submissions objecting to the proposed development was that: “The proposal does not provide vehicular and pedestrian access from the rear off Hilts Road as required by the Strathfield Triangle Development Control Plan”.

29. [109]

    On 30 May 2017, the Court arranged a conciliation conference under s 34 of the Court Act to be held on 24 August 2017. The conciliation conference took place on 24 August 2017. The parties were unable to reach agreement and the conciliation conference was terminated. On 7 September 2017, the Court fixed the proceedings for hearing on 13 to 15 February 2018.

30. [110]

    On 6 November 2017, Huajun filed a Notice of Motion and supporting affidavit seeking the Court’s leave to amend its application and rely on amended plans and reports. Amongst the amended plans on which Huajun sought leave to rely was the Traffic Access Plan (DA2 Plan-Traffic Access Plan, DA2.11D-Rev 3, 15 September 2017) and section DD (DA3 Section-Section DD, DA3.04-Rev 9, 15 September 2017). The amended Traffic Access Plan showed entry to the basement of the proposed residential flat building off a driveway from an extension of Hilts Road. The Traffic Access Plan bore a description “Plan – Potential Future Access” and the extension of Hilts Road where it turns south away from Huajun’s development site had a description “Future Road”. The plan of Section DD was a section near the southern boundary that effectively presented the southern elevation of the building. It showed “Future Basement Entry” at the location where the driveway from Hilts Road would enter the basement of the building.

31. [111]

    The application for leave to rely on amended plans was accompanied by a letter dated 15 September 2017 from Huajun’s architects explaining the design changes. The letter explained that “the main amendments to the development proposal design” include “Future Potential Vehicular Access off Hilts Road has been demonstrated”.

32. [112]

    One of the reports on which Huajun sought leave to rely was a report by its traffic consultant, Transport and Traffic Planning Associates, entitled “Assessment of Traffic and Parking Implications”, dated “October 2017 (Rev C)”. The report stated in the section on the revised development scheme (p 3):

33. [113]

    The report stated in the section on access (p 8):

34. [114]

    The traffic report included a copy of the Traffic Access Plan on which leave was sought to rely.

35. [115]

    On 14 November 2017, the Court granted leave to Huajun to rely on the amended plans and reports.

36. [116]

    In response to Huajun’s amendment of its application, the Council filed an amended statement of facts and contentions on 18 December 2017. In the statement of facts, the Council recorded that:

37. [117]

    In the statement of contentions, the Council maintained contention 1 that:

38. [118]

    The Council changed, however, the particulars to contention 1 to say in part:

39. [119]

    The Council maintained contention 6 concerning the public interest, including that “The proposal does not provide vehicular and pedestrian access from the rear of Hilts Road as required by the STDCP”. The Council added contention 7 that “Insufficient information and detail has been included with the proposal to fully assess the development”. The Council particularised this contention, one particular being how waste collection vehicles will service the development from Hilts Road (particular f).

40. [120]

    The Court had directed that the parties’ respective town planners and traffic consultants jointly confer and report to the Court. The town planners’ joint report was filed on 19 January 2018. The planners stated that points in agreement were:

41. [121]

    The points in disagreement concerned providing permanent access from Hilts Road. The Council’s town planner considered that temporary access from the classified main road of Leicester Avenue was not appropriate or necessary and that access from Hilts Road should be the only point of vehicular access. Huajun’s planners stated that the proposed Hilts Road vehicular access option was preferred but it was subject to the Council’s acquisition of 36 Leicester Avenue (Al Maha’s land). Huajun’s planners supported the proposal to provide temporary vehicular access from Leicester Avenue and, if and when the Council acquired the adjoining land, implement access from Hilts Road and close off the access from Leicester Avenue and used the space for another purpose such as to provide a further two bedroom unit in the space.

42. [122]

    The parties’ traffic consultants filed their report on 8 February 2018. Huajun’s traffic consultant noted that the Council had resolved on 5 December 2017 to compulsorily acquire the adjoining property (Al Maha’s land). This action would enable the site development to achieve vehicular access on Hilts Road and, depending on the timing of the Council’s action, the provision of temporary vehicular access on Leicester Avenue might not be necessary or might only be needed for a short period. The provision of vehicular access on Hilts Road would not be reliant on the Council constructing the proposed extension of Hilts Road as the access can be constructed by Huajun immediately after the Council acquires the adjoining property by simply providing a driveway connecting to the existing section of roadway in accordance with the DCP diagram.

43. [123]

    Huajun’s traffic consultant clarified the proposed arrangement of the permanent vehicular access on Hilts Road (as depicted on DA 2.11D, the Traffic Access Plan of 15 September 2017) in a new concept plan (“Concept Sketch A ‘Vehicle Access’”) showing ramp grades, closure of the temporary ramp to Leicester Avenue and treatment of the kerb line in Hilts Road (a normal width driveway). The Concept Sketch A was attached to the joint report.

44. [124]

    The Council’s traffic consultant noted and agreed in principle with Huajun’s traffic consultant’s comments about providing permanent vehicular access from Hilts Road, subject to detailed plans of the proposed permanent vehicular access being provided. The Council’s traffic consultant expressed concern that Concept Sketch A indicates an excessive area of public land to be used for the purpose of facilitating vehicular access to the development site.

45. [125]

    The hearing of the proceedings commenced on 13 February 2018 before two Commissioners, beginning on-site in the morning and resuming in court in the afternoon. The parties requested that the hearing be adjourned to the following morning in order to allow the parties’ traffic consultants and legal representatives to confer. The Commissioners adjourned the hearing as requested. The parties then requested the Assistant Registrar, and the Assistant Registrar agreed, to arrange a second conciliation under s 34 of the Court Act at 10am on 15 February 2018. The Assistant Registrar further adjourned the hearing of the proceeding to 3pm on 15 February 2018 after the conciliation conference.

46. [126]

    At the second conciliation conference, the parties negotiated with a view to reaching agreement as to the terms of a decision in the proceedings that would be acceptable to them. After negotiation, the conciliation conference was adjourned and the parties were directed to file an agreement under s 34(3) of the Court Act by 4pm on 19 February 2018 otherwise the conciliation conference would be terminated and the hearing would recommence on 20 February 2018.

47. [127]

    On 20 February 2018, the parties filed in court an agreement under s 34(3) of the Court Act as to the terms of a decision in the proceedings that would be acceptable to the parties (“the s 34 agreement”). The terms of the s 34 agreement were recorded in paragraph 2:

48. [128]

    The parties’ s 34 agreement recorded in paragraph 3 that:

49. [129]

    The s 34 agreement annexed a bundle of plans and conditions of consent. The annexed plans included a further amended Traffic Access Plan (DA2 Plan DA2.11D Rev 12, 14.02.18). This Traffic Access Plan no longer bore the description “Plan – Potential Future” as had the Traffic Access Plan dated 15 September 2017. The configuration of the driveway from Hilts Road was also different. Amongst other differences, it occupied a smaller area of the adjoining land than had the driveway in the earlier plan.

50. [130]

    The plan of Section DD (DA3 Section, DA3.04 Rev 10, 14.02.18) showed the same “Future Basement Entry” as had the Section DD plan dated 15 September 2017.

51. [131]

    The annexed plans also included two versions of the Ground Floor Plan. The first was “Ground Floor Plan – With Temporary Access Ramp” (DA2 Plan, DA2.01C Rev 16, 13.02.18) which showed the temporary access ramp from Leicester Avenue to the basement. The second was “Ground Floor Plan” (DA2.01 Rev 2, 14.02.18) which showed a new three bedroom apartment, as well as a substation and sprinkler valve room, in the location of the temporary access ramp from Leicester Avenue into the basement. This three bedroom apartment was the extra apartment added to the 62 apartments with temporary access to Leicester Avenue in order to create the 63 apartments with permanent access to Hilts Road.

52. [132]

    This change in the building from having the temporary access ramp to having the three bedroom apartment was also shown in two plans depicting the street view from Leicester Avenue. The first was “Street View – Temporary Access Ramp” (DA 6 3D, DA6.02 Rev 2, 14.02.18) and the second was “Street View – 3 Bed” (DA 6 3D, DA6.02B Rev 1, 14.02.18).

53. [133]

    The conditions of consent annexed to the s 34 agreement described the development that the parties requested the Court to approve. The consent was to be a deferred commencement consent. One of the deferred commencement conditions in Schedule A of the consent was that the applicant, Huajun, provide to the satisfaction of the Council:

54. [134]

    This deferred commencement condition sought the details that the Council had contended were lacking in particular (c) to contention 1 of the Amended Statement of Facts and Contentions in order to demonstrate driveway and ramp compliance for the permanent access to Hilts Road.

55. [135]

    The deferred commencement condition required the applicant to satisfy the Council of the requirements within 12 months of the date of the consent. Upon satisfaction of the deferred commencement conditions, the consent would become operative, subject to the conditions in Schedule B of the consent.

56. [136]

    Condition 1 in Schedule B required that the development be carried out substantially in accordance with the plans and documentation listed in the table in Condition 1. The plans listed included the further amended plans annexed to the s 34 agreement, referred to earlier, of the Traffic Access Plan dated 14 February 2018, Section DD dated 14 February 2018, Ground Floor Plan – With Temporary Access Ramp dated 13 February 2018, Ground Floor Plan dated 14 February 2018, Street View – Temporary Access Ramp dated 14 February 2018 and Street View – 3 Bed dated 14 February 2018.

57. [137]

    Condition 2 required construction to be within the boundaries of the development site, other than the driveways that would be constructed on adjoining land. Condition 2 provided:

58. [138]

    Two conditions dealt with the payment of damage deposits with respect to the works on Leicester Avenue and the works to install the driveway connection to Hilts Road. With respect to the Leicester Avenue works, condition 30 required the applicant to pay a damage deposit of $50,000 prior to the issue of the construction certificate. The damage deposit “shall be refunded upon completion of all works, except for the temporary access decommissioning works (those decommissioning works include the construction of the Hilts Road permanent access), following the issue of any Occupation Certificate (see condition 116).”

59. [139]

    With respect to the works to install the driveway connection to Hilts Road, close the Leicester Avenue entrance and construct an apartment in the location of the Leicester Avenue driveway, condition 116 required the applicant to pay a damage deposit of $50,000 prior to the issue of the construction certificate for those works. The damage deposit is to be refunded after issue of a final occupation certificate.

60. [140]

    Condition 115 dealt with the decommissioning of the temporary access ramp to Leicester Avenue and the construction of the permanent access to Hilts Road. Condition 115 provided:

61. [141]

    Condition 121 addressed waste collection via Hilts Road. The condition provided:

62. [142]

    On 26 February 2018, Commissioner Smithson made orders in accordance with the terms of the parties’ s 34 agreement that had been filed with the Court. The first order was that:

63. [143]

    The “attached conditions” were the conditions in annexure A to the Commissioner’s orders, which were the same conditions that were annexed to the parties’ s 34 agreement filed with the Court. The plans were those further amended plans referred to earlier showing the temporary access to Leicester Avenue and the permanent access to Hilts Road.

64. [144]

    By this order of the Commissioner, Huajun’s development application was amended to seek consent for the carrying out of the development described, on the land shown, in the further amended plans and conditions of consent.

65. [145]

    The third order of the Commissioner was to grant consent to the development application, as had been further amended by leave of the Court. Order 3 was:

66. [146]

    The orders of the Court annexed the conditions in annexure ‘A’, notwithstanding that the third order of the Commissioner said that the conditions were set out in Annexure A “to this agreement”. The Commissioner published the orders in a short, four paragraph judgment: Huajun Investments Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1087.

67. [147]

    Al Maha submitted that this chronology of events clearly establishes that Huajun applied for and the Court granted leave to amend the development application and plans for the proposed development in order to carry out works on Al Maha’s land, being the construction of the driveway connection to Hilts Road. The further amended plans, on which Huajun was granted leave to rely and to which the Commissioner granted development consent, showed a two-step process for providing access to the residential flat building: first, temporary access to Leicester Avenue and, secondly, the driveway connection to provide permanent access to Hilts Road. The development consent requires the applicant to carry out the development in accordance with these further amended plans and the conditions of consent, and these require the construction of permanent access to Hilts Road, once the factual event in condition 115 occurs.

68. [148]

    Al Maha contended, therefore, that the installation of the driveway connection to Hilts Road over Al Maha’s land is part of the development the subject of Huajun’s development application and part of the development authorised by the development consent. This part of the development is to be carried out on Al Maha’s land. Al Maha’s land is, therefore, part of the land to which the development application relates and on which the development is to be carried out.

69. [149]

    Huajun contested that Al Maha’s land was part of the land to which Huajun’s development application relates. Huajun referred to the addresses and formal particulars of title of the land stated in the development application form as lodged. The addresses and formal particulars of title do not include Al Maha’s land. Huajun did not seek to amend the addresses or formal particulars of title of the land stated in the development application in its subsequent applications to amend its development application. Huajun referred to the third order of the terms of the s 34 agreement and of the orders of the Commissioner. The addresses and formal particulars of title of the land in this third order refer only to Huajun’s land, not Al Maha’s land.

70. [150]

    Huajun referred to certain statements in the further amended plans that access from Hilts Road is for the “future”. Huajun referred to the Section DD plan which shows the entrance from Hilts Road to the basement as “future basement entry” and to the Traffic Access Plan that described the southern extension of Hilts Road leading away from the development site as “future road”. Huajun submitted that the construction of the driveway access to Hilts Road is only to be undertaken once the extension of Hilts Road to the boundary of the development site becomes available. By that time, the Council would have acquired Al Maha’s land. The land would then be owned by the Council and not Al Maha. Hence, the works to install the driveway connection to Hilts Road would be on land owned by the Council, not Al Maha.

71. [151]

    I find that the land on which the further amended development is to be carried out, and the land to which the further amended development application relates, includes Al Maha’s land of 36 Leicester Avenue. Through the s 34 agreement process, Huajun applied for and the Court granted leave to Huajun to further amend its development application and the plans for the development that Huajun sought consent to carry out.

72. [152]

    Although Huajun did not apply formally to the Court, by notice of motion, for leave to further amend its development application and to be able to rely on the further amended plans and reports, as Huajun had done in November 2017 in its earlier application to amend the development application, Huajun nevertheless did apply for leave to further amend its development application through the s 34 agreement process. One of the terms of the s 34 agreement reached between Huajun and the Council was that Huajun should apply for and the Court should grant leave to Huajun “to further amend its application, and the plans filed in Court on 6 November 2017, in accordance with the schedule of plans included in the attached conditions at Condition 1” (in paragraph 2(a) of the s 34 agreement).

73. [153]

    Another term of the s 34 agreement in paragraph 2(d) was that Huajun should pay the Council’s costs in the sum of $5,000 pursuant to s 97B of the EPA Act. Section 97B(2) at the time provided that:

74. [154]

    The fact that the parties agreed that the Court should make an order for costs under s 97B corroborates that the Court, by making orders in terms of the parties’ s 34 agreement, allowed Huajun to file an amended application for development consent.

75. [155]

    Paragraph 3 of the s 34 agreement was that “the parties request the Court to dispose of the proceedings in accordance with the terms of the agreement set out in paragraph 2.”

76. [156]

    Huajun’s further amended application involved changing the development for which Huajun sought consent. The further amended development was described in the terms of the s 34 agreement (paragraph 2(c)) to be “the demolition of existing dwellings and construction of an eight (8) storey residential flat building comprising three (3) basement parking levels, and sixty two residential apartments (62) with temporary access to Leicester Avenue, and sixty three (63) residential apartments with permanent access to Hilts Road, over Lot 8 in DP 4072 and Lot 1 in DP 136337, No 38 Leicester Avenue, Lot 1 in DP 965698, No 40 Leicester Avenue, and Lot 5 in DP 667462, No 42 Leicester Avenue, Strathfield…”

77. [157]

    The further amended development therefore involved two stages: first, the construction of a residential flat building with sixty two residential apartments with temporary access to Leicester Avenue and then the construction of the permanent access to Hilts Road, closing of the temporary access to Leicester Avenue and the construction of the sixty third residential apartment in the location of the Leicester Avenue driveway.

78. [158]

    This further amended development was depicted in the further amended plans which were listed in the schedule of plans included in condition 1 of the conditions attached to the s 34 agreement, on which Huajun sought and the Court granted leave to rely.

79. [159]

    The Traffic Access Plan dated 14 February 2018, unlike the earlier plan of 15 September 2017, is not described as being “Plan – Potential Future”, but rather is described as the “Traffic Access Plan” for the development. This plan shows the driveway connection to the extension of Hilts Road crossing the land at 36 Leicester Avenue (Al Maha’s land). The Section DD plan dated 14 February 2018 shows the southern elevation of the building with the entrance to the basement from Hilts Road marked as “Future Basement Entry”. The important point is that southern elevation shows the entry to the basement from Hilts Road. This is part of the building to be erected. The adjective “future” does not convey uncertainty but rather refers to the fact that this entry to the basement will be constructed in the second stage of the development. The entry to the basement will provide the permanent access, once the temporary access to Leicester Avenue is decommissioned.

80. [160]

    The two ground floor plans dated 13 and 14 February 2018 show the two-stage process for providing access to the development. The Ground Floor Plan With Temporary Access Ramp shows the temporary access to the basement from Leicester Avenue. The Ground Floor Plan shows the development after the decommissioning of the temporary access ramp with the three bedroom apartment in the location of the temporary access ramp. The two plans showing the street view from Leicester Avenue also show the two-stage process for providing access to the building. Street View – Temporary Access Ramp shows the temporary access ramp from Leicester Avenue to the basement. Street View – 3 Bed shows the building after decommissioning of the temporary access ramp with the three bedroom apartment in the location of the temporary access ramp.

81. [161]

    The further amended development was also described in the conditions of consent that were attached to the s 34 agreement. These conditions of consent reflect the parties’ agreement as to the development for which consent was sought and how and when that development is to be carried out. Particular conditions regulate the construction of the driveway connection to provide permanent access to Hilts Road. These conditions are the product of the negotiated s 34 agreement. It is to be recalled that the Council had contended that consent should not be granted to the development as originally proposed. One of the Council’s concerns was that the original development application proposed access to the classified road of Leicester Avenue, not to Hilts Road. The chronology of events given earlier establishes that Huajun was able to overcome the Council’s concerns about access by proposing a two-stage process for providing access: first, temporary access to Leicester Avenue and, secondly, permanent access to Hilts Road. Huajun further amended its plans to reflect this two-stage process for access and the parties agreed on conditions of consent that would implement this two-stage process. The important conditions of consent have been identified earlier.

82. [162]

    Deferred commencement conditions 1(a) and (d) require the submission to the Council of drawings and details of the works for the construction of the driveway off Hilts Road. If the development for which consent was sought by Huajun and granted by the Council did not include the construction of the driveway off Hilts Road, a deferred commencement condition requiring the submission of drawings and details for the construction of the driveway would be outside power as it would not relate to the development that was the subject of the development application and the development consent.

83. [163]

    Condition 115 of the consent, once it becomes operative, expressly requires “the permanent access to Hilts Road to be constructed” after the Council has given the notification stated in the condition “that the portion of the Council’s proposed rear lane adjacent to and part of No 36 Leicester Avenue [being Al Maha’s land] (end of Hilts Lane) has been opened and constructed.”

84. [164]

    The condition secondly requires, within 3 months of the Council’s notification, that a construction certificate application and s 138 Roads Act application be lodged “for the works to construct the driveway crossing to Hilts Road and decommission the Leicester Avenue temporary access” in accordance with the approved plans. Those plans include the amended Traffic Access Plan showing the driveway access to Hilts Road and the basement entry from that driveway.

85. [165]

    The condition thirdly requires that these works “with respect to the decommissioning of the Leicester Avenue temporary access driveway, and the construction of the Hilts Road access to the development” be physically completed within 12 months of the date of the construction certificate or Roads Act approval, whichever is the later.

86. [166]

    The condition fourthly requires that “temporary access” from Leicester Avenue be operational until “Hilts Road access” is operational.

87. [167]

    The condition finally requires the submission to the Council for approval of a public positive covenant pursuant to s 88E of the Conveyancing Act, which provides for “the completion of the works the subject of this condition”, and the registration of the public positive covenant on the title. The works the subject of the condition expressly include the driveway access to Hilts Road.

88. [168]

    Condition 115 is, therefore, clear in requiring the construction of the driveway access to Hilts Road. The Hilts Road access is part of the works approved by the development consent.

89. [169]

    Conditions 30 and 116 require the payment of damage deposits to cover the risk of damage to Council infrastructure. Condition 116 specifically requires a damage deposit with respect to “the works to install the driveway connection to Hilts Road, close the Leicester Avenue entrance and construct an apartment in the location of the Leicester Avenue driveway.” Evidently, a condition could not require the payment of a damage deposit for such works if the works were not approved by the development consent.

90. [170]

    Condition 121 requires that waste collection via Hilts Road be undertaken “once the permanent driveway solution off Hilts Road is operational.” Again, this condition would only be relevant if the driveway connection to Hilts Road and the basement with the garbage room accessed by that driveway were approved by the development consent.

91. [171]

    Accordingly, these conditions of consent, agreed to by the parties and imposed by the Commissioner in granting consent, approve the construction of the driveway connection to Hilts Road as part of the development for which consent was sought and granted.

92. [172]

    The land on which the driveway connection to Hilts Road is to be carried out includes the land at 36 Leicester Avenue owned by Al Maha. Al Maha’s land is “land on which the development is to be carried out” (see cl 1(1)(i) of Sch 1 of the Regulation). Huajun sought and the Court granted leave to amend its application for development consent to carry out the driveway connection to Hilts Road on Al Maha’s land. Al Maha’s land is, therefore, “land to which the development application relates” (cl 49(1) of the Regulation).

93. [173]

    The consent of Al Maha, as the owner of the land on which the development is to be carried out and to which the development application relates, was required to the development application. Al Maha’s consent to the application was not, however, obtained. Huajun and the Council requested the Commissioner to dispose of the proceedings in accordance with the terms of the s 34 agreement, which included allowing and granting consent to the further amended application for development consent, without first obtaining Al Maha’s consent to the further amended application.

94. [174]

    The Commissioner’s decision to grant consent to the further amended development application without the owner’s consent of Al Maha involved jurisdictional error. Owner’s consent was a jurisdictional prerequisite to the valid exercise of the power to grant consent to the further amended development application. Owner’s consent is not merely a requirement to be fulfilled before work is undertaken on any affected land. The Commissioner’s decision to grant consent was therefore outside power.

95. [175]

    Ground 1, the owner’s consent ground, is established. As explained in the section on the challenge to the slip rule decision, the attempt to avoid the need for owner’s consent by amending the Commissioner’s decision so that the consent did not approve the carrying out of development on Al Maha’s land was outside the power of the slip rule. The need for owner’s consent to the application therefore remained.

The cl 4.6 ground

1. [176]

   Huajun’s residential flat building was of a height that contravened the height development standard in cl 4.3 of the LEP. Clause 4.3(2) of the LEP provides that: “The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.” The Height of Buildings Map identifies a maximum building height of 25m for the subject site. From Leicester Avenue, the building will have a height ranging from 23.98m to 25.67m. Part of the building will therefore exceed the maximum building height by up to 0.67m.

2. [177]

   Clause 4.6(2) of the LEP enables development consent to be granted for development that contravenes a development standard imposed in the LEP, such as the height standard imposed in 4.3, but only if the conditions in cl 4.6(4) are satisfied. Clause 4.6(4) provides:

3. [178]

   Clause 4.6(3) specifies the matters that are required to be demonstrated by the written request:

4. [179]

   Clause 4.6(4) establishes two preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard. The first precondition in cl 4.6(4)(a) is that the consent authority is satisfied of the two matters in subparagraphs (i) and (ii). The second precondition in s 4.6(4)(b) is that the concurrence of the Secretary of the Department of Planning and Environment has been obtained. This case concerns the first precondition. I explained these preconditions in cl 4.6(4) in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118. It is helpful to recount part of the explanation concerning the first precondition in cl 4.6(4)(a):

5. [180]

   In this case, Huajun did make a written request under cl 4.6 of the LEP seeking to justify the contravention of the height development standard in cl 4.3 of the LEP. Huajun’s first cl 4.6 written request was dated 28 October 2016. After Huajun amended its development application, which lowered the height of the building, Huajun submitted a revised 4.6 written request dated November 2017. This revised written request sought to justify the contravention of the height standard by up to 0.67m.

6. [181]

   Al Maha contended that the Commissioner did not consider this written request (as required by cl 4.6(3) of the LEP) or form the necessary opinions of satisfaction (required under cl 4.6(4)(a) of the LEP) before granting development consent to Huajun’s development that contravenes the height development standard in cl 4.3 of the LEP. Al Maha submitted that neither the Commissioner’s reasons for judgment (in the first three paragraphs) nor the Commissioner’s orders (in the fourth paragraph) reveal that the Commissioner formed the necessary opinions under cl 4.6(4) so as to enliven the power to grant development consent.

7. [182]

   Al Maha submitted that the Commissioner was obliged to give reasons stating at least that the Commissioner had formed the necessary opinions of satisfaction under cl 4.6(4). The Commissioner’s failure to give such reasons supports drawing the inference that the Commissioner did not form the required opinions of satisfaction.

8. [183]

   Al Maha submitted that unless and until the Commissioner formed the necessary opinions under cl 4.6(4), the Commissioner could not exercise the power to grant consent to the development application for development that contravenes the height development standard. Notwithstanding the parties’ s 34 agreement requesting the Commissioner to make a decision granting consent to the development that contravened the height development standard, unless the Commissioner formed the necessary opinions of satisfaction under cl 4.6(4), that decision to grant consent was not a decision that could be made in the proper exercise of the Court’s functions. The Commissioner was thereby precluded from granting consent to the development application.

9. [184]

   Huajun contested this conclusion that the Commissioner’s decision to grant consent to the development application involved jurisdictional error, for both factual and legal reasons.

10. [185]

    Factually, Huajun submitted that the onus was on Al Maha to establish that the Commissioner did not form the necessary opinions of satisfaction under cl 4.6(4) before exercising the power to grant consent to the development application. Huajun submitted that Al Maha has not discharged this onus. The Commissioner stated in paragraph 1 of the judgment that:

11. [186]

    Huajun submitted that the Commissioner is here stating that she was satisfied that she had jurisdiction to make the decision, agreed to by the parties, to grant development consent to the development application. Insofar as cl 4.6(4) sets a jurisdictional precondition that must be satisfied before granting consent, the Commissioner should be taken to have been satisfied as to the matters in cl 4.6(4) so as to be able to grant development consent.

12. [187]

    Huajun also submitted that the Commissioner must have been aware of the cl 4.6 written request. The joint town planning experts report accepted that the cl 4.6 written request had justified variation of the height development standard. The joint town planning experts report was tendered at the hearing of the proceedings before the Commissioner (as Exhibit 3) only two days before the conciliation conference was held. The inference should be drawn that the Commissioner considered the cl 4.6 written request (as required under s 34(3)) and formed the necessary opinions of satisfaction (as required under cl 4.6(4)).

13. [188]

    Huajun noted that the only obligation under s 34(3)(b) of the Court Act is to set out in writing the terms of the decision and not to give reasons for the decision. Hence, no inference should be drawn from the absence of reasons concerning cl 4.6 of the LEP.

14. [189]

    Huajun submitted alternatively that the necessary opinions of satisfaction under cl 4.6(4) could be formed by the Council, rather than the Commissioner, as the original consent authority. Huajun submitted that the Council must be taken to have been satisfied of the matters under cl 4.6(4) because it agreed, by the s 34 agreement, to the Commissioner granting development consent to the development that contravened the height development standard.

15. [190]

    Legally, Huajun submitted in oral argument, that the obligation in s 34(3) for the Commissioner to dispose of the proceedings in accordance with the decision that the parties have agreed should be made overrides the jurisdictional bar in cl 4.6(4) of the LEP to granting consent to development that contravenes a development standard unless the Commissioner formed the necessary opinions of satisfaction. Huajun submitted that the Commissioner was not required by s 34(3) of the Court Act to be satisfied of the matters in cl 4.6(4) of the LEP before being obliged to grant consent to the development application in accordance with the parties’ agreement.

16. [191]

    I find that the Commissioner did fail to form the necessary opinions of satisfaction under cl 4.6(4) of the LEP and, as a consequence, the Commissioner lacked power to grant consent to the development application. In these circumstances, the decision to grant consent was a decision that the Commissioner could not make in the proper exercise of the Court’s functions.

17. [192]

    Although the onus is on Al Maha as challenger to establish that the Commissioner did not form the opinions of satisfaction under cl 4.6(4) necessary to enliven the power to grant consent to the development, I find that it has discharged this onus.

18. [193]

    Neither the Commissioner’s judgment nor her orders reveal that the Commissioner considered cl 4.6 or formed the necessary opinions of satisfaction under cl 4.6(4) of the LEP.

19. [194]

    The Commissioner’s statement in paragraph 1 of the judgment is a formulaic recitation of the statutory “test” in s 34(3) that the decision on which the parties had reached agreement was a decision that the Court could have made in the proper exercise of its functions. It reveals nothing about what the Commissioner considered were the functions to be exercised by her in making the decision or what the proper exercise of the functions involved, or indeed whether the Commissioner even addressed these questions. Without the Commissioner disclosing in the judgment that she had considered cl 4.6 and formed the required opinions of satisfaction under cl 4.6(4), the inference cannot be drawn from the formulaic recitation of the test in s 34(3) that the Commissioner did form the required opinions of satisfaction under cl 4.6(4) of the LEP.

20. [195]

    The orders made by the Commissioner are equally silent about whether the Commissioner formed the required opinions of satisfaction under cl 4.6(4) of the LEP so as to enliven the power to make the decision to grant consent to the development that contravened the height development standard in cl 4.3 of the LEP.

21. [196]

    The Commissioner’s failure to record in writing in either her judgment or orders that she had considered cl 4.6 of the LEP and formed the necessary opinions of satisfaction under cl 4.6(4) of the LEP supports drawing the inference that she did not in fact form the necessary opinions of satisfaction. This inference can be more readily drawn if there is an obligation on a Commissioner to give reasons for the Commissioner being satisfied under s 34(3) of the Court Act that the decision, in respect of which the parties have reached agreement, is a decision that the Court could have made in the proper exercise of its functions. In this case, one of the jurisdictional prerequisites to the exercise of power under s 4.16 of the EPA Act to grant consent to the development application was for the Commissioner to form the necessary opinions of satisfaction under cl 4.6 of the LEP.

22. [197]

    In express terms, s 34 of the Court Act only requires a Commissioner to give reasons for a decision disposing of the proceedings following a hearing under s 34(4)(b) of the Court Act: see s 34(5) of the Court Act. In contrast, the Court Act only requires the Commissioner, when disposing of the proceedings in accordance with the parties’ decision under s 34(3)(a), to set out in writing the terms of the decision. By these express provisions, the Court Act limits the duty to give reasons for a decision made by the Commissioner to a decision made by adjudication (under s 34(4)(b)) and not at or after conciliation (under s 34(3)(a)).

23. [198]

    This express statutory limitation on the obligation to give reasons for a decision applies, however, only to the ultimate decision to dispose of the proceedings. It does not apply to the separate check on the jurisdiction of the Court to dispose of the proceedings in accordance with the parties’ decision under s 34(3) of the Court Act. The check on jurisdiction, that the decision to dispose of the proceedings is a decision that could have been made in the proper exercise of the Court’s functions, is a distinct and separate act from making the ultimate decision to dispose of the proceedings.

24. [199]

    The duty to give reasons is “an incident of the judicial process” (Housing Commissioner (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270), “subject to the qualification that it is a normal but not universal incident” (Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 667; [1986] HCA 7). The giving of reasons is a necessary incident of the judicial process because it enables the basis of the decision to be seen and understood: Soulemezis v Dudley (Holdings) Pty Ltd at 279. “As an incident of the judicial office, the judge is expected by the community to demonstrate the lawfulness of what he or she has done”: see North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442.

25. [200]

    The particular check on the jurisdiction of the Court to make a decision under s 34(3) disposing of the proceedings in accordance with the parties’ decision is an express part of the function being exercised by the Commissioner under s 34 of the Court Act. The Commissioner is allocated by the Chief Judge under s 30(1)(b) of the Court Act to exercise the function of the Court under s 34 of the Court Act. Any decision made by the Commissioner under s 34 is taken to be a decision of the Court (s 34(8) of the Court Act). The decision of the Court is final and conclusive (s 56 of the Court Act). Any decision of a Commissioner under s 34 is thus made within the institutional structure of the Court: see Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 at [36].

26. [201]

    These factors support the existence of a specific obligation on a Commissioner to give reasons with respect to the check on the jurisdiction of the Court, which is required by s 34(3) of the Court Act, to make a decision disposing of the proceedings in accordance with the parties’ decision.

27. [202]

    The content and detail of the reasons that will need to be given depends on the particular decision in respect of which there is an obligation to give reasons. For the particular obligation to give reasons that the decision is one that the Court could make in the proper exercise of its functions under s 34(3) of the Court Act, the content of the reasons will be limited by reference to that particular check on jurisdiction and will not extend to the overall decision to dispose of the proceedings in accordance with the parties’ decision. The detail of the reasons can be brief, identifying any jurisdictional prerequisite to the exercise of the function and indicating why the prerequisite is satisfied and the decision is one that the Court could have made in the proper exercise of its functions.

28. [203]

    In this case, the Commissioner did not identify any jurisdictional prerequisite, including cl 4.6 of the LEP, or indicate why the prerequisite was satisfied, such as by the Commissioner forming the necessary opinions of satisfaction under cl 4.6(4) of the LEP. The inference should be drawn from the absence of reasons that the Commissioner did not form the necessary opinions of satisfaction under cl 4.6(4) of the LEP.

29. [204]

    The Commissioner therefore lacked power to grant consent to the development application and the decision that the Commissioner made to grant consent was not a decision that the Court could have made in the proper exercise of its functions.

30. [205]

    I reject Huajun’s alternative submission that it is sufficient if the Council, rather than the Commissioner, formed the required opinions of satisfaction under cl 4.6(4). On the appeal to the Court, the Commissioner is exercising the function of determining the development application by granting consent. Hence, the Commissioner, and not the Council, must form the opinions of satisfaction under cl 4.6(4) that the jurisdictional preconditions to the exercise of that function have been met. Only by the Commissioner forming the required opinions of satisfaction is the power to grant consent to development that contravenes a development standard enlivened.

31. [206]

    I also reject Huajun’s legal argument that the obligation in s 34(3) of the Court Act to dispose of the proceedings in accordance with the parties’ decision that consent be granted overrides the proscription in cl 4.6(4) against granting consent unless the jurisdictional preconditions in cl 4.6(4) are satisfied. That argument is inconsistent with the terms of s 34(3), which expressly requires that the decision be one that the Court could have made in the proper exercise of its functions. If the parties’ decision does not meet this requirement, the Commissioner is not obliged to dispose of the proceedings in accordance with the parties’ decision. In this case, unless and until the Commissioner formed the required opinions of satisfaction under cl 4.6(4), the Commissioner had no power to grant consent to the development that contravened the height development standard. The parties’ decision in the s 34 agreement, for the grant of consent to the development, could only be a proper exercise of the power to grant consent if the Commissioner first formed the required opinions of satisfaction under cl 4.6(4).

32. [207]

    Ground 3, the cl 4.6 ground, is established.

The irrationality ground

1. [208]

   Al Maha contended that the Commissioner granted development consent to the development application that failed to demonstrate how access from Hilts Road to the basement of the residential flat building would be achieved. The further amended plans, approved by the Commissioner, show the entrance to the basement carpark from Hilts Road, but not how access and circulation within the levels of the basement car park will operate. The plans are inconsistent with one another. This is a product of some of the plans still showing the basement carpark with the temporary access from Leicester Avenue, but other plans showing the permanent access from Hilts Road. The changes necessitated by amending the development to provide for permanent access from Hilts Road have not been made to all of the plans.

2. [209]

   In these circumstances, Al Maha contended that the decision to grant consent to the development application with these deficiencies was legally unreasonable and lacking in certainty and finality. Al Maha submitted that it could not have been a proper exercise of the Court’s functions to have granted a consent which would be liable to be set aside on the grounds of legal unreasonableness and/or uncertainty or lack of finality.

3. [210]

   Huajun contested that the Commissioner’s decision was legally unreasonable or lacking in certainty or finality. Huajun asserted that the development application and the plans were not deficient in describing access to the development. Huajun reiterated its argument that the development application, even as further amended, did not propose the construction of the driveway connection to Hilts Road and hence permanent access to the basement carpark from Hilts Road, but rather the plans showing the driveway connection to and the basement entry from Hilts Road were for the future and intended to give “indicative future access changes”.

4. [211]

   For the reasons I have given in relation to the owner’s consent ground, the development application, as further amended, did propose to provide permanent access by a driveway connection to Hilts Road and have a basement carpark entry from Hilts Road. I reject Huajun’s argument that the plans merely provided “indicative future access changes”. I agree with Al Maha that the plans, as further amended, are inconsistent and unclear in describing the internal access and circulation within the basement carpark. The changes agreed between the parties for providing access by a two stage process, first temporary access to Leicester Avenue and secondly permanent access to Hilts Road, have not been worked through in the further amended plans.

5. [212]

   The question is whether these inconsistencies and lack of clarity in the further amended plans accompanying the development application cause the decision of the Commissioner to grant consent to the development application to be a decision that could not be made in the proper exercise of the Court’s functions under s 34(3) of the Court Act. I do not consider that they did.

6. [213]

   The Commissioner was obliged under s 34(3)(a) of the Court Act to dispose of the proceedings in accordance with the parties’ decision (which was that consent should be granted to the development as described in the further amended plans), provided that the decision was one that the Court could have made in the proper exercise of its functions. As I have explained earlier, this proviso imposes a check on the jurisdiction of the Commissioner to dispose of the proceedings in accordance with the parties’ decision.

7. [214]

   The check on jurisdiction required by s 34(3) is a check on the power of the Commissioner to make a decision to dispose of the proceedings in accordance with the parties’ decision. The constraints on the exercise of this power of the Commissioner may derive from three sources. The primary source will be the statute which gives the power to be exercised by the Commissioner under s 34(3) of the Court Act. For example, the EPA Act and EPA Regulation give the power and regulate the exercise of the power to determine a development application. The Court Act regulates the exercise of the Court’s jurisdiction by the Commissioner, including who can exercise what jurisdiction or what function and how the jurisdiction or function is to be exercised (see, for example, ss 30, 33, 34, 34AA, 38 and 39 of the Court Act). The common law is another source, requiring the Commissioner to accord procedural fairness to the parties in exercising functions under s 34 of the Court Act where appropriate, such as when the Commissioner is determining whether the parties’ decision is one that the Court could have made in the proper exercise of the Court’s functions under s 34(3) or when determining the proceedings following a hearing under s 34(4)(b) of the Court Act.

8. [215]

   The Commissioner, in checking that the decision in respect of which the parties have reached agreement is a decision that the Court could have made in the proper exercise of its functions, would need to check that making that decision would not exceed these constraints on the exercise of the power.

9. [216]

   The purpose of the check on jurisdiction required by s 34(3) of the Court Act is to ensure that the Commissioner has jurisdiction to exercise the power in the first place. This case provides an illustration of the types of jurisdictional error for which s 34(3) requires the Commissioner to check. The power under s 4.16 of the EPA Act to grant consent to a development application is subject to the constraints that each owner of land to which the development application relates consents to the development application and that the Commissioner exercising the function of the consent authority form the required opinions of satisfaction under cl 4.6(4) of the LEP. The Commissioner was required to check that these constraints on the exercise of the power under s 4.16 of the EPA Act would be met in order for the Commissioner to have jurisdiction to dispose of the proceedings in accordance with the parties’ decision to grant consent to the development application.

10. [217]

    The check on jurisdiction required by s 34(3) will not usually require the Commissioner to check whether there will be an abuse of power if the power were to be exercised in a particular way. For example, the Commissioner would not be required, in determining the development application by the grant of consent, to take into consideration the relevant matters in s 4.15(1) of the EPA Act. The requirement to consider relevant matters is a condition on the exercise of the power to determine a development application, but it is not a condition to the exercise of the power in the first place. The check on jurisdiction required by s 34(3) is that the decision could have been made in the proper exercise of the relevant power, that is to say, that there is power to make the decision, not on how the power, if it can be exercised, should be exercised.

11. [218]

    In this case, Al Maha contended that the further amended plans accompanying the development application were inconsistent and unclear in describing the internal access and circulation within the basement carpark. Al Maha contended that the Commissioner’s decision to grant consent to the development application with these deficiencies lacked certainty and was legally unreasonable. The check on jurisdiction required by s 34(3) of the Court Act required the Commissioner to determine whether the development application with these deficiencies was a development application that answered that description under the EPA Act and EPA Regulation. This is because the power under s 4.16 of the EPA Act is to determine “a development application.”

12. [219]

    The EPA Act and EPA Regulation describe the requirements for the form and content of a development application, including the information to be included in the development application and the documents that must accompany the development application. The development application must also seek consent to carry out “development” as defined in s 1.4(1) of the EPA Act, which an environmental planning instrument provides may not be carried out except with development consent (see s 4.2(1) and s 4.9 of the EPA Act). The statutory prescriptions regarding the form and content of a development application and accompanying documents are intended to serve different purposes. Some prescriptions have as their purpose the provision of information for the identification of the development, including “its nature and style”, while other prescriptions have as their purpose the provision of information as to the likely impacts of the development, which will be relevant to the matters to be considered by the consent authority under s 4.15 of the EPA Act: see Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 at [33] and [34].

13. [220]

    The essentiality of the statutory prescriptions for development applications varies depending on the statutory prescription and the role it plays in the statutory scheme, the development for which consent is sought, including whether it is designated or State significant development, amongst other factors: see for example the considerations discussed in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [36]-[108]; Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81; [2006] NSWCA 339 at [65]-[90]; McGovern v Ku-ring-gai Council at [189]-[203].

14. [221]

    If a purported development application does not satisfy a statutory prescription that is essential, it will not answer the description of being a development application for the purposes of the EPA Act and the EPA Regulation and hence be a development application that the consent authority can determine under s 4.16 of the EPA Act. A purported exercise of the power under s 4.16 to determine a development application by the grant of consent will not be valid unless the decision constitutes a “consent” to the “development application”: see Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [13] and see Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737.

15. [222]

    Although I agree that the further amended plans describing the internal access and circulation within the basement carpark are inconsistent and unclear, I do not consider that these deficiencies in the plans caused the development application not to be a development application for the purposes of the EPA Act and the EPA Regulation or cause the development consent granted to that application not to be valid, by lacking certainty or being legally unreasonable. The issue is one of construction of the provisions of the EPA Act and the EPA Regulation regulating the making of a development application and the grant of consent to a development application as well as the application of those provisions to the circumstances of the case: Winn v Director General of National Parks and Wildlife at [12].

16. [223]

    I do not consider that the deficiencies in the further amended plans for the basement carpark are of such magnitude as to cause the development application not to comply with the essential statutory prescriptions for a development application. The development application still describes the development to be carried out, being the erection of a building and the subsequent use of the building, which is development that may not be carried out except with development consent. The fact that, if development is carried out in accordance with the further amended plans, the internal access and circulation in the basement will be significantly constrained does not cause the development described in the plans not to be “development” for the purposes of the EPA Act or the development application seeking consent for that development not to be a development application for the purposes of the EPA Act. As I noted earlier, Spigelman CJ held in Currey v Sutherland Shire Council at [35] that people are entitled to apply to a consent authority for whatever development they like, provided that it answers the description of being development that may not be carried out except with consent, and that “there is no relevant prohibition, express or implied, which impinges upon the application making process”.

17. [224]

    Only if the deficiencies in the description of the development in the development application, such as in the plans accompanying the development application, cause the development application to fail to meet some essential statutory prescription for making a development application, will the deficiencies cause the development application not to be a development application for the purposes of the EPA Act and EPA Regulation.

18. [225]

    The inconsistencies in the further amended plans for the basement carpark in this case do not cause the development application to lack such essential elements and hence not to be a development application for the purposes of the EPA Act and EPA Regulation.

19. [226]

    Accordingly, the Commissioner had power under s 4.16 of the EPA Act to determine the development application by granting consent to that application, notwithstanding the inconsistencies in the plans for the basement carpark. The inconsistencies in the further amended plans did not cause the Commissioner’s decision to grant consent to carry out the development described in the further amended plans to lack certainty or be legally unreasonable.

20. [227]

    Ground 2, the irrationality ground, is not established.

The conciliation conference ground

1. [228]

   Al Maha contended that the second conciliation conference, after which the Commissioner made the development consent decision, was invalidly constituted for two reasons. First, Al Maha contended that once the first conciliation conference had been terminated under s 34(4), and the proceedings were to be dealt with as a Court hearing matter under s 34C of the Court Act and that hearing had commenced, the Court could not exercise the power under s 34(1) of the Court Act to arrange another conciliation conference in the proceedings. Al Maha submitted:

2. [229]

   Secondly, Al Maha submitted that a conciliation conference can only be presided over by a single Commissioner, pursuant to s 34(2) of the Court Act, but the second conciliation conference was presided over by two Commissioners.

3. [230]

   Huajun contested both of these contentions. As to the first, Huajun submitted that the power under s 34(1) of the Court Act to arrange a conciliation conference is facultative and can be exercised from time to time. As to the second, Huajun submitted that only one Commissioner made the decision disposing of the proceedings in accordance with the parties’ decision under s 34(3) of the Court Act.

4. [231]

   I will deal with the factual question of who presided over the conciliation conference before the legal question of whether a second conciliation conference could be arranged.

5. [232]

   The Court had arranged a conciliation conference between the parties to the proceedings, with their consent, on two occasions. The first occasion was on 30 May 2017, when the Assistant Registrar arranged a conciliation conference on 24 August 2017. A single Commissioner, Commissioner Chilcott, was allocated to preside over the conference. As the parties were unable to reach agreement, the Commissioner terminated the conciliation conference on 24 August 2017, under s 34(4) of the Court Act.

6. [233]

   The second occasion was on 13 February 2018 when the Assistant Registrar arranged a conciliation conference on 15 February 2018. The proceedings had been listed for hearing on 13 to 15 February 2018. Under s 34C(1)(c)(i) of the Court Act, two Commissioners had been allocated to hear and dispose of the proceedings, Commissioner Smithson and Acting Commissioner Blakely. The hearing commenced before the two Commissioners on 13 February 2018. In the afternoon of 13 February 2018, the parties requested the Commissioners to adjourn the hearing to 10am on 14 February 2018 to allow the parties’ traffic experts and legal representatives an opportunity to confer. The Commissioners agreed to do so.

7. [234]

   The parties later approached the Assistant Registrar to request that she arrange a second conciliation conference. The Assistant Registrar agreed to do so, arranging a conciliation conference at 10am on 15 February 2018 and further adjourning the hearing of the proceedings to 3pm on 15 February 2018 after the conciliation conference.

8. [235]

   The evidence does not establish the Commissioner or Commissioners who was or were allocated to preside over the second conciliation conference. However, there is evidence as to the Commissioner who exercised the functions under s 34(3) of the Court Act.

9. [236]

   The Court file for the proceeding records that Commissioner Smithson and Acting Commissioner Blakely, who were the Commissioners who had been allocated to the hearing that commenced on 13 February 2018, made directions on 15 February 2018 that:

10. [237]

    It is not clear from this record on the Court file whether the directions made by the two Commissioners were made at the adjourned hearing of the proceedings at 3pm on 15 February 2018 or at the conciliation conference held beforehand on that day. The content of the directions supports the former, not the latter conclusion. The function of a Commissioner in presiding over a conciliation conference under s 34 of the Court Act is different from the function of a Commissioner who has been allocated to hear and dispose of proceedings under s 34C of the Court Act. A Commissioner exercising the function of presiding over a conciliation conference under s 34 could make directions as to the conduct of the conciliation conference but not to make directions for the conduct of the hearing of the proceedings, including directing that the adjourned hearing recommence at 4:15pm on 20 February 2018 and that the subpoena that had been returnable at the hearing be stood over to 4:15pm on 20 February 2018.

11. [238]

    After the conciliation conference was adjourned on 15 February 2018, only a single Commissioner, Commissioner Smithson, presided over the conciliation conference on later days. The Court file records Commissioner Smithson alone presiding on 20 February 2018, when she recorded on the Court file that “s 34 agreement filed in hard copy inc[luding] approved plans.”

12. [239]

    On 26 February 2018, Commissioner Smithson records on the court file “orders made as per agreement” and that these orders were made in chambers by her. The Commissioner’s judgment of 26 February 2018 records, in paragraph 1, that: “As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions…”. Commissioner Smithson alone made the orders on 26 February 2018 disposing of the proceedings, including granting consent to the development application.

13. [240]

    Based on the notations on the Court file and the judgment and the orders of Commissioner Smithson, I find that only Commissioner Smithson exercised the function of presiding over the conciliation conference, and more importantly, made the decision and orders disposing of the proceedings in accordance with the parties’ decision under s 34(3)(a) of the Court Act.

14. [241]

    I reject Al Maha’s contention that the Court had no power to arrange a second conciliation conference between the parties in the proceedings. The function under s 34(1) of the Court Act to arrange a conciliation conference is facultative and may be exercised from time to time: see s 48(1) of the Interpretation Act 1987. There is nothing in the terms of s 34 or any other provision of the Court Act (including s 34C), which indicates an intention to displace this capacity to exercise the function of arranging a conciliation conference from time to time.

15. [242]

    I reject Al Maha’s submissions that the statutory scheme precludes the Court arranging a conciliation conference once a hearing commences. The fact that a court hearing under s 34C proceeds on the basis that the proceedings have not been disposed of under s 34 (see s 34A(1)) does not indicate a legislative intention that the Court cannot arrange another conciliation conference to explore whether the parties can reach agreement to dispose of the proceedings otherwise than by the court hearing. The fact that under s 34(6) a conciliation conference should not be adjourned unless there is good reason to do so does not indicate that there is no power to arrange another conciliation conference after the first conciliation conference has been terminated. The fact that if a hearing is adjourned and a conciliation conference is held during the adjournment there may be a Commissioner exercising different functions, adjudicative in the hearing and conciliation in the conciliation conference, does not indicate a legislative intention that the Court does not have power to arrange another conciliation conference once the hearing has commenced. The functions of the Commissioner are different and are exercised at different times.

16. [243]

    The legislative history of the enactment and amendment of s 34 of the Court Act also supports this interpretation. As earlier explained, the function in s 34(1) to arrange a conciliation conference was originally a duty (the registrar “shall” arrange a conference). This might have supported an interpretation that only one conference could be arranged. However, the provision was amended to make the function a power (the Court “may” arrange a conference). A power is ordinarily able to be exercised from time to time. This conversion of the function under s 34(1) of the Court Act from a duty to a power therefore supports the interpretation that the Court, under s 34(1), can arrange more than one conciliation conference and at any time whilst proceedings are pending in Class 1, 2 or 3 of the Court’s jurisdiction.

17. [244]

    Ground 3A, the conciliation conference ground, is not established.

The challenge to the slip rule decision

1. [245]

   After Al Maha brought proceedings in the Supreme Court challenging the Commissioner’s development consent decision, the parties to the Land and Environment Court proceedings (Huajun and the Council) applied, by notice of motion filed 4 June 2018, for an order that:

2. [246]

   Annexure A was a marked up version of certain of the conditions of consent that had been approved by the Commissioner on 26 February 2018 showing the amendments sought. The amendments sought in Annexure A and at the hearing of the notice of motion included the following:

   1. (1)

      in the preamble to the consent, which stated that development for the described development is approved subject to the conditions below (this description remained the same), an extra paragraph was added stating:

   2. (2)

      in the table in Condition 1 of Schedule B, a new plan entitled “Indicative Future Access Changes”, being “Project AA RES 1603 Drawing No DA 2.11D (Revision 13)”, dated “05/06/2018”, was substituted for the approved “Traffic Access Plan”, being “Project AA RES 1603 Drawing No DA 2.11D (Revision 12)”, dated “14/02/2018”;

   3. (3)

      in condition 2, which required all approved construction, other than related driveway and kerb crossing works, to be constructed wholly within the boundaries of the premises, the words “other than related driveway and kerb crossing works” were deleted and a new paragraph was added saying:

   4. (4)

      In condition 115, which required the construction of the permanent access to Hilts Road and the decommissioning of the temporary access to Leicester Avenue, two new paragraphs were added at the beginning of the condition saying:

3. [247]

   Commissioner Smithson heard the notice of motion to amend the orders on 5 June 2018. The Commissioner recorded on the Court filed: “NOM (04/06) and orders made with consent of parties to amend agreement conditions and approved plans – final amendments to be filed (Slip Rule).”

4. [248]

   On 6 June 2018, the solicitor for Huajun, with the consent of the solicitor for the Council, wrote to Commissioner Smithson saying:

5. [249]

   The plan that was annexed was the Traffic Access Plan dated 14 February 2018 but amended in handwriting by changing the title from “Traffic Access Plan” to “Indicative Future Access Changes”, the revision of the plan from 12 to 13, and the date of the plan from 14 February 2018 to 5 June 2018, and by drawing a cloud around the driveway and Hilts Road on the plan to indicate amendment.

6. [250]

   On 7 June 2018, Commissioner Smithson made orders in chambers amending the orders of 26 February 2018 as sought by the parties. The Commissioner stated:

7. [251]

   On 7 June 2018, the Court gave written notice of the orders made by the Commissioner. The conditions of consent that were annexed to the orders had been amended as requested by the insertion of the additional paragraph in the preamble to the consent; the substitution of the plan entitled “Indicative Future Access Changes” dated 5 June 2018 for the Traffic Access Plan dated 14 February 2018 in the table in condition 1; making no change to condition 2; and changing condition 115 by inserting two new paragraphs at the start of the condition, changing the address of the land on which the Council would construct the rear lane from No 36 to No 38 Leicester Avenue and inserting the requirement to obtain development consent for construction of the driveway connection to Hilts Road.

8. [252]

   Al Maha challenged the slip rule decision on two grounds:

   1. (1)

      the amendments made by the Commissioner were outside the power to amend a judgment or order under rule 36.17 of the UCPR (“the slip rule ground”); and

   2. (2)

      Al Maha was denied procedural fairness by not being notified and given an opportunity to be heard before the Commissioner amended the orders under the slip rule.

9. [253]

   Huajun contested that the slip rule did not allow the amendments to the orders made by the Commissioner. Huajun also disputed that Al Maha had any entitlement to be notified of or heard on the application for amendment of the orders of the Court under the slip rule.

10. [254]

    For the reasons I will give shortly, Al Maha’s challenge to the slip rule decision on the slip rule ground is sufficient to warrant setting aside the Commissioner’s slip rule decision. For that reason and in light of what is said below as to discretion to grant relied, it is unnecessary to deal with Al Maha’s second ground of denial of procedural fairness.

11. [255]

    On the slip rule ground, Al Maha submitted that the power under the slip rule is contingent on there being “a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order” and the exercise of the power under the slip rule is to “correct the mistake or error”. Al Maha contended that the amendments made by the Commissioner to the conditions of consent and to approve an amended plan did not correct a “clerical mistake” or “an error arising from an accidental slip or omission”, but rather were substantive amendments to the conditions of consent and the approved plans.

12. [256]

    Al Maha submitted that the power to correct an error arising from accidental slip or omission directs attention to what the Court whose record is to be corrected did or intended to do, however “[i]t does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded” (Burrell v The Queen (2008) 238 CLR 218 at [21]; Achurch v The Queen (2014) 253 CLR 141 at [18]). Al Maha submitted that the application of the slip rule to correct an error would only be appropriate if the solution to the error does not involve controversy or depend on evaluative or discretionary judgment (Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc at [129], citing Storey & Keers Pty Ltd v Johnstone at 453). The slip rule cannot be used to “cloak the court with jurisdiction” which it otherwise would not have, or for the purpose of expanding the court’s jurisdiction (Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268 at [61], [67] and [113]).

13. [257]

    Al Maha submitted that the development consent granted by the Commissioner authorised the carrying out of development on Al Maha’s land, being the driveway connection to Hilts Road. The amendments purportedly made by the Commissioner under the slip rule were substantive amendments of the development consent so that the consent no longer authorised the carrying out of that development on Al Maha’s land. This effected a substantive amendment of the development to which consent was granted.

14. [258]

    Not only did this amendment change the actual development to be carried out, it changed how that development needed to be assessed and approved. Al Maha submitted that one of the relevant matters that the Commissioner, exercising the functions of the consent authority, was required to consider and to form the necessary opinion of satisfaction about concerned providing access to the development by a road other than a classified road (cl 101(2)(a) of the Infrastructure SEPP). Under cl 101(2)(a) of the Infrastructure SEPP, the consent authority, and the Commissioner exercising the functions of the consent authority, “is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome [‘vehicular access to the land is provided by a road other than the classified road’] will be achieved, where that desired outcome is practicable”: Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138 at [42]. This requirement is jurisdictional in the sense that the Commissioner had no power to grant consent to the development unless the Commissioner was satisfied that vehicular access to the land by a road other than the classified road of Leicester Avenue was not practicable.

15. [259]

    The development, as further amended, provided for permanent vehicular access to be from Hilts Road, which is a road other than the classified road of Leicester Avenue. The purported slip rule amendment, however, removed this provision of vehicular access from a road other than a classified road, and instead provided that permanent access be from the classified road of Leicester Avenue. This amendment necessitated a reconsideration of the development application and the precondition in cl 101(2)(a) of whether consent could be granted to the development with vehicular access from the classified road of Leicester Avenue and not from a road other than a classified road.

16. [260]

    Al Maha submitted that the amendment to condition 115 imposed a new requirement for development consent to be obtained for the construction of the driveway connection to Hilts Road. The consent granted by the Commissioner authorised the construction of the driveway connection to Hilts Road; no further development consent was required, but rather only a construction certificate and approval under s 138 of the Road Act were required. Condition 115 as amended by the slip rule decision imposed a new requirement to obtain development consent for the driveway connection to Hilts Road. This was a substantive change.

17. [261]

    Al Maha submitted that the purported slip rule amendment was substantive in another way in that it “cloaked the Court with jurisdiction”. As Al Maha had contended in the owner’s consent ground, the Court did not have jurisdiction to grant consent to the further amended development application to carry out development on Al Maha’s land in the absence of Al Maha’s consent as owner to that application. The proposed amendment under the slip rule was to modify the consent such that development on Al Maha’s land was no longer authorised by the consent, thereby removing the jurisdictional bar on granting consent in the absence of owner’s consent. This amendment was to give the Court jurisdiction it otherwise did not have.

18. [262]

    Al Maha submitted that the amendment to condition 1 and the approval of an amended plan was also outside the power of the slip rule. The amended plan did not exist at the time the Commissioner made her order to grant consent on 26 February 2018. The plan was only brought into existence on 5 June 2018, as the revision number and date on the plan show. The plan is changed from being a traffic access plan showing the approved access to being a plan showing indicative future access changes. Al Maha submitted that the power of the slip rule to correct a mistake or error in an order does not extend to approving a plan of development that did not exist at the time the order was made.

19. [263]

    Huajun submitted that none of the amendments made by the Commissioner to the conditions of consent or the approved plans by the slip rule decision was substantive because the amendments did not alter the substance of the orders made by the Court on 26 February 2018. This submission was founded on Huajun’s argument that the original orders of the Commissioner did not grant consent to the construction of the driveway connection to Hilts Road. Huajun submitted that the slip rule amendment to the introduction of the conditions of consent had no substantive effect but was merely to avoid doubt in the construction of the development consent. The amendment to condition 1 changed the title to the plan, its revision number and date, but there were no substantial amendments to what the plans showed. None of the amendments to condition 115 were substantive. The two new paragraphs were to avoid doubt in the construction of the development consent. The amendments to the original first paragraph merely corrected the address and indicated the future access changes. The amendments to the original second paragraph to require development consent to be obtained for construction of the permanent access to Hilts Road had no substantive effect but merely recorded that a development application may be required.

20. [264]

    Huajun submitted that the slip rule could be used to carry into effect the actual intention of the Commissioner making the decision and orders (Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 at [116]). Huajun submitted that the Commissioner did not intend to grant consent to development on Al Maha’s land. The slip rule amendments carried that intention into effect and avoided doubt that the consent could be construed as authorising development on Al Maha’s land.

21. [265]

    At the hearing in this Court, Huajun made an alternative submission if the Court were to find, contrary to Huajun’s primary submission, that the development application and the consent granted by the Commissioner did in fact authorise the construction of the driveway connection to Hilts Road across Al Maha’s land. Huajun submitted that the parties’ intention in agreeing the terms of a decision that was acceptable to the parties was that the consent should not be granted to that development on Al Maha’s land. The Commissioner simply disposed of the proceeding in accordance with the parties’ decision. The parties’ intention thereby became the Commissioner’s intention. The slip rule amendments carried into effect the parties’ intention (and hence the Commissioner’s intention), making sure that the orders made and development consent granted did not have the consequence of approving development on Al Maha’s land, which the parties and Commissioner had intended to avoid.

22. [266]

    The slip rule decision was outside the power of the slip rule. The slip rule decision purported to amend order 3 made on 26 February 2018 to grant development consent to the development application on the conditions in Annexure A to the orders. As I have found earlier, the development for which consent was sought in the further amended development application and to which consent was granted included construction of the driveway connection to Hilts Road on Al Maha’s land. The slip rule decision purported to modify the development consent so as to no longer authorise the carrying out of this development on Al Maha’s land. It sought to achieve this modification of the consent by amending certain conditions of consent and substituting an amended plan. None of these modifications, however, could be described as corrections of “a clerical mistake” or “an error arising from an accidental slip or omission” in order 3 of the Commissioner’s orders or in the annexed conditions of consent. The order and the annexed conditions of consent did not contain any mistake or error in granting consent to the construction of the driveway connection to Hilts Road.

23. [267]

    The power under the slip rule could be exercised to correct mistakes or errors in the decision or orders of the Commissioner in order to carry into effect the intention of the Commissioner making the order: Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc at [116]. The relevant intention of the Commissioner is the objective intention, not the subjective intention, of the Commissioner at the time the decision and orders were made: Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc at [91], [102] and see Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 at [65]. The Commissioner’s ex post facto observation in making the slip rule amendments, that “these amendments confirm that the consent and approved plans do not authorise the carrying out of any development on 36 Leicester Avenue, Strathfield”, is at best “no more than evidentiary and may not even be admissible over objection”: Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc at [95].

24. [268]

    Where the order sought to be amended under the slip rule is an order of the Court granting development consent, the intention of the Commissioner (or Judge) who made the order is to be discerned from the reasons for judgment (if there are reasons) and a construction of the development consent granted by the Commissioner (or Judge). The approach to construction of the consent granted by the Court should be in accordance with the principles for construction of a development consent generally: see Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [24], [25], [42]-[48], and [154]-[163]; Cheetham v Goulburn Motorcycle Club Inc (2017) 223 LGERA 43; [2017] NSWCA 83 at [18]-[21], [61]; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 226 LGERA 54; [2017] NSWCA 263 at [16]-[24], [56], [63]-[65] and [158]; Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 at [34]-[35] and cases therein cited.

25. [269]

    In this case, the objective intention of the Commissioner is to be discerned from a proper construction of the order of the Commissioner granting development consent to the further amended development application and the consent granted by the Commissioner. The Commissioner provided no reasons for making the order to grant consent. The Commissioner’s intention is therefore to be discerned from a construction of the development consent granted by the Commissioner. On a proper construction of the development consent, the intention of the Commissioner was to grant consent to the driveway connection to Hilts Road across Al Maha’s land. The slip rule amendments sought not to give effect to this objective intention of the Commissioner, but instead to give effect to the different intention of not granting consent to the driveway connection to Hilts Road across Al Maha’s land.

26. [270]

    An application of the principles for construction of the development consent granted by the Commissioner would not permit reference to be made to the parties’ intention in reaching agreement under s 34(3) of the Court Act as to the terms of the decision that was acceptable to them. The parties’ intention cannot determine the Commissioner’s intention in granting the development consent.

27. [271]

    The amendments to the order and conditions of consent by the slip rule decision were substantive, for the reasons submitted by Al Maha and summarised above. The amendments changed substantively the development to which consent was granted, by removing the construction of the driveway connection to provide permanent access to Hilts Road. The amendment of condition 1 sought to approve a plan of the development that did not exist at the time the Commissioner granted consent. The amended plan sought to describe different vehicular access arrangements for the development. The amendments changed the assessment and approval of the development. The assessment of vehicular access under cl 101(2) of the Infrastructure SEPP was affected by the amendments. One amendment of condition 115 imposed a requirement to obtain development consent for the construction of the driveway connection to Hilts Road, where as the consent granted by the Commissioner had authorised the construction of the driveway connection to Hilts Road.

28. [272]

    The amendments sought to overcome the need to obtain the consent of Al Maha, as owner of land on which development is to be carried out, to the development application and thereby to give jurisdiction to the Court to grant consent to the development application. This attempt to cloak the Court with jurisdiction was beyond the power of the slip rule.

29. [273]

    The slip rule decision was, therefore, not authorised by the slip rule and should be set aside.

30. [274]

    I should also note that the slip rule decision did not cure the lack of jurisdiction caused by the Commissioner’s failure to form the opinions of satisfaction under cl 4.6(4) of the LEP necessary in order for the Commissioner to have power to grant consent to the development application. The slip rule decision was only intended to overcome the lack of jurisdiction to grant consent to development on Al Maha’s land in the absence of Al Maha’s consent as owner to the application. None of the slip rule amendments sought to, or could, overcome the jurisdictional error of the Commissioner in granting consent to the development application without first forming the necessary opinions of satisfaction under cl 4.6(4) of the LEP.

31. [275]

    Ground 4, the slip rule ground, is established.

The relief to be granted

1. [276]

   Al Maha seeks orders quashing the development consent decision and the slip rule decision, declaring the development consent to be void and of no effect, and restraining Huajun from taking any steps or any further steps in pursuance of or in reliance on the development consent, as well as an order for costs.

2. [277]

   Huajun contended that the Court, in the exercise of its discretion, would not grant the relief sought by Al Maha. In its response to the further amended summons and its written submissions, Huajun advanced numerous reasons why it said the Court should not set aside the Commissioner’s decisions or the development consent or restrain Huajun from carrying out development in accordance with the consent. These reasons included:

3. [278]

   At the hearing, however, Huajun conceded that these arguments as to why the Court should, in the exercise of its discretion, refuse to grant relief setting aside the Commissioner’s decisions and the development consent were only relevant to errors other than the error involved in granting development consent in the absence of owner’s consent. Huajun accepted that if the Court were to find that the consent of Al Maha as owner was required to the development application, but was not given, the development consent is not valid and should be set aside.

4. [279]

   I find that it is appropriate to set aside the Commissioner’s development consent decision and the slip rule decision and the development consent. The Commissioner’s decisions involved jurisdictional error. The Commissioner had no power to grant the development consent in the absence of Al Maha’s consent to the application as the owner of land on which the development is to be carried out and without forming the necessary opinions of satisfaction under cl 4.6(4) of the LEP. These jurisdictional errors were not “technical”, but were fundamental to the proper exercise of the Commissioner’s functions. The Commissioner had no power under the slip rule to amend the development consent decision and orders in the ways that she purported to do. The slip rule decision did not correct any mistake or error in the decision or orders made by the Commissioner, but rather sought to modify the development consent by changing the development to be carried out, the conditions of consent and the plans approved by the consent. Again, this error is not technical, but rather fundamental.

5. [280]

   As Huajun properly conceded, a consent granted to a development application in the absence of owner’s consent to the application is invalid and should be set aside. The same applies for the grant of consent involving other jurisdictional errors: the consent is invalid and should be set aside. So too the amendment of a decision or order of the Court outside the power of the slip rule: the amendment is invalid and should be set aside.

6. [281]

   Huajun’s argument that Al Maha is not prejudiced fails once it is accepted that the development consent authorised the carrying out of development on Al Maha’s land without Al Maha’s consent. Huajun’s argument that it is prejudiced because it has carried out work in reliance on the consent is insufficient to justify withholding granting the relief sought by Al Maha. The work that Huajun has done in reliance on the consent can only be to satisfy the deferred commencement conditions of the consent. Until those deferred commencement conditions are satisfied, the consent does not become operative and Huajun cannot lawfully carry out the development in accordance with the consent. Huajun has also been on notice since before Al Maha commenced these proceedings of the risk that the development consent is invalid. Huajun has elected to carry out work notwithstanding this risk.

7. [282]

   The effect of the Court setting aside the Commissioner’s development consent decision and the slip rule decision and the development consent would be that the Commissioner would need to re-exercise the function under s 34(3) of the Court Act to decide whether or not to dispose of the proceedings in accordance with the parties’ decision that had been reached in the s 34 agreement. If evidence of Al Maha’s consent as owner to the application is not forthcoming, the Commissioner will be precluded from disposing of the proceedings in accordance with the parties’ decision, as it is not a decision that the Commissioner can make in the proper exercise of the Court’s function. If the circumstances do not otherwise change, such as Huajun seeking leave to amend its application for development consent to no longer carry out development on Al Maha’s land or the parties’ reaching agreement as to the terms of a different decision, the Commissioner would need to terminate the conciliation conference under s 34(4) of the Court Act. The hearing of the proceedings, which has been adjourned, could then continue. Accordingly, there is utility in this Court setting aside the Commissioner’s decisions and the development consent. The Commissioner will not make the same decision or orders that the Commissioner made on 26 February 2018.

8. [283]

   The appropriate orders to set aside the Commissioner’s decisions, both the development consent decision and the slip rule decision, and to declare invalid the development consent are those proposed by Basten JA at [40]. There is utility in declaring the development consent invalid in addition to quashing the Commissioner’s decision to grant consent because of the new regime under the EPA Act for registration of consents on the NSW planning portal (see ss 4.20, 4.58 and 8.13 of the EPA Act and cl 264 of the EPA Regulation).

9. [284]

   Al Maha also sought an order restraining Huajun from taking any steps in pursuance of, or in reliance on, the development consent. The evidence does not establish that Huajun would or is likely to take any steps to carry out the development after the development consent is declared invalid. In these circumstances, there is not a threatened or apprehended breach of the EPA Act to restrain.

10. [285]

    As Al Maha has been successful, Huajun should pay Al Maha’s costs of the proceedings.

11. [286]

    I agree the Court should make the orders proposed by Basten JA in [40].