Posted on January 23, 2020 by James Fan and Sue Puckeridge

Enforcement Issues in Merit Appeals – What are the limits?

A recent decision in the Land and Environment Court (Court) highlights a potential stumbling block for councils when taking enforcement action. The decision reinforces the fact that the Court’s Class 1 jurisdiction, being merits review in nature, is limited as to the range of issues capable of being raised and heard.

Careful consideration needs to be given to the matters that need to be proved to support the issue of a development control order and the correct jurisdiction in which to prove those matters.

In the decision of Pain J in Charara v Ku-ring-gai Council [2019] NSWLEC 183, the Court held that the Council was not able to unilaterally assert that development consents had lapsed. Such an issue needed to be raised in Class 4, being the Court’s supervisory jurisdiction.

Background

In April 2019, ┬áKu-ring-gai Council (Council) issued a stop work order (Order), being a form of development control order pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 (EPA Act). The Order sought to prohibit tree removal and building work being carried out on the applicant’s land and asserted that specified development consents had lapsed because the deferred commencement condition imposed on them were not satisfied within the required time.

The applicant appealed the Order in Class 1 of the Court’s jurisdiction pursuant to s 8.18 of the EPA Act.

The development consents which were said to have lapsed had been issued by the Council in September 2010 and had originally contained deferred commencement conditions. The deferred commencement conditions were deleted by the grant of modification applications by the Council in February 2015. At the time of modification, the requirements of the deferred commencement conditions had not been satisfied.

Construction certificates (CCs) were subsequently issued and works were carried out by the applicant in September 2015 and prior to the lapse of the consent. These works were relied upon by the applicant for the purposes of founding physical commencement under s 95 (now 4.53) of the EPA Act.

For the Order to be valid, the Council needed to demonstrate that the development consents had lapsed by operation of s 95(6) of the EPA Act.

The essential issue for the Court, as stated by her Honour at [26], was “whether the Council can unilaterally re-exercise its powers under the EPA Act in 2017 by asserting that the instrument issued by it in 2015, the modified development consents, were a nullity at law” because at the time the modifications were made, the consents had lapsed. This raised the issue of whether the Court had the power, in Class 1 proceedings, to render a development consent or CC invalid if that was the practical effect of the decision.

Decision

The Court held that, even though s 8.18 of the EPA Act permits the LEC to revoke, modify a development control order or substitute another order in its place, it could not deal with all relevant matters necessary to resolve the issues between the parties.

The Council’s assertion that the modifications were not lawfully effective, infringed upon the administrative law principle that a decision maker cannot, on its own, revoke or treat its decision as a nullity once administrative power has been exercised. Well established principles hold that a development consent, including its modification, is valid unless declared otherwise by the Court: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243.

The circumstances on which the stop work order had been issued were legally complex and best considered by a judge in Class 4 proceedings. This included the applicant’s assertion that it had physically commenced works under relevant development consents. This was also a matter that needed to be raised in Class 4 proceedings.

Conclusions

An important factor in the Court’s decision was that the Council’s approach of disavowing its own administrative decisions had considerable legal and other consequences for the applicant. Although previous decisions of the Court in its Class 1 jurisdiction have held that a consent had lapsed, there were a number of distinguishing factors in the subject proceedings. These include the fact that:

  • Council had purported to modify the relevant development consents but disavowed their approval of those applications;
  • CCs were issued following the modified consents;
  • Works were carried out in purported reliance on those modified consents and CCs;
  • There was a claim for estoppel as the applicant had incurred substantial costs by relying upon the purported modifications.

The decision does not suggest that Councils need to obtain declaratory relief before being satisfied as to all matters for the issuing of development control orders. However, if the proposed enforcement action of issuing an order relies upon a legal premise which must be proved, declaratory relief may be necessary. A common example is if a private certifier has issued a questionable complying development certificate and a developer has commenced works in reliance upon it.

For information regarding this post, or principles discussed, please contact James Fan on 02 8235 9706 or Sue Puckeridge on 02 8235 9702.