Case note: Stannards Marine Pty Ltd v North Sydney Council [2021]

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Case note: Stannards Marine Pty Ltd v North Sydney Council [2021]

by Karen Arthur

Intro:

A judgment of the Chief Judge of the Land and Environment Court has reviewed the right of objectors to be heard on appeal.  In Stannards Marine Pty Ltd v North Sydney Council [2021] NSWLEC 66, the Court considered whether a number of objectors were entitled to be heard at the hearing of the appeal even where the objectors did not have an entitlement to be notified of the appeal.

The judgment is relevant to anyone who wants to assert (or refute) an ability to exercise the right of appeal.  In particular, the Chief Judge has found that a very recent decision of the Court was “clearly wrong”.

Background:

This was a Class 1 Appeal of the North Sydney Planning Panel’s refusal for development involving “demolition of existing water based structures and the installation and use of a new floating dry dock for maintenance and repair of marine vessels up to 750T” (the Development) at McMahons Point. The Development is designated development.

North Sydney Council (Council) notified persons, including people who had objected to the Development, of the appeal by Stannards Marine Pty Ltd (Stannards) as per s 8.12(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). Seven objectors then applied to heard at the hearing of the appeal. The Registrar ordered three objectors be heard at the hearing pursuant to s8.12(3) of the EPA Act.

Stannards opposed the applications of the objectors to be heard at the hearing of the appeal, claiming the objectors do not have a right to be heard under s 8.12(3) of the EPA Act because they did not have an entitlement to be notified of the appeal under s 8.12(1)(a).

Stannards’ Argument:

Section 8.12(1)(a) states (with emphasis added) “an objector, in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division”.

Section 8.12(3) states “[a]nyone who is given any such notice of appeal is… entitled to be heard at the hearing of the appeal if not already a party to the proceedings”. As noted by Preston CJ, “The reference to “any such notice of appeal” is a reference to the notice of an appeal required to be given under s 8.12(1)”.

Further, s8.8 provides (with emphasis added):

(1)  This section applies to the determination of an application for development consent for designated development (including any State significant development that would be designated development but for section 4.10(2)), being a determination to grant development consent, either unconditionally or subject to conditions.

(2)  A person who duly made a submission by way of objection during the public exhibition of the application for development consent (an objector) and who is dissatisfied with the determination of the consent authority to grant consent may appeal to the Court against the determination.

Stannards’ contended the objectors only had a right of appeal if the Development had been approved. Preston CJ summarises Stannards’ argument as follows:

None of the objectors therefore had a right of appeal under s 8.8(2). In this circumstance, Stannards argues, none of the objectors was an objector entitled under s 8.12(1)(a) to be given notice of Stannards’ appeal. As the objectors were not persons entitled to be given such notice of appeal, they could not be entitled under s 8.12(3) to be heard at the hearing of the appeal.

In taking this position, Stannards relied upon the decision of Pepper J in Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 20 (Barr Property).

Preston CJ’s consideration

Preston CJ refers to the relationship between expanding public participation in environmental planning and access to justice in NSW and the origins of the EPA Act and the Land and Environment Court. Preston CJ also refers to the more stringent assessment requirements for designated development compared to other development, including the need for applications for designated development to be accompanied by an environmental impact statement and public exhibition.

Preston CJ finds Stannards’ construction of s 8.12 of the EPA Act and the decision in Barr Property to be ‘clearly wrong’ [48]. He relevantly states [48], [50]-[51]:

The objectors are persons entitled under s 8.12(1)(a) to be given notice of Stannards’ appeal under s 8.7(1) of the EPA Act and the Council was correct in giving notice under s 8.12(1) to them. The objectors are also persons who are entitled to be heard at the hearing of Stannards’ appeal, provided they made application to the Court within 28 days after the notice was given.

That status as an objector entitles the person to appear in any appeal against the determination of the consent authority of the application for development consent for designated development. The nature of the objector’s appearance in the appeal differs depending on the determination of the consent authority of the development application.

If the determination is to grant consent, the objector may appeal in their own right against the determination to grant consent to the development application for designated development. If the determination is to refuse consent, the applicant for development consent may appeal against the determination of the development application for designated development and the objector may apply to be heard at the hearing of this appeal by the applicant for development consent. Either way, an objector is entitled to be heard on an appeal against a determination of a development application for designated development.

Preston CJ refers to the “twin entitlements” of an objector, including the entitlement:

  1. “to appeal against a determination to grant consent to designated development”; and
  1. “to be heard at the hearing of an appeal by an applicant for development consent”.

He notes these entitlements have remained “constant” throughout amendments to the form of public participation provisions of the EPA Act. In particular, Preston CJ states:

The language of s 98 and s 97(2) of the EPA Act as made was clear in giving objectors the twin entitlements to appeal if the determination is to grant consent and otherwise to apply to be heard at the hearing of an appeal by an applicant for development consent. Nothing in the legislative amendments in 1997, 2010 or 2017 altered these twin entitlements of objectors. If the legislature had intended to curtail or abrogate either of these twin entitlements of objectors, such intention would need to be expressed “with irresistible clearness”: Al-Kateb v Goodwin at [19].

Preston CJ distinguishes between a “right of appeal” and an ability to “exercise the right of appeal”, relevantly stating [74]:

As earlier noted, the person who has a right of appeal under s 8.8(2) can only exercise this right if the determination of the consent authority is to grant consent to the development application for designated development. Nevertheless, whilst a determination of a consent authority to refuse consent may mean that an objector cannot exercise the right of appeal under s 8.8(2), it does not mean that the objector does not have a right of appeal under s 8.8(2).

Preston CJ provides four reasons in the text and context of s 8.12(1)(a) to support his reading of s 8.12(1):

  1. Under s 8.12(1), the reference to “the right of appeal under this Division” arises in respect of “an application for development consent” not “how that application is determined by a consent authority” (i.e. any application seeking development consent not only those applications which have been consented to). This is in contrast to s 8.8(2), which provides that an objector only has a right of appeal where they are “dissatisfied with the determination of the consent authority to grant consent”

 

  1. If an objector’s right of appeal under s 8.12(1)(a) is based upon s 8.8(2) then Council would have to determine whether the person is “dissatisfied with the determination of the consent authority to grant consent” – this is not something a consent authority can make an assumption about (e.g. an objector’s concerns may have been addressed through conditions of consent an accordingly they may no longer be dissatisfied with the development)

 

  1. Often determinations that are appealed by an applicant are refusals. If s 8.12(1) were to be interpreted as only applying to circumstances where an objector’s right of appeal may be exercised under s 8.8(2), this would mean objectors could only receive notices of appeals by an applicant in a limited number of circumstances [79].

 

  1. The “language and structure” of s 8.12(1)(b), which is similar to s 8.12(1)(1) supports the above interpretation. Section 8.12(1)(b) provides notice must be given to an applicant and consent authority “in the case of an appeal under this Division by the objector concerning the application for development consent”. Objectors can only appeal under s 8.8(2) against a decision of the consent authority to grant consent. Preston CJ reasons:

 

The qualifying phrase in paragraph (b), therefore, describes the circumstance in which the persons identified are entitled to be given notice as being, “in the case of”, an appeal by an objector under s 8.8(2).

Preston CJ further notes this construction of s 8.12(1) and (3) promotes the purpose of the EPA Act regarding community participation, which is an interpretation to be preferred as per s 33 of the Interpretation Act 1987 and R v A2; R v Magennis; R v Vaziri (2019) 93 ALJR 1106; [2019] HCA 35 at [37].

Decision:

The Registrar’s decision to order the three objectors were entitled to be heard was correct. All seven objectors were entitled to be heard at the hearing of the appeal.