Charara v Kuring-gai Council - limitations on development control orders

In brief - in a recent decision the Land and Environment Court held that a Council could not unilaterally determine a development consent had lapsed and consequently issue stop work orders

In Charara v Kuring-gai Council [2019] NSWLEC 183 the Court held that its Class 1 jurisdiction is limited to merits review in nature and restricts the range of issues capable of being raised. If the stop work orders relied on a legal premise that the development consents were invalid, the proper course in this case was for Council to first seek a declaration from the Court that the development consents were invalid and then bring compliance action to prevent unauthorised work.

Background

Kuring-gai Shire Council (Council) issued a Stop Work Order (Order) to Charara prohibiting the removal of trees or building work on the basis that the development consents had lapsed. 

Charara appealed in Class 1 of the Court's jurisdiction. For the Order to be valid, Council needed to demonstrate that the development consents had in fact lapsed. The case raised fundamental questions about the scope of Class 1 and Class 4 proceedings and the Court's jurisdiction in each.

Applicant’s position

Charara argued that the development consents had not lapsed and were valid. At no point did the Council obtain any orders to set aside or declare void any of the development consents of the construction certificates issued thereafter. 

Further, Council had represented to Charara that the consents were valid and that Charara could rely on their terms. Charara incurred considerable expense in carrying out the works and relying on the validity of the development consents. Accordingly, the Council should be estopped from denying the validity of the development consent and construction certificates.

Council’s position

Council argued that the consents and the construction certificates could not have been validly issued and were a nullity. They acknowledged that they “purported to” grant approval to the modification applications in February 2015, but in fact had no power to do so. It was submitted that the development consent lapsed in line with section 95(6) (now s4.53) of the Environmental Planning and Assessment Act 1979 (Act), meaning that there was no consent upon which the Applicant could rely. The consent was invalid by operation of the Act, not by operation of any other rule or Council discretion.

Court's finding

Pain J held that as beneficiary of the consent, Charara was entitled to rely on the development consent and construction certificate, and be legally protected in doing so. A development consent, including its modification, is valid unless declared otherwise by a Court: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243.

Pain J emphasised that Council’s attempt to unilaterally re-exercise its power under the Act was an infringement of the fundamental administrative law principle that once a power has been exercised, only a court of competent jurisdiction is able to revoke or treat the decision as a nullity. It is not available to the original decision-maker to exercise their powers in a different way in order to reach a different conclusion. In short, it is not open to the Council to unilaterally determine that a development consent is invalid and issue control orders. The questions surrounding the development consents were complex and the competent jurisdiction for determining those questions is through Class 4 proceedings, not Class 1 proceedings. 

Implications

This on one view imposes a rigidity to the Court's Class 1 jurisdiction and questions the Court's collateral jurisdiction. The decision indicates there are limits to the Court's ability to deal with all matters underlying the litigation.

Councils need to give careful consideration to the assumptions underpinning enforcement action and exercise caution if an enforcement action relies on a legal premise that a development consent is invalid or has lapsed. 

Those the subject of an order need to consider whether the order rests on an assumption of invalidity of an administrative act, since that may create a basis for the order being beyond power and declaratory relief may be necessary.