The ‘amber light’ approach adopted by the Land and Environment Court involves the delivery of an interim judgment which falls short of an outright refusal of an appeal, but which identifies elements of concern in the application which, if amended, could result in the appeal being upheld and the application approved. In the recent decision of Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19, being an appeal under section 56A(1) of the Land and Environment Court Act 1979 (Court Act), the Council challenged a determination of the Court, granting approval to a Bunnings store at Pymble, on the primary ground that the Court had, in an earlier judgment in the same proceedings, refused the application, thus precluding the Court from resorting to the amber light approach.

Bunnings Properties Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1658

In the first hearing of the proceedings, Bunnings sought approval for the construction of a four-storey building and its use for hardware and building supplies, road widening and driveway access from Ryde Road, situated at Pymble.

The Commissioner ultimately found, in his judgment of 20 July 2016, that the proposed development was not acceptable in the form presented to the Court. The Commissioner’s concerns related to, amongst other things, compliance with a 20m setback requirement, landscaping, the absence of outside storage areas and architectural design. The Commissioner went on to observe that “[this] is not to say that a “Hardware and building supplies”, in some form, is not capable of being constructed on the site. …”

During closing submissions, senior counsel for the applicant submitted that, if the Court were to find that the proposed plans were not acceptable, the applicant should be given the opportunity to address the concerns raised by the Council, including the breach of the 20m setback to the Pacific Highway and the design quality of the building, with amended plans. The Commissioner ultimately accepted that submission, with the following proviso:

[106] In coming to this conclusion, it does not follow that approval will be granted if amended plans are provided.

During a subsequent hearing on 5 December 2016, the Court granted Bunnings leave to rely on amended plans. A further merits appeal followed on 24-28 March 2017, with the Court ultimately upholding the appeal, handed down on 16 May 2017, in what was cited as being the Court’s “final decision”. The Court gave its reasons for allowing the amended plans, which the Court was satisfied did not render the amended proposal a “new” application.

Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19

On appeal to a single judge of the Land and Environment Court, under s56A of the Court Act, the Council contended that the Court’s first decision really amounted to a refusal of the development application, without an order to that effect. That being so, it was not open for the Court to allow Bunnings to present a further proposed development for ultimate approval by the Court.

Bunnings, on the other hand, argued that the Court’s first judgment represented “interim findings” or, as styled by Commissioner Brown, a “Directions for Amended Plans”. In short, the judgment did not constitute a final and operative decision.

Bunnings submitted that section 56A(1) of the Court Act provides that a party may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. The Court’s interim findings or its subsequent decision to grant Bunnings leave to rely upon amended plans were not final, operative or determinative decisions upon which s56A(1) could be invoked. The only determination for which s56A(1) may be available was the Commissioner’s final determination dealing with the amended plans. That determination, Bunnings asserted, was not infected by any legal error.

Findings

The Court observed that it was very clear from the Commissioner’s first judgment that, although he held some residual concerns about the appeal, he intended and/or purported to adopt the so-called “amber light” approach, although that precise term was not used in the judgment. The Court therefore rejected the Council’s contention that the Commissioner’s first decision was effectively to refuse the application.

The Court noted that the amber light approach had no statutory basis, but it was nevertheless a “practice”, if not a “policy”, established and circumscribed by a series of decisions of the Court. “Applied appropriately it does not offend the principle of finality, nor any principles underlying the Civil Procedure Act 2005 regarding the “just quick and cheap” disposition of proceedings.”

The Court cited the Chief Judge in Marinkovic v Rockdale City Council [2007] NSWLEC 71:

[22] There should be a capacity for an applicant in class 1 proceedings before the Court to amend its application to respond to evidence, including evidence of a court appointed expert, and to address concerns of the court that is hearing the appeal. A respondent council should expect that an applicant might need to respond in this way. That is to say, such amendments should be seen to be part of the usual process of conducting a class 1 appeal in this Court… 

The Court then turned to the well-established principles to be considered by the Court in s56A review proceedings: [1]

(a) the appeal is limited to a question of law, and not concerned with errors of fact;

(b) the error of law must be identified by the Appellant, and shown to be of a sufficiently material character as to vitiate the entirety of the Commissioner’s decision;

(c) the Commissioner’s reasons must be adequate, but should not be examined with a “fine tooth comb” in an endeavour to discover error; and

(d) the Court is not to take an overly critical or “pernickety”, legalistic approach in examining the Commissioner’s decision, as if it were written by a lawyer.

In the present matter, the Court found no error of law in the Commissioner’s approach to the disposition of the appeal by way of an “amber light” approach. In the Commissioner’s first decision, the Court observed, he gave detailed explanations of his concerns with the DA before him, and provided the applicant with the opportunity to amend, in order to address those concerns. That first decision was clearly an “interim finding”.

The Council has, in challenging that finding, adopted an erroneously “fine tooth comb” approach, contrary to well established principles for the determination of s56A appeals.

Observations

The amber light approach remains an important discretionary option for the Court, on its own initiative or, more frequently, on application from an applicant, when faced with an ostensibly supportable application which, however, requires amendment before the Court will entertain granting approval. The alternative, being outright refusal, sends the applicant back to the ‘drawing board’ for re-design and re-lodgment of the application with the relevant consent authority, with all the costs and delays associated with that process.

The amber light approach will only be considered by the Court in circumstances where the suggested amendments will not significantly alter the proposal – they must be “minor and identifiable amendments, consistent with the application before the court”; … they must have merit warranting consideration and being of comparatively easy scope to address”.[2]

However, it must always be borne in mind by applicants that the operation of the amber light approach, or policy, is one of pure discretion, without any statutory or regulatory basis and without any right of appeal in circumstances where the Court chooses not to exercise the discretion.[3] It is an approach that should never be assumed to be available.

 

 

 

[1] Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55 (at para. 5); Tanious v Georges River Council [2016] NSWLEC 142 (at para. 10)
[2] Ali v Liverpool City Council [2009] NSWLEC 1327
[3] Luxe Manly Pty Limited v Northern Beaches Council [2016] NSWLEC 156. See article “Court Rejection of ‘Amber Light’ Approach is Not Grounds for Appeal” posted 20 December 2016.